There is another interesting turn of events in the ongoing scandal over the alleged arson by Texas Supreme Court Justice David Medina and his wife. While state Judge Jim Wallace agreed to the prosecutor’s demand to toss out the indictments, he strongly criticized both the decision and the competence of the prosecutors — voicing obvious questions over why prosecutors would seek an indictment over months only to quash those indictments when they are handed down by a grand jury.

Justice Medina and his wife Fran Medina were indicted by a Houston grand jury in connection to the alleged arson in June at their home. He was also charged with the arson and his wife with tampering of evidence. However, Rosenthal immediately indicated that he would kill the indictment on the ground of insufficiency of evidence – a claim that has raised concerns over special treatment by the jurist.

The fire destroyed the 5,000-square-foot house. It also destroyed a neighbor’s home and damaged the home of a third neighbor.A prosecutor has an ethical obligation not to prosecute individuals with the evidence is insufficient and Texas prosecutors have often been criticize for prosecuting without using such discretion in past cases.Yet, fire experts found that arson was behind the fire. The Dallas Morning News also reports:

Harris County fire officials believe the June blaze, which destroyed the Medina home and a neighbor’s house and did nearly $1 million in damage, was intentionally set. Their initial investigation focused on six people close to the justice, and was fueled by a trail of financial troubles for Mr. Medina’s family.In 2004, the Medinas failed to pay nearly $10,000 in county and school district taxes, resulting in a lien on their home. A year later, a mortgage company attempted to seize the couple’s home, claiming they had not made a payment in four months. The suit was resolved out of court. The Medinas’ home insurance policy had lapsed because of unpaid premiums.

The Harris County District Attorney’s Office came in for a blistering reception in Wallace’s courtroom. The judge not only expressed suspicions about the actions of the office but noted that blunders prevented the grand jury from continuing its investigation: “Why did they bring the case to the grand jury if they didn’t want the grand jury to do its job? . . . At that point in time, you ought to stand by, and abide by, what the grand jury wishes to do.. . . The unusual aspect of this case is that it was dismissed so quickly. It should have been allowed to run its course.”

Wallace discussed the failure to file papers to extend the grand jury and how such mistakes only make it more difficult to get people to serve since they ask “Why waste our time?”What is also interesting is that the revolt in the grand jury seems to be growing. There were eight grand jurors who spoke with reporters after the hearing rather than the two who previously went public.

The prosecutors insist that they will still seek indictments, though they seem determined not to prosecute the justice and his wife. Assistant District Attorney Vic Wisner insisted that “If I wanted to help the Medina’s and bury the case I would never have bought it to a Grand Jury in the first place.” He insisted that the Medina trial would have been “show trial” without sufficient evidence.

However, that still does not explain why he sought the indictment and why a grand jury was convinced by the evidence. Even stranger is his statement that he had asked an “outside investigative agency to pursue the remaining investigative leads” in the Medina case. He has refused to explain what agency is working on the case. If the case is viewed as an interstate fraud matter, it could be the Federal Bureau of Investigations or even a state body to look into a broader conspiracy or fraud. Yet, that does not explain why the prosecutors did not seek further investigation by the grand jury.

By failing to file paperwork to extend the grand jury, the prosecutors scuttled not only the Medina indictments but at least 30 other indictments in fraud cases. The prosecutors explained that the head of their grand jury section had left the office and the new person failed to see the mistake. They pledged to bring new indictments for the other unrelated case.After Rosenthal refused to prosecute, two of the grand jurors who voted to indict went public with complaints and engaged in an open quarrel with Medina counsel, Terry Yates. Yates in turn has called for their punishment in allegedly violating grand jury secrecy. For many, it raised the same images of the ongoing Rocky Flats grand jury controversy.

For full disclosure, I am counsel to the Rocky Flats grand jury which was criminally investigated for going public with their allegations of prosecutorial misconduct and a cover-up of crimes committed at the Rocky Flats Nuclear Weapons Plant in Colorado. Click here and here.

Grand jury forman Bob Ryan and assistant foreman Jeffrey Dorrell are accused by Yates of breaking grand jury secrecy by speaking out against the decision to toss out the indictments. Yates has even alleged political motives behind the indictment and public accusations since Medina’s conservative record.Notably, like the Rocky Flats grand jury, Ryan and Dorrell have been publicly responding to claims that they were “runaway jurors.” Ryan objected in a letter that Yates’ comment “impugn the integrity of twelve citizens of Harris County who have given up considerable amounts of their time to insure justice is done.” Another lawyer called them “nutty.”

In the meantime, Yates has continued his attacks, particularly against Dorrell, a gay activist who was a former president of the Log-Cabin Republicans. He notes that Rosenthal argued before the U.S. Supreme Courtto uphold the state’s now-defunct sodomy law in 2003 and Medina is viewed as hostile to gay rights.The case could present some interesting questions for grand jury secrecy. Dorrell and Ryan appear to have been careful not to discuss witnesses or testimony — the core area of secrecy. However, grand jurors rarely speak of their service in public absent extreme circumstances like Rocky Flats where actual crimes are alleged.

Of course, it is now very common for trial jurors to do so, as recent controversies demonstrate (click here).Judge Wallace’s comments and the growing number of grand jurors going public will make the question of sanctions even more interesting. The grand jurors basically made some of the same comments as the judge — though they were obviously also referencing their views that the evidence was sufficient. It is not clear that such statements are covered by grand jury rules. The rules do not prevent public statements — only the disclosure of grand jury evidence, material, and other sealed matters. The indictment and the identity of the Medinas was already public when they made their public comments.

The growing number of former grand jurors also raise the curious image of Rosenthal refusing to prosecute Justice Medina while actively pursuing the citizens who indicted him. Nevertheless, in fairness to Rosenthal, he does have an obligation to drop any indictment that is not supported by the evidence. Judge Wallace’s questions should be answered, however. The question is by whom?For the latest story, click here