Port v. Heard
| Decision Date | 18 September 1984 |
| Docket Number | Civ. A. No. H-84-3751. |
| Citation | 594 F. Supp. 1212 |
| Parties | Bernard and Odette PORT v. Jack HEARD, Sheriff of Harris County, Texas. |
| Court | U.S. District Court — Southern District of Texas |
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Randy Schaffer, Randy Schaffer, P.C., Houston, Tex., for petitioners.
John B. Holmes, Dist. Atty., Brad Beers, Harris County Asst. Dist. Atty., Jim Lavine, Houston, Tex., for respondent.
Pending before the Court is the application of Bernard and Odette Port (hereinafter "the Ports") for a writ of habeas corpus. The Ports filed a motion to set bond and stay the order of contempt entered against them in the 179th District Court of Harris County, Texas for refusing to testify before the grand jury. This motion was filed at the same time as the application for writ of habeas corpus. On September 13, 1984, this Court held an expedited hearing on both the merits of the application and the motion. At the conclusion of the hearing, the application was taken under advisement and the motion was denied. The motion to stay the order of contempt and set bond sought relief which was injunctive in nature, and it is well-settled that federal courts should not enjoin state criminal proceedings absent a clear showing of extraordinary circumstances. E.g., Sparks v. Garrison, 446 F.Supp. 649 (M.D.N.C.1978), aff'd, 612 F.2d 1310 (4th Cir.1979). Concluding that the Ports had not shown such extraordinary circumstances and had not established a substantial likelihood of success on the merits, the Court denied the motion to stay. Upon a thorough review of the record and arguments before us, the Court concludes that the application for writ of habeas corpus should be denied as well.
The Court hereby enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52(a), F.R.Civ.P., which constitute the grounds for our decision to deny both the motion to stay and the application for writ of habeas corpus.
On June 8, 1984, David Isador Port was arrested and on the following day was charged by complaint with the offense of murder in Cause No. 404,955. The complaint alleged that in Harris County, Texas, on or about June 7, 1984, David Port intentionally and knowingly caused the death of Debra Sue Schatz by shooting her with a firearm. Bail was fixed in the amount of $20,000 and David Port was released on bond signed by Bernard Port as cosurety on June 9, 1984. The case was scheduled for preliminary proceedings, including a probable cause hearing, on June 11, 1984.
David Port is the natural son of Bernard Port. Odette Port is David's stepmother. David, a seventeen year old student, resides with the Ports at 10314 Lynbrook Hollow in Houston, Texas. On June 11, 1984, the Ports appeared with David in the 179th District Court for the preliminary hearing. At that time, they were served with subpoenas to appear before the grand jury of the 176th District Court and to testify concerning the death of Debra Sue Schatz. An examining trial was set for June 22, 1984.
The Ports appeared before the grand jury but declined to testify in reliance upon the privilege against self-incrimination, whereupon the State filed motions to compel their testimony and to grant use immunity. Both motions were granted by the Court. Subpoenas were again served on the Ports, commanding them to appear before the grand jury on June 15, 1984. On that day, the Ports filed a motion to quash the subpoenas. A hearing was set for June 18, 1984, and the Court abated the grand jury subpoenas.
The motion to quash asserted a parent-child privilege based on constitutional guarantees of privacy and freedom of religion. Further, the Ports contended that the State was attempting to conduct improper pretrial discovery via the grand jury investigations, thereby abusing the grand jury process. The Court conducted an evidentiary hearing and then denied the motion to quash and ordered the Ports to testify before the grand jury instanter.
The evidence shows that the grand jury was investigating whether there was sufficient probable cause to indict David Port on charges of murder or capital murder. Further, the investigation sought to determine the possibility of affirmative defenses, such as insanity. Specifically, the grand jury sought to obtain information from the Ports regarding (1) their activities, communications and observations regarding the day and events in question; (2) any statements made to them by David Port regarding the alleged offense; (3) possible motives for the alleged homicide; (4) evidence which might indicate the commission of a capital offense; and (5) David's background and his social, emotional, and mental histories. While the State's prosecutors have conceded that pretrial discovery could result as an incidental by-product of the grand jury's investigations, it is clear that pretrial discovery was not their primary or principal reason for continuing their efforts before the grand jury.
The Ports appeared again before the grand jury and reiterated their refusal to testify. The refusal was predicated on the privilege against self-incrimination and on an asserted parent-child privilege. As a result of this refusal, the Ports appeared before the Court and were admonished of the consequences of their continued refusal to testify as to "relevant and proper questions." The Court then ordered the Ports to show cause why they should not be held in contempt. The show cause hearing was set for June 27, 1984.
David Port appeared before the 179th District Court on June 22, 1984, for his examining trial. David waived his right to indictment (pursuant to Art. 1.141 of the Texas Code of Criminal Procedure) in open court and in writing. The Court accepted the waiver of indictment, entered a plea of not guilty and dismissed the examining trial as moot.
At the conclusion of the Ports' show cause hearing (on June 27, 1984), the Court found them to be in contempt for failing and refusing to answer questions properly propounded to them before the grand jury. Fines of $500 were imposed on each of the Ports and they were ordered to be confined in the Harris County jail until they purged themselves of the contempt.
The Ports filed an application for writ of habeas corpus and a motion for bond in the Texas Court of Criminal Appeals. That Court ordered the Ports released on bonds and ultimately granted them habeas corpus relief based on certain procedural irregularities in the contempt orders. The Court's opinion did not reach the merits of the Ports' contentions regarding the privilege issues and the challenges to the propriety of the grand jury proceedings.
On August 8, 1984, the Ports were again served with subpoenas to appear and testify before a grand jury (for the 179th District Court). The Ports filed a motion to quash the subpoenas or, in the alternative, for the issuance of a protective order. Evidence and arguments were presented to the Court, and on August 21, 1984, the Court denied the Ports' requests, granted them use immunity upon request of the State, and ordered that they return to testify before the grand jury. They again refused to testify, asserting a parent-child privilege, a husband-wife privilege, and the privilege against self-incrimination. Moreover, they contended that the questions were beyond the scope of a proper grand jury investigation.
The Ports returned to the 179th District Court for a hearing to determine the propriety of their refusal to testify before the grand jury. The Court concluded that the refusal to testify was improper, that the questions propounded to them were relevant and proper, and that the Ports intended to persist in their refusal. A show cause hearing was held on August 28, 1984, and the Court concluded that the Ports were in contempt. The Court imposed fines of $500 each and ordered that the Ports be confined in the Harris County jail until they purged themselves of the contempt. Motions for bail were denied, and the Ports were placed in constructive custody until they were freed by a subsequent order of the Court of Criminal Appeals granting them release on bond.
An application for writ of habeas corpus was filed with the Court of Criminal Appeals. By order dated September 10, 1984, that court denied the application without discussion of the merits. The September 10, 1984, order also withdrew the order granting the Ports release on bond. As a result, the Ports surrendered to the Sheriff of Harris County, Texas, on September 12, 1984, and they are currently confined in the Harris County jail.
Debra Sue Schatz was acting in the course and scope of her employment as a United States Postal Service mail carrier at the time of her death. Hence the United States Postal Inspector became involved in the joint investigation conducted by state and federal authorities. Her murder could be prosecuted in federal court as could any offense by a person who aided and abetted the murder or who obstructed justice after its commission. To date, the federal authorities have filed no charges of any kind relating to the murder of Ms. Schatz. The United States Attorney for the Southern District of Texas has neither sought nor obtained any immunity for the Ports.
The Court has jurisdiction over the instant matter by virtue of 28 U.S.C. §§ 1331, 2241 and 2251.
At the outset, the Court concludes that the state district court had jurisdiction and acted properly in the issuance of its contempt orders regarding the various procedural requirements found in the Texas Code of Criminal Procedure. See e.g., Art. 20.15 Tx.C.C.P. Further, the contempt orders are sufficiently specific to notify the Ports of the nature of their contempt.
We turn next to the various constitutional issues presented in the Ports' application. The Ports contend they were denied due process when the district court held them in...
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Port v. Heard
...as parents, to refuse to testify against their son. The court denied the petition on September 7, 1984, and this appeal followed. 594 F.Supp. 1212 (D.C.Tex.). Meanwhile, the Ports appeared before the grand jury on November 7 and 9. The district court determined that Bernard Port had purged ......
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U.S. v. Furrow, CR 99-838 NM.
...powers of the grand jury are necessarily broad if its public responsibility is to be adequately discharged.")); Port v. Heard, 594 F.Supp. 1212, 1217 (S.D.Tex.1984) ("Traditionally, the grand jury has been accorded wide latitude to inquire into violations of criminal "The investigative powe......