VIEWPOINTS: DA SHOULD EXPLAIN HIMSELF BETTER

District Attorney John B. Holmes needs to give the public a better
explanation of why he does not file charges and ask grand juries to
indict police officers who appear to have used illegal force, as in
the Pedro Navarro Oregon case. Holmes has said that any shooting
involving a question of self-defense, whether it is police-related or
not, goes to the grand jury without charges being recommended ("Police
less likely to be indicted for misconduct," Chronicle, June 7).

Even if the public accepts the implicit assumption that all shootings
by police involve a question of self-defense, Holmes has not explained
why the possibility of that defense, out of all the ones in the Texas
Penal Code (insanity, mistake, duress, necessity, entrapment, etc.),
keeps him from making a judgment that the defense is not available in
a particular case and seeking an indictment.

Holmes defended his policy by pointing to some of his other policies,
such as taking several kinds of cases to the grand jury without filing
charges -- all cases in which homeowners have shot someone, cases of
child abuse or felonies that involve worthless checks ("A man of
conviction; DA stoutly backs grand jury no-bill in Pedro Oregon
Navarro shooting," Chronicle, Nov. 29). It is not sufficient to
justify a questionable policy by referring to other questionable policies.

An unscientific, nationwide computer survey I conducted of more than
400 newspaper articles over the last 10 years revealed numerous cases
of a district attorney's sending a case of violence to the grand jury
without filing charges or seeking an indictment. In almost every one
of those cases, the district attorney was John B. Holmes. My survey
confirmed that his policy is not at all restricted to shootings by
police, but that does not justify the policy.

A district attorney has what is called "prosecutorial discretion" in
such matters as whether or not to file charges and to seek an
indictment. Judicial review is practically nonexistent. Only the
public can decide whether the elected district attorney has wisely
exercised his discretion. The public deserves a full explanation of
Holmes' policies.

Neil C. McCabe, law professor, Texas College of Law,
Houston