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January 19, 2008

If Ever We Needed A Special Prosecutor (BUMPED)

The indictment of Texas Supreme Court Justice David Medina raises a lot of questions, including several not related to his guilt or innocence or that of his wife.

The Harris County District Attorney's office this morning dismissed the indictments returned Thursday against Texas Supreme Court Justice David Medina and his wife in connection with the fire that destroyed their home in Spring last summer.

A grand jury handed up the indictments despite objections from Rosenthal's office. Today, the district attorney's office said it would continue to investigate the fire in relationship to the Medinas but not in a prosecutorial mode.

* * *

Rosenthal insisted there is not sufficient evidence to charge the Medinas with involvement in what arson investigators determined was a deliberately set fire. The blaze caused almost $1 million worth of damage to three homes in the Olde Oaks neighborhood in Spring.

Medina, the first Supreme Court justice indicted since Donald Yarbrough was charged with perjury and forgery in 1977, was indicted on a charge of fabricating evidence, specifically a letter he gave investigators about the incident. His wife, Francisca, is accused of setting the fire that destroyed their 5,000-square-foot home and damaged two nearby houses.

Bail was set at $20,000 for Francisca Medina and $5,000 for her husband. Both offenses are felonies. The arson charge carries a punishment of probation to 20 years in prison. Evidence tampering or fabrication would be punishable by probation to 10 years.

Now the charges here are serious. I don't know how strong the evidence is. But the OTHER current situation involving DA Chuck Rosenthal and his stated unwillingness to see this case through to prosecution leads me to believe that there is a need for some sort of special prosecutor to handle the case.

This is especially true in light of the (possibly illegal) statements of the grand jury foreman and assistant foreman.

According to the jurors, it was just one more blow to justice when Rosenthal indicated Thursday that he would seek to dismiss the indictments.

''This is ludicrous," said foreman Bob Ryan, a real estate broker, who at 63, said he has served as foreman of at least four grand juries. "Mr. Rosenthal never put his head in the door and heard one word of testimony."

* * *

The jury, whose term was slated to end in November, continued working for three months to hear more evidence. But about a month ago, Ryan said the prosecutor handling the case, Vic Wisner, told him that neither he nor Rosenthal thought there were grounds for indictment.

Wisner didn't return my call to his home late Thursday, and Rosenthal wasn't returning the Houston Chronicle's calls Thursday.

A couple of weeks ago, when Ryan and Dorrell were trying to set up a date for the grand jury to meet again, the two jurors said Wisner tried to talk them out of it.

"He seemed very upset," Dorrell told me. "He said, 'Why are you guys meeting? This isn't a viable case.' "

Then Thursday, when Ryan told Wisner what indictments he wanted prepared, Ryan said the prosecutor refused: "He said, 'I will not do it.' And I said, 'Well, get your boss in here.' And he said, 'He knows all about it.' And he slammed the door and left. He came back later and said, 'All right, I'll prepare the indictments.' "

If the indictments are dismissed, Ryan said, grand jurors may try to re-indict. It's unfortunate when a panel must go to such lengths to carry out justice.

Now these stories, if true are troubling. But before I accept the argument that the move to stop or dismiss these indictments is based upon politics, I have to ask how much of the decision to present the case to the jury was based upon politics in the first place. I also have to wonder to what degree the DA's office was required to present the case to the grand jury under statute, given that certain types of potential offenses are required to go before a grand jury. Of equal concern, though, is the possibility that we have a runaway grand jury overstepping its bounds, based upon the threat to reindict the Medinas.

Consider this a suspicious house fire takes place at the home of a top judge who is a member of the dominant political party in the state and county. A decision not to take the case to the grand jury, no matter how weak the evidence, would clearly be seen as political. A DA (or ADA) might legitimately present the evidence in hand with a recommendation that the case be no-billed due to the lack of evidence. And remember, the accused is not permitted to present or rebut any evidence only the prosecutor's office has a voice in that room, so the prosecutor's case is the only one seen by the grand jury. Prosecutorial discretion can, and does, at times lead to a request for dismissal of an indictment in the interest of justice. After all, the DA should not be prosecuting a person that he believes to be innocent merely because there is an indictment in hand whether that person is a powerful politician or the poorest citizen in the county. And the standard of evidence to get an indictment (probable cause) is NOT the same as that required to get a conviction in a criminal court (proof beyond a reasonable doubt), meaning that it is quite possible that Rosenthal and his office are correct in stating that there may not be sufficient evidence to pursue the case to a conviction.

But in this case, we have a DA whose actions in office have been manifestly unacceptable, as shown by the scandal that has cost him his place on the ballot and subjected him to a state investigation. In light of that, Chuck Rosenthal's judgment that there is not enough evidence to successfully prosecute a case is suspect. We just cannot trust Rosenthal and his office on that one, because he has already called the integrity of the office into question by his prior actions. If anyone needed evidence of the necessity of Chuck Rosenthal's immediate resignation, this would be it. Some sort of independent prosecutor needs to examine the case, so that a fresh set of eyes examines the facts and conducts the trial.

Let's also not one other thing we don't know what the evidence is against David Medina and his wife because the indictments contain very little specificity. If it is as is presented in the Chronicle, I have to wonder how strong a case there is. Financial difficulties and a fire in the garage do not necessarily add up to arson and I know that most garages have plenty of accelerants to fuel a fire were one to break out. We will likely have to wait for the trial to find out if there is one.

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