Monday, July 28, 2008

Man takes law into his own hands: Dripping Springs resident shows how citizens can bypass law enforcement.

By Steven Kreytak - AMERICAN-STATESMAN STAFF - Sunday, July 27, 2008

Gary Conner is not a lawyer, and he's not a cop. He's a Dripping Springs food service truck driver who says he has a healthy respect for the law.

That was enough this year for the 53-year-old to ignite a Travis County grand jury investigation into so-called "ghost voting," the practice of lawmakers at the Texas Capitol voting electronically for colleagues who are not at their desks.

The investigation wrapped last month with the grand jury issuing a report, condemning the practice and calling on the legislators to stop or change their rules, which prohibit members from voting for each other.

Conner didn't see lawmakers given the criminal charges he thinks were warranted, but, he achieved a rare feat by getting his criminal complaint considered by a grand jury, bypassing law enforcement and the district attorney's office in the process.

He relied on a seldom-utilized Texas law that allows grand juries, bodies that meet in secret and decides whether there is probable cause to issue indictments charging a crime, to take up criminal allegations from ordinary citizens. Usually, the district attorney chooses the cases presented to the grand jury.

Conner's effort required persistence with the Travis County district attorney's office and help from a state judge. It appears to reveal avenues for citizens to have criminal complaints investigated and evaluated directly by a panel of fellow members of the community.

"Now, people realize that the grand jury belongs to us. It doesn't belong to the DA," Conner said. "If we're ever going to get our government back — if it's a government of the people, by the people and for the people — at some point in time, the people have to be respected."

House officials say that the practice of members voting for absent colleagues dates back to the 1920s, when electronic voting began. A KEYE television news report on the practice was posted on YouTube last year and has been viewed more than a million times. Lawmakers said it stirred up a storm of anger from constituents. One of them was Conner.

Instead of writing his representative, Conner researched the Texas penal code. Soon, he believed that the lawmakers shown in the news report were guilty of tampering with a government record and impersonating a public servant.

But Conner, a past delegate to a Republican party convention, was afraid that the issue was "too political" to be investigated by the Travis County district attorney's office, which has the authority to investigate state officials through its public integrity unit. Travis County District Attorney Ronnie Earle has been accused by some lawmakers of allowing politics to dictate whom he prosecutes, a charge that he has denied.

A defense lawyer Conner knows told him about a rarely-used part of the Texas Code of Criminal procedure that charges grand juries with investigating matters brought to them by any "credible person."

Article 20.09 of the code states: "The grand jury shall inquire into all offenses liable to indictment ... of which they shall be informed by the attorney representing the State, or any other credible person."

Armed with a copy of this law, an affidavit stating he is a credible person and a complaint he wrote that claimed 11 members of the Legislature violated the law, Conner in October went to the Blackwell-Thurman Criminal Justice Center, where grand juries meet.

He approached Nancy Gayle, a longtime grand jury bailiff, and said he wanted to hand his complaint to a member of the grand jury when they were not deliberating. Gayle refused, Conner said, and sent him to the district attorney's office. (Gayle no longer works as a bailiff and could not be reached for comment.)

Conner said assistants to Earle would not allow him to give his complaint to the grand jury and encouraged him to make his complaint with them.

The assistant district attorneys insisted that their office is not afraid of political cases, Conner recalled, and reminded him that they sought an indictment of former U.S. House Majority Leader Tom DeLay. Conner agreed to hand over his complaint to them, he said.

On Feb. 7, Assistant District Attorney Gregg Cox, head of the public integrity unit, wrote Conner stating that his complaint is under review and that "this office will not make any further comment ... until the review is completed." Prosecutors later determined that no crime was committed.

Conner later asked defense lawyer Paul Velte, whom he supported when Velte ran for Hays County district attorney in 2006, if Velte "knew any judges that had any kind of regard for the Constitution."

On Velte's recommendation, Conner called state District Judge Charlie Baird.

Baird, who has been applauded by defense lawyers for what they call standing up to prosecutors, reviewed Conner's complaint and determined that he had a right to give it to the grand jury.

Baird submitted copies of Conner's allegations and DVDs of the KEYE report to two members.

Baird said it would be ideal for such citizen complaints to go through the district attorney's office, or at least to be passed by the district attorney's office to the grand jury members. But in cases when citizens feel they are being denied the ability to make their complaints, he encourages them to approach the judge that has empaneled a sitting grand jury.

Claire Dawson-Brown, chief of the grand jury division of the Travis County district attorney's office, said that Conner's complaint was mishandled. She said her office should have reviewed the complaint to make sure it was "a viable complaint," something she said Conner clearly had.

She said without that minimal screening, "you'd have all kinds of people showing up with all kinds of complaints," such as "someone with paranoid schizophrenia saying, 'People are planting bugs in my head.' "

Jim Harrington, director of the Texas Civil Rights Project, which keeps watch on police and prosecutors, said the right of a citizen to have his complaint investigated by a grand jury without the consent of law enforcement "is one of the remnants we have of a real participatory part of the criminal justice system."

Harrington said he has previously mailed written complaints to grand jury members' by home addresses. Although the identities of grand jurors are not subject to open records laws, the minutes of their proceedings, which contain the name of the foreperson and any absent members, are publicly available at the district clerk's office.

Harrington said he cannot recall ever learning that his complaints were investigated.

Cutting law enforcement out of the equation "is a check to avoid corruption," Harrington said.


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