In the multicounty grand jury system, Oklahoma prosecutors have a powerful tool to investigate allegations of crimes and public corruption across counties.
But their power is not unlimited. A presiding judge is needed to approve subpoenas, and case law from several court rulings over the years places a check on prosecutorial conduct.
Now the multicounty grand jury is back in the spotlight, with attorneys from separate court cases alleging that Oklahoma County District Attorney David Prater misused the grand jury process.
A former investigator for Prater alleges he obtained subpoenas through the multicounty grand jury without sufficient evidence, seeking to investigate criminal justice reform advocates for political reasons. Prater and other prosecutors have opposed a number of reforms pushed by the group.
In another case, attorneys for an Oklahoma County district judge allege Prater improperly used the multicounty grand jury to secure misdemeanor tax charges against the judge after she refused to recuse herself from all cases involving Prater’s office.
Prater has denied any wrongdoing. He told a reporter from The Oklahoman that he looked into Oklahomans for Criminal Justice Reform after hearing concerns from two legislators, but he found no wrongdoing. In court filings, Prater said his prosecution of Judge Kendra Coleman occurred after media investigations into her tax returns. He did not return calls from Oklahoma Watch.
Secrecy and Subpoenas
The multicounty grand jury operates in secrecy dictated by law. It’s a powerful investigative tool that can issue indictments, but not every investigation ends up with charges filed. Secrecy helps investigators build their case. It also protects potential targets or witnesses from disclosure of their involvement in open court if nothing comes of the investigation.
Through the multicounty grand jury, district attorneys have the power to direct investigations behind closed doors. The latitude that prosecutors have in the process can be intimidating. Mike Cantrell, an Ada oilman active in state politics, recalls being pulled into an investigation 15 years ago.
“I fear no man. I fear no adversary. I don’t even fear death. But I’m scared to death of the potential misuse of the Oklahoma multicounty grand jury system,” Cantrell said.
In 2004, Cantrell, a Democrat at the time, was active in lawsuit reform efforts, such as reducing what business groups thought were frivolous lawsuits, with Tulsa businessman John Brock, a Republican. Their group, Oklahomans for Lawsuit Reform, had run ads targeting Democratic lawmakers who were opposed to lawsuit reform. The Oklahoma Legislature was transitioning to Republican control, and two Democratic senators called for a campaign finance probe of Cantrell and Brock using the multicounty grand jury.
“I lawyered up and spent time with a lawyer going over the system and how it worked,” Cantrell said. “And I remember his quote to me was, ‘You may be as white as the driven snow, but the day you get called in front of a multicounty grand jury, it’s going to be the worst day in your life.’ I still remember that.”
Then-Attorney General Drew Edmondson, a Democrat, decided not to prosecute and Cantrell never appeared before the jury.
“General Edmondson was supported by the trial lawyers, and he did the right thing,” Cantrell said. “I would hope regardless of your own political ideology that any officeholder would follow the law and do the right thing and not use it as a political tool.”
Oklahoma County District Judge Timothy Henderson, the presiding judge over the current multicounty grand jury, said it can issue several thousand subpoenas and interview hundreds of witnesses during a typical 18-month term. Jurors, who are drawn from across the state, usually meet for three days each month. They hear about investigations into everything from bogus checks to murder; secrecy is a key part of the proceedings.
“I admonish the witnesses each time they are going to testify to remind them of the secrecy that they can’t talk to anybody other than legal counsel what their testimony is or even what questions are asked,” Henderson said.
Henderson was not the presiding judge who approved Prater’s subpoena for Oklahomans for Criminal Justice Reform and the American Civil Liberties Union in late 2017. That judge, Oklahoma County District Judge Thomas Prince, said he could not comment on specific grand jury actions.
Outside of the monthly sessions, the presiding judge signs subpoenas requested by investigators and prosecutors across the state. For example, the most recent multi-county grand jury issued 1,093 subpoenas and helped 45 law enforcement agencies during its term.
Henderson said officials from the attorney general’s office usually drop off a stack of subpoenas once or twice a week. He reviews the subpoenas and occasionally has questions.
“There’s usually something I’ll call back on and sometimes don’t sign and need to get further information on,” he said.
Henderson said the multicounty grand jury can’t issue subpoenas that would constitute an invasive search and seizure under the Fourth Amendment – blood samples, for instance. An Oklahoma Court of Criminal Appeals decision in 1993 outlined some of the subpoena restrictions, although it stated, “A grand jury subpoena issued through normal channels is presumed to be reasonable, and the burden of showing unreasonableness must be on the recipient who seeks to avoid compliance.”
The court also said the multicounty grand jury occupies a unique role in the criminal justice system. “The grand jury can investigate merely on suspicion that the law is being violated, or even because it wants assurance that it is not.
“However, grand juries are not granted unlimited investigatory powers and they are not licensed to engage in arbitrary fishing expeditions. Nor may they select targets of investigation out of malice or an intent to harass. A grand jury subpoena is not some talisman that dissolves all constitutional protections.”
Prosecuting a Judge
Prater and Coleman have been locked in a dispute since May, when Prater asked the judge to recuse herself from all civil and criminal matters involving his office. He said she had failed to file judicial campaign reports with the Oklahoma Ethics Commission and not knowing her contributors could make it hard to find out who had “undue influence” over her. Coleman denied his request for recusal.
Coleman, who acknowledged her late campaign reporting, said Prater’s recusal request stemmed from his dislike of her rulings in pre-trial motions in a pending dog-mauling case. According to a court transcript in the tax case against Coleman, Prater told the judge in a closed-door meeting that he had filed a judicial complaint against her and was seeking a removal petition from the multi-county grand jury.
“I am telling you now, I’m seeking [your] removal from the bench, and I will be contacting the Attorney General this afternoon and asking him to move forward on a petition to remove you before the Multi-County Grand Jury,” Prater said, according to the Sept. 4 transcript. “You need to be aware of that, Judge. This is not a threat.”
(A spokesman for the attorney general’s office, which runs the multicounty grand jury, said it can be used to start a judicial removal, but Prater chose not to.)
Two weeks later, Prater secured an indictment against Coleman from the multicounty grand jury on four counts of failure to file taxes from 2015 to 2018. Prater said he sought the indictment after a media report about her unpaid taxes. Prater later dismissed those charges and filed a felony tax evasion charge against Coleman on Oct. 28 for late payments on her 2017 taxes.
Coleman’s attorneys filed a motion last week arguing she can’t be evading taxes if she already started a payment plan to both state and federal authorities before the felony was filed. They also want Prater removed from the felony tax case.
“A fair-minded, objective observer could easily conclude that the misdemeanor and felony filings are in retaliation for Judge Coleman’s denial of Oklahoma County District Attorney David Prater’s wrongful disqualification attempts,” Coleman’s attorneys said in the motion.
The attorneys alleged false information was presented to the multicounty grand jury on the now-dismissed misdemeanor tax charges. By the time of the indictment, Coleman had filed the tax returns for 2015 to 2018. They have requested a transcript of the testimony before the multicounty grand jury. Although the proceedings are secret, defendants are allowed to see a transcript if they are charged with a crime.
It’s unclear how many tax evasion cases Prater’s office has filed in recent years. Failing to pay state income taxes on time is not uncommon: So far In 2019, the Oklahoma Tax Commission has filed more than 54,800 tax warrants against taxpayers. The commission files tax warrants when taxpayers haven’t taken steps to pay their tax liabilities. It attaches as a lien on real or personal property and must be paid before the property is sold.
Meanwhile, Prater’s office is appealing to the Court of Criminal Appeals on his request for Coleman’s recusal of all criminal and civil cases involving his office. Earlier this month, a district judge ruled against Prater, saying the matter should be handled by the Council on Judicial Complaints and ultimately the Court on the Judiciary.