HOUSTON -- A spike in "no-bills" in Harris County has led some in law enforcement to express concern about serious criminals walking free without ever facing trial, possibly to commit another crime in the Houston area.
Ruth Malone said her family is haunted by the knowledge that the person who murdered her brother, Marty Koci, remains at large.
What disturbs her even more, is that homicide investigators with the Harris County Sheriff’s Office say they believe they know who the killer is. In fact, they made an arrest. Yet, the career criminal, who they claim to have a pile of evidence against, never went to trial to face a jury of his peers.
Instead, Clarence Laday went free and is back on the streets in the community.
It happened after the district attorney’s prosecutors failed to convince a Harris County grand jury that the sheriff’s office had probable cause to make the arrest. So the grand jury issued a no-bill to Laday, instead of an indictment.
Law enforcement experts say no-bills, in and of themselves, can be used for many good purposes in order to keep our justice system healthy.
It's one way they make sure purely innocent people do not have to go through painful and sometimes expensive trials.
However, a KHOU-TV investigation has discovered the number of no-bills issued in Harris County has spiked upwards by more than 40 percent between 2008 and 2009, when first-term District Attorney Pat Lykos took office.
Clarence Laday is one of the many no-billed and set free in 2009 after being arrested for a multitude of serious reasons.
Sgt. Ron Hunter of the Harris County Sheriff’s Office said he believes it was a mistake.
"No doubt in my mind a jury of his peers would find Clarence Laday guilty of murder," Hunter said. "There just seems to be no end to what he won't do and murder being one of them."
Hunter led the homicide investigation looking into Marty Koci's death. He said Laday is a career criminal with a 20-year history of going in and out of jail for serious crimes like assaulting family members, drug offenses and more.
It’s not only the defendant’s history that convinced Hunter to hone in on Laday. It turns out, the car Marty Koci owned and was murdered in was later sold to Clarence Laday’s half-sister.
"When they pulled the seat cover off, they discovered bullet holes in the seat, as well as dry blood," Hunter said. He said the blood they found would later be tested and determined to be Koci’s.
What’s more, witnesses said they saw Laday associating with the murder victim at the Crosby Motel, not long before Marty Koci disappeared.
Hunter said he also traced the murder weapon itself back to Laday.
"He was in possession of that gun at the time Marty was killed," Hunter said.
The gun, a glock pistol, has become the center of a debate. Hunter said law enforcement officers recovered it from Laday’s truck during a traffic stop. Investigators said a bullet recovered from Koci’s skull is a match for the kind of gun in Laday’s truck.
However, Laday, a convicted felon who would face prison time if he were caught with a firearm, told the cops the gun didn’t belong to him. He said, instead, it belonged to a friend who was in the truck with him at the time. At first, that same friend was someone who investigator Hunter considered a suspect. But as more evidence came to his attention, Hunter examined the new information, and said he realized Laday had been trying to set up that associate all along.
"Clarence told us he saw (his friend) pull that gun out of his waist and stick it under the mat and I don't believe that was the truth," Hunter said.
Hunter said he has good reason to believe Laday did not tell the truth:
"Clarence made a Freudian slip when he was interviewed by the polygraph examiner. During the pre-interview the examiner asked when was the last time you saw that gun? He said, ‘Well the last time I saw that gun was when I placed it under the mat.’ Of course, that puts Clarence in possession of that gun. I mean, it’s his truck. He would know where that gun was and he would know how it got there."
Hunter said the polygraph test itself did not do Laday any favors.
"He was only asked two questions: Did you kill Marty Koci? Were you present when Marty Koci was killed? Pretty simple," Hunter said.
Hunter called the official results “total deception."
However, when Laday’s friend, an early suspect in the Koci murder, was asked the same questions by the polygraph examiner, Hunter says Laday’s friend showed "no deception."
In Harris County, prosecutors are allowed to present polygraph results to grand juries. The specific prosecutor who took the Laday case to a grand jury would not tell KHOU-TV if he presented those results in this case, citing the secrecy of grand jury proceedings.
Hunter, however, was given just one specific reason by the DA's office for the Laday no-bill.
"I was told I did not have an eyewitness in the case," Hunter said.
He said county prosecutors claimed that's why the Koci case was no-billed.
KHOU: "That was the only thing you were told?"
Hunter: "That was the only thing."
Former police officer and veteran private investigator Mark Stephens said the district attorney should have tried harder -- or taken different actions -- in this case.
"There have been plenty of convictions in a homicide case with no eyewitness," he said. "It takes a good prosecutor to know that."
Stephens was hired by Koci’s family to work the case. Eventually, Stephens would discover part of Koci’s body and other evidence, which would eventually tie back to Laday, he said. Stephens, too, said he believes Laday killed Koci.
Stephens said if the DA's prosecutor had doubts about the case, he should have waited to go the grand jury.
“[Because] a no bill exonerates him,” Stephens said. “Can he be charged later? Yes. But can the defense use that to bring doubt in the mind of a jury? Yeah."
All of which, makes the victim’s sister sick to her stomach.
"Our justice system is basically going to hell," Ruth Malone said.
Breaking Down The Numbers
It turns out around 96 percent of cases taken to the grand jury in Harris County still end in indictments and jury trials.
KHOU-TV took a closer look at those cases that, like Laday’s, ended in no-bills.
We obtained data from the Harris County District Clerk’s Office and found that in 2008 and in 2009 the amount of cases presented to the grand jury stayed roughly flat.
However, the number of no-bills rose from 800 cases in 2008 to 1130 in 2009 -- a 40-percent increase over the same time period.
We also found in many specific categories of crime, no-bills were trending up.
For instance, the number of no-bills for aggravated sexual assaults of children under 14 jumped by 26 percent, moving from 39 no-bills in 2008 to 49 no-bills in 2009.
Over the same time period, the total cases presented to a grand jury for that crime remained roughly flat as well.
In regard to aggravated assaults with a deadly weapon, we found a 32-percent increase in the number of no-bills, moving from 93 in 2008 to 123 in 2009. We found a 7-percent increase in the number of cases presented for that crime over the same time period.
No-bills for aggravated assaults on family members more than doubled in 2009, moving from 27 no-bills to 58 no-bills for the crime in 2009. That 115-percent increase in no-bills took place while the number of cases presented trended up by 23 percent.
Harris County Sheriff Adrian Garcia said he does not personally know the reason behind the trend of increased no-bills, but he said he is concerned about the danger to the community.
"These individuals are not being kept in custody. The danger is it could happen again," Garcia said.
KHOU: "Is there something to be concerned about?"
Garcia: "Well obviously."
Garcia was careful to point out he specifically does not blame grand juries, prosecutors, or anyone else, saying he does not have enough information to reach a valid conclusion as to who or what is to blame for the increase in no-bills. He does say, however, the public should look outside his office if it wants to find the source of the problem.
"What I would say to the citizens of Harris County is that my investigators are on the job," Garcia said.
When asked how he might back that statement up, Garcia said District Attorney Pat Lykos said her office believes the Harris County Sheriff’s Office is doing a good job investigating and presenting cases to prosecutors.
"Thankfully, I'm glad to hear she has not identified any concerns," Garcia said.
When we asked Lykos who was to blame, she responded by telling us:
"I think you are trying to create a urinating match between the sheriff and I, and I'm not going to become engaged."
Lykos did confirm one of the sheriff’s statements, saying she believes all law enforcement agencies in Harris County are providing good investigations for her prosecutors to pursue further.
However, unlike the sheriff, Lykos said she was not concerned with the increase we found in no-bills.
KHOU: "I'm wondering what might be the reason for that?"
Lykos: "I'm not going to speculate."
KHOU: "You don't think there's any reason to be concerned about the jump in no-bills from 2008 to 2009?"
Lykos: "I do not. I have full faith in all of my prosecutors."
In fact, for a while, Lykos claimed KHOU’s numbers were just plain wrong.
Lykos: "Mr. Greenblatt, I've heard of new math, we now have Greenblatt math."
A Dispute Over Numbers
The District Attorney’s office, at first, presented an alternate set of statistics to those that KHOU had gathered while trying to make the point that no-bills were not going up as fast as what KHOU had found.
At issue: KHOU had found a 40-percent overall increase in the number of no-bills in Harris County from 2008 to 2009, while the alternative numbers presented by the DA's office showed a slower climb.
KHOU sought to resolve the dispute by going back to the source we obtained our original data from -- the Harris County District Clerk.
The clerk’s office, the official keeper of court records in Harris County, researched the discrepancy by contacting the DA's office directly. After that conversation, the clerk’s office told KHOU the district attorney’s office made errors in the way they culled the data for their set of numbers.
However, the clerk’s office confirmed as accurate the 40-percent rise in no-bills which KHOU had calculated based off their data, and said the DA was using the wrong methodology to calculate both the number of no-bills and indictments.
A Potential Loophole In Oversight
KHOU-TV attempted to question Lykos about a potential loophole in oversight in her office. It turns out, lower-level prosecutors inside the Harris County District Attorney’s office that have a case no-billed must, in each and every case, have their case reviewed by a supervisor.
However, if a mid-level supervisor called a "court chief" has a case no-billed, they get to decide on their own if they forward the case to a supervisor for a review or not. If they don’t want oversight, they don’t have to have it.
Either way, a case can never be re-presented to a separate grand jury unless the elected district attorney decides to order that it takes place.
When KHOU-TV attempted to ask Lykos about the potential loophole, she forwarded us to a senior manager in her trial division for comment. When KHOU-TV then attempted to ask that manager to specifically comment on that potential loophole, the district attorney’s public relations officer Donna Hawkins cut off our interview.
Laday’s alleged videotaped confession
Both private investigator Mark Stephens and sheriff’s investigators say if the DA. could not get an indictment for murder against Clarence Laday, they could have taken him off the streets after Laday admitted in a videotaped interview to being in possession of a firearm, in relation to charges he pistol-whipped his ex-girlfriend.
The interview took place as a part of the murder investigation.
Stephens estimates that with Laday’s criminal record, a felon in possession of a firearm charge could bring as much as a 25-year conviction, with eight of those years being required to be served in jail, if it was proven the gun was used in a commission of a crime.
Sgt. Hunter and the Harris County Sheriff’s Office have contacted the DA's office, asking them to present at least that charge to a grand jury.
The District Attorney’s Office has not responded to KHOU-TV’s request for comment on that specific issue.
The District Attorney’s Grand Jury Division chief, Marc Brown, has contacted station management to say that rather than looking at the rise in the overall number of no-bills, he believes it is more telling to focus on the fact that 96 percent of cases taken to a grand jury still result in indictments. Further, he said, the resulting increase in the percentage of no-bills, as it relates to that larger number, has only gone up by a very small percentage.
Laday's court-appointed attorney in the murder case that was no-billed told KHOU-TV that he believed the reason Laday was no-billed, was that prosecutors lost faith in their ability to use his associate (a one-time suspect) as a reliable witness against him in the murder allegation.
Of note, a sad irony for the family of Marty Koci: After the no-bill for murder against Laday, the sheriff's office destroyed the murder weapon.
While that could make a case, in the future, more difficult to prosecute, the sheriff's office said it took meticulous notes about the gun and believes ballistics and other evidence would still be valuable and strong evidence for a jury to hear.
