What’s better than getting a felony case dismissed: getting a no bill of indictment before it is even filed. Getting a no bill of indictment means that the grand jury rejects a case for prosecution, which nips the case in the bud before it can even be filed. It cannot be re-filed or come back after being no-billed. However, getting a no bill of indictment requires showing the grand jury that there is not a legitimate case to prosecute, a much lower burden of proof than showing that the State cannot prove a case beyond a reasonable doubt. Because the standard of proof—or level or certainty required—is much lower, getting a case indicted is very easy compared to proving it at trial. It is for this reason that phrases like “you could indict a ham sandwich” have arisen, since an indictment is really just an accusation, not proof. With the right approach, however, serious felony cases can be no-billed before they even get started. Dallas criminal lawyer Walker Fults explains with three recent real life cases studies how to get a no bill of indictment.
Case Study 1: Collin County Sex Assault No-Billed After Defendant Confesses on Tape
A good criminal defense attorney is able to quickly perceive the degree to which a client is involved in criminal activity. Despite having confessed to the offense by name, I realized that Client #1 had not actually committed the offense. By speaking with many eyewitnesses, it became clear that he had been goaded into confessing to something out of a desire to accommodate a friend’s perceived hurt. Out of a desire to ameliorate hurt feelings and put the issue in the past, he said the words she wanted to hear, not knowing the call was being recorded. (Recording calls is legal in Texas with consent of one of the parties on the line.)
With a taped confession like that, police referred the case to the DA’s office. The Client hired Dallas criminal defense lawyer Walker Fults, who started investigating the facts more closely. It became apparent in talking to witnesses that there was more to the story than it first seemed. The complaining witness in this particular case had made overtures towards the Client in the past. A key witness described that the Client had the chance to sleep with the girl previously, but had not, wanting a relationship instead of casual sex. Another key witness, the only one sober that night, described how the complaining witness had made sexual innuendos directed at the Client, inviting him to sleep with her.
I took a calculated risk and also called the young woman on the phone as well. After speaking with her for over an hour, I learned more about her perspective on the matter, her feelings towards my client, and what was motivating her to make these serious accusations. Although the call was ultimately fruitless, in many similar cases it is well worth the time when the complaining witness says outright that he or she does not want charges to go forward.
In the end, Walker Fults brought together the affidavits from multiple eye witnesses and a direct, concise letter which explained why the Client was not guilty and the allegations against him were not supported. Against the odds, the case received a no bill of indictment.
Case Study 2: Cooke County Possession of a Controlled Substance Felony Rejected for Prosecution After Illegal Dog Search
An international college student about to graduate hired Dallas criminal defense attorney Walker Fults after being stopped on the road and found in possession of a controlled substance: psychedelic mushrooms. The Client was stopped for invalid registration, a technicality, and the officer started to ask questions about whether the Client had any drugs in the car. On a hunch, the officer asked for consent to search the vehicle, which the Client refused. The officer then immediately called for a canine unit to come perform an open air search of the outside of the vehicle. The officer continued to write a ticket for invalid registration and eventually finished all his business on the stop before the dog unit arrived. After an awkward silence, the officer mentioned, “we’re just waiting for the canine unit to arrive.” After six more minutes, the canine unit arrived, performed a brief open air search of the vehicle, and alerted. Once the dog alerted, officers made a lengthy search of the car and eventually found the mushrooms, leading to an arrest and felony charge.
Upon hearing the story from the Client in the initial consultation, Walker Fults identified immediately that the dog search might pose a legal issue with the State’s case under the 2015 Supreme Court case Rodriguez. Although that case did not outlaw all dog searches, it did hold that officers may not prolong a search to wait on a dog unit to arrive. In Rodriguez, the detention was five minutes; in the Client’s case, it was six minutes. Walker Fults reviewed all the evidence, drafted a legal motion to suppress based on the Rodriguez legal issue, and contacted the felony prosecutor before grand jury. After discussing the legal issue in the case, the felony prosecutor rejected the case for prosecution and pushed it to the misdemeanor prosecutor. The misdemeanor prosecutor dismissed the case as well. The client was cleared of all charges, before grand jury, because Walker Fults’s legal brief correctly showed that the officer had improperly detained the Client in order to arrange the dog search.
Case Study 3: Dallas County Surgeon No-Billed on Sex Assault
Perhaps my most challenging case involved a Dallas area surgeon who was accused of misdemeanor assault family violence and felony sex assault. After speaking with the complaining witness many times, the investigating officer, and the Client, it was apparent that the case was a difficult one involving serious allegations and an enormous amount of resistance from the DA’s office. The first encounter with the State involved a Dallas misdemeanor prosecutor who attempted to frustrate a hearing requested by both the Client and the complaining witness (“victim”) to remove a no-contact bond condition. The prosecutor was so animated by a desire to win that she actually told the complaining witness not to come to the scheduled hearing. Nevertheless, Walker Fults stood firm and made sure that the witness was given an opportunity to speak.
From that point on, a dark cloud of unusual resistance on the part of the State lingered against the backdrop of a Client’s expectations for total victory. The one advantage I had on the case was that the complaining witness was adamant that she did not want the case to be prosecuted. Without her as a witness, the State would never have been able to prove its case. Against even my own Client’s expectations, I identified that the complaining witness would never testify against my Client, even though she had serious reservations about episodes of his behavior. With the knowledge that she would not testify against him, I indicated to the DA’s office that we would not accept any outcome other than a dismissal, and were prepared to try the case if necessary. I asked the State to talk to the complaining witness as much as possible, to ensure the prosecutors realized she was dug in on her position. After a few arduous months, Client #3 was finally given a No Bill of Indictment.
Analysis:
These three recent case studies of real legal matters show the importance of strategy, hard work, and a cooperative mindset in negotiations that returned the best result on all three cases: a no bill of indictment before the case even got started. Case #1 was won by identifying the real story underneath the surface and bringing it out with multiple eyewitness affidavits. Case #2 was won by identifying an issue of law—the unlawful search—that required the State to give up the evidence gained as a result of that search. Case #3 was won by taking a counter-intuitive approach of turning a potential adverse witness into a cheerleader for my Client.
Each case is different and requires a unique approach to legal defense. At the end of the day, evidence of a crime boils down to stories. The real story comes from the primary source: the person who saw what happened, or the video of the incident itself. Finding the point of law or issue of fact which helps my Client the most—paired with aggressive and persistent advocac—is the best path to a successful case outcome.
Have you been charged with an un-indicted felony case (or any criminal case) in Dallas or the surrounding north Texas area? Call Dallas criminal defense lawyer Walker Fults today at 214-838-0557 to schedule a free consultation exploring your options. Walker Fults works on each case until obtaining the best possible result.
