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 the beneficiary of a particularly lenient 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 had failed to obtain an indictment against him.
In January 2025, the victim and her boyfriend traveled from their home in England to visit her father at his home in Collin County where the shooting had occurred. Although the evidence presented to a grand jury cannot be disclosed, it is reasonably assumed that the grand jury heard the statement made by the father to the police at the scene immediately following the shooting. He 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.
Even without the inculpatory details later revealed at an inquest held in England, the father’s admission that the gun had gone off when he picked it up demonstrates at least, that he had failed to perceive a substantial and unjustifiable risk of death arising from his failure to ensure that the gun was not loaded or that the safety was on. That his finger may have been on the trigger is an incriminating detail that the grand jurors seemed to have ignored.
As grand jury proceedings are secret, 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 re-presenting the case. Recently, the victim’s mother reasonably demanded that the prosecutor re-present the case to another grand jury. It is anyone’s guess whether that will happen. Is this a matter of a prosecutorial abuse of discretion or grand jury nullification or both?
An interesting contrast to the Collin County 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 jury indicted Goetz for two felony counts of criminal possession of a weapon. The public was outraged as it was not disputed that the four had been shot by Goetz. As reported in theopinion 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. Even if there was evidence presented to the grand jury that Goetz had not intended to kill, his intent was an issue for trial and did not preclude an indictment.
Just as the evidence was sufficient to indict Goetz for attempted murder, the evidence against the Texas father was sufficient to indict him for criminally negligent homicide, if not reckless homicide, as again, his intent was an issue for trial. But the Collin County prosecutor, in contrast to the Goetz prosecutor, seemed content to leave well enough alone and not seek to re present the case to another grand jury. 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 which did not vote to indict anyof the lawmakers. While it may be tempting to commend the DOJ for leaving well enough alone in this instance by not seeking to re-present the case, the determination to seek those indictments in the first place constitutes an ostentatious abuse of prosecutorial discretion. Although the violation of or failure to obey any lawful general order or regulation is prohibited by law, the violation of or failure to obey any unlawful general order or regulation is not prohibited. The DOJ, apparently, thought otherwise.
In my view, the failure of the Collin County prosecutor to re-present clearly sufficient evidence of criminally negligent homicide to another grand jury, and the DOJ’s presentation of clearly insufficient evidence against the lawmakers, present instances of prosecutorial abuses of a kind that seems more common today than in the days preceding the current administration. In both instances, justice is not served and the rule of law suffers.
Barbara Jaffe is a retired New York State Supreme Court Justice and volunteer for Lawyers Defending American Democracy (LDAD).
