Waco – 54th Criminal District Judge Matt Johnson sounded curious when he had heard the arguments from the State and Defense counsel regarding re-indicting felony offenses under the same cause number.
“When I was an Assistant District Attorney,” the Judge said, “any time you got a new indictment, you got a new cause number.”
That’s the letter of the Texas Code of Criminal Procedure, and it’s there to prevent any possibility of a defendant having to answer a charge in double jeopardy – a violation of civil rights.
Prosecutors explained the policy in use in the McLennan District Attorney’s Office was instituted by former First Assistant DA Greg Davis, with the assent of the District Clerk.
According to a prosecutor in the case against Marcus Pilkington, who was originally indicted for engaging in organized criminal activity at Twin Peaks Restaurant on May 17, 2015, then re-indicted for “rioting” in a subsequent presentation to the Grand Jury, the policy is a “matter of convenience.”
The Grand Jurors “do not pass on the caption,” said the prosecutor. “The Grand Jury passes on the body of the indictment.”
Under the present system, the same bond applies, the case is merely updated as to the offense.
It is the argument of Pilkington’s lawyers that it isn’t a proper way to do business when it comes to criminal charges.
“It sounds like they’re trying to superimpose something we use in civil procedure” to amend a petition as to its allegation of complaint, said Paul Looney, lead defense counsel in the Pilkington case.
“That gives rise to rights that are in the Code of Criminal Procedure…There is no authority for doing it this way, and it completely bypasses a defendant’s right to participate (in his own defense).”
His co-counsel, Mark Thiessen, said, “If they’re proceeding on a new indictment, the first one doesn’t disappear. There needs to be a motion to dismiss.”
According to Assistant DA Sterling Harmon, who handles appellate matters for the DA’s Office, “There has been no amendment of either indictment in this cause number.” He emphasized that the procedure under discussion is merely “a matter of convenience.”
At that point, the Judge said, “I would like to comment on this…”
Following a brief discussion with Looney, who said he will be tied up in another court case for at least a couple of weeks, he announced he will take the matter under advisement for at least a week.
The allegation of the motion to quash the Pilkington indictment hinges on more than 20 others in which the statute of limitations has tolled. If the new indictments must be sought under new cause numbers, there will be no way to do that.
Three additional indictments on murder charges are not affected by the statute of limitations.
So mote it be.
- The Legendary
For background information on this story, click here: