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Criminal Law No. 04-02-00402-CV, 6/18/2003. Click here for the full text of this decision FACTS: Harold Lloyd Shields seeks the disclosure of state grand jury proceedings related to his indictment for aggravated sexual assault. The grand jury investigation arose from the report of K.S., a 7-year-old girl living in Kerr County, that two male relatives and two other men had repeatedly sexually assaulted her over a period of several years. The grand jury indicted Shields on three counts of aggravated sexual assault. Later, K.S. recanted and the state dismissed its case against Shields. After the case against him was dismissed, Shields sued Donnie Jeanne Coleman and Carol Twiss, the prosecutor and the investigator, in the U.S. District Court for the Western District of Texas, alleging that their failure to present exculpatory evidence to the grand jury violated his civil rights and constituted malicious prosecution. As elements of his malicious prosecution claim, Shields sought to prove that the indictment was not supported by probable cause and the presence of actual malice. During discovery, Shields’ attorneys subpoenaed several grand jurors in an attempt to take their videotaped depositions. In response, Coleman and Twiss moved to quash the subpoenas and moved for a protective order preventing Shields from contacting the grand jurors. The federal district court granted the motions. After failing to get the federal district court’s permission to depose the grand jurors, Shields filed a petition in the 198th Judicial District Court to request disclosure of the grand jury proceedings. Specifically, Shields’ petition requested permission to depose several grand jurors regarding whether Coleman and Twiss had presented them with exculpatory evidence about Shields. Shields contended that he could show a “particularized need” for the deposition testimony as required by Texas Code of Criminal Procedure article 20.02(d). During the hearing, however, the trial court questioned whether Texas law imposes a duty on prosecutors to present exculpatory evidence to grand juries. The trial court spent a good deal of time in the hearing focusing on the duty issue: “But if there’s no duty to present exculpatory evidence, then how can that . . . be a need when it’s not even a duty of the prosecutor to present that?” The trial court later entered a judgment denying the petition. HOLDING: Affirmed. The court examines whether Texas law requires prosecutors to present exculpatory evidence to a grand jury. The court notes that the U.S. Supreme Court has squarely addressed the issue and has found that there is no duty to disclose exculpatory material to federal grand juries. U.S. v. Williams, 504 U.S. 36 (1992). In Williams, the Supreme Court examined the historical functioning of the grand jury system and stated that “requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury’s historical role, transforming it from an accusatory to an adjudicatory body.” Thus, the Supreme Court has held that there is no duty on the part of the prosecutors to present exculpatory evidence to the grand jury. Among the state courts there are essentially three views. Sharon N. Humble, Annotation, Duty of Prosecutor to Present Exculpatory Evidence to State Grand Jury, 49 A.L.R.5th 639 (1997). Some state courts hold that prosecutors have a broad duty to present exculpatory evidence to grand juries. Others hold that prosecutors have no duty to present exculpatory evidence to grand juries. The majority of the state courts that have addressed the issue have found that prosecutors have a limited duty to present exculpatory evidence to grand juries. This limited duty generally requires disclosure if the exculpatory value of the evidence is substantial. Only two Texas courts have addressed the issue. One court noted, in dicta, that “[j]ustice, of course, would best be served by a prosecutor affirmatively presenting a grand jury with any information which could affect its decision to return an indictment.” Sandoval v. State, 842 S.W.2d 782 (Tex. App. – Corpus Christi 1992, pet. ref’d). More recently, however, the First Court of Appeals, relying on Williams, noted that “generally, the state has no duty to present exculpatory evidence to a grand jury.” Matney v. State, 99 S.W.3d 626, (Tex. App. – Houston [1st Dist.] 2002, no pet. h.). The court agrees with the Houston court and apply the federal rule that prosecutors have no duty to present exculpatory evidence to the grand jury. Thus, Shields can show no particularized need to take the depositions of the grand jurors. The court finds that the trial court did not abuse its discretion in denying Shields’s petition. OPINION: Angelini, J.; before L�pez, C.J., Duncan and Angelini, JJ. DISSENT: L�pez, C.J. “[P]rosecutors should have a limited duty to present exculpatory evidence to a grand jury for several reasons, including: (1) a defendant’s state constitutional right to a meaningful indictment; (2) a Texas prosecutor’s statutory duty to see that justice is done; and (3) a Texas prosecutor’s statutory obligation not to suppress facts. Because the majority holds to the contrary, I respectfully dissent.”

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