It has been said that a good prosecutor can get a grand jury to indict a ham sandwich. Apparently, that’s not the case in very red Collin County, Texas, where a self-described recovering alcoholic fatally shot his daughter in the chest, only to be let off the hook by a sympathetic grand jury. As a retired justice of the New York State Supreme Court, the case intrigued me and I tried to understand why the prosecutor, upon failing to obtain an indictment, did not try again.
In January 2025, the victim and her boyfriend traveled from England to visit her father at his home in Collin County where the shooting occurred. Although evidence presented to a grand jury cannot be disclosed, it is reasonably assumed that the grand jury was provided with the statement made by the father to the police at the scene immediately following the shooting. In that statement, the father related how he had taken his daughter, at her request, to see his gun, and that when he brought her to his bedroom and removed the gun from a cabinet in which he kept it, “it went off.” He could not recall if his finger had been on the trigger.
At an inquest held in England, a coroner ruled that the daughter’s death was the result of an “unlawful killing.” Even without the facts on which the British coroner had based her findings, the father’s admission that the gun had gone off when he picked it up demonstrates, at least, that there was probable cause to believe that he had failed to perceive a substantial and unjustifiable risk of death arising from his failures to ensure that the gun was not loaded, that the safety was on, that his finger was not on the trigger, and that the gun was not pointed at his daughter’s chest.
As grand jury proceedings are secret (Texas Constitution and Statutes, Art. 20A.202), it is impossible to know why the grand jurors did not indict the father, nor is there any procedure by which a prosecutor may address such a failure apart from conducting further investigations and/or seeking court leave to re-present the case to the same or a different grand jury. Recently, the victim’s mother demanded that the prosecutor re-present the case to another grand jury. It is anyone’s guess whether that will happen.
Having presented the case to a grand jury, the Texas prosecutor presumably knew that the case was supported by probable cause, as Rule 3.09 of the Texas Disciplinary Rules of
Professional Conduct prohibits a prosecutor from prosecuting a charge that he or she knows is not supported by probable cause. But absent a specific Texas rule regarding the re-presentation of a case to the grand jury, the prosecutor likely had a great deal of discretion in making that determination, notwithstanding the strength of the evidence. Because at least nine Texan grand jurors determined that there was no probable cause to believe that the father committed a crime in fatally shooting his daughter, it was an easy call for the prosecutor to decline re-presentment.
And yet, prosecutors, even those serving in Texas, are dutybound to “serve[] the publicinterest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. . . . [and] should consider the interests of victims and witnesses . . .” American Bar Association, Criminal Justice Standards, Standard 3- 1.2[b] Functions and Duties of the Prosecutor. Given these duties, and despite the breadth of the prosecutor’s discretion, one may legitimately question whether the Texas prosecutor served the public interest and duly considered the victim in deciding not to re-present the case.
An interesting contrast to the Texas case is the famous New York case of “subway vigilante” Bernhard Goetz. On December 22, 1984, while seated in a New York City subway car, Goetz was approached by four teenagers, two of whom asked him for $5. Feeling menaced, Goetz opened fire, crippling one and injuring the others. On December 31, 1984, the grand juryindicted Goetz for two felony counts of criminal possession of a weapon. The public was outraged as it was undisputed that Goetz had shot the four teens. As reported in the opinion of Chief Judge Sol Wachtler of the Court of Appeals of the State of New York, in March 1985, the prosecutor re-presented the case to a newly empaneled grand jury which indicted Goetz for attempted murder in the second degree and other offenses. The question of whether Goetz intended to murder the teens was an issue for trial and did not preclude the murder indictment.
As the evidence was sufficient to indict Goetz for attempted murder, so too was the evidence sufficient to indict the Texas father for a homicide, which can range from criminally negligent homicide to an intentional homicide, the intent being an issue for trial. But the Texas prosecutor, in contrast to the Goetz prosecutor, seemed content to leave well enough alone. I guess in Texas, guns kill people after all.
In a substantially weaker case than the two described above, the United States Department of Justice (DOJ), without compunction, pursued indictments against six Democratic
lawmakers who appeared on videotape urging military personnel to refuse to carry out illegal orders. Not surprisingly, the DOJ was rebuked by the grand jury. While it may be tempting to commend the DOJ for not seeking to re-present the case, the determination to seek those indictments in the first place constitutes an ostentatious abuse of prosecutorial discretion because although the violation or failure to obey any lawful general order or regulation violates 10 USC 892, logic dictates that it is not a violation to fail to obey any unlawful general order or regulation. While the DOJ apparently thought otherwise, it was dead wrong, which unmistakably reveals the political motivation behind the case.
In my view and notwithstanding the Texas prosecutor’s enormous discretion, the failure to re-present the evidence to another grand jury, like the DOJ’s presentation of clearly insufficient evidence against the lawmakers, is an instance of a prosecutorial abuse of discretion of a kind that seems more common today than in the days preceding the current administration. In both instances, justice was not served, dealing yet another blow to the rule of law.
And yet, prosecutors are protected from discipline by their broad discretion and from prosecution by absolute immunity. As public outrage likely induced the Goetz prosecutor to re present that case, the victim’s mother may seek to muster public outrage to “inspire” the prosecutor in her daughter’s case. Of course, whether the good people of Collin County, Texas, are outraged by such a clear miscarriage of justice remains to be seen, but after all, guns don’t kill people, people kill people.
Barbara Jaffe is a retired New York State Supreme Court Justice and volunteer for Lawyers Defending American Democracy (LDAD).
