GALVESTON — A special prosecutor bypassed a grand jury and dismissed a felony cocaine charge against the daughter of Galveston County’s district clerk, an opportunity the district attorney’s office doesn’t offer others.
A camera mounted in a Galveston police car captured the Jan. 18 traffic stop and arrest of Jennifer Lynn Kinard, 28, daughter of District Clerk John Kinard.
Jennifer Kinard admits on video to putting a bag containing cocaine behind the driver’s seat of her car, yet Sam Finegan, a special prosecutor assigned to the case, said the evidence wasn’t a “slam dunk.”
Finegan, a defense attorney who handles special cases for the Galveston County District Attorney’s Office, dismissed Kinard’s first-time felony offense in the interest of justice without sending it to a grand jury, saying she successfully completed drug testing, counseling, classes and community service. The dismissal didn’t involve a plea deal.
“While we do that from time to time on misdemeanor cases, we really don’t do those types of arrangements in felony cases,” Galveston County Criminal District Attorney Jack Roady said.
Finegan also said he had no idea his daughter was Facebook friends with Jennifer Kinard.
By the book
Police Lt. Michael Gray said officers handled the case by the book, no differently than any other. As is customary with cases involving people connected to the district attorney’s office, Roady sent the case to a special prosecutor, so as to have no influence in the outcome and to avoid any appearance of impropriety.
John Kinard said he did nothing to influence the outcome and took extraordinary measures to avoid any perception of favoritism.
The Daily News, through the Texas Public Information Act, obtained the police report and dash-cam video of the arrest.
The video shows night-watch patrolman Adrian J. Healy traveling west in the 5100 block of Broadway when he pulls behind Jennifer Kinard at 2:25 a.m.
Healy claims in his report that Kinard’s car had a defective license plate light. The video shows Healy turning off his headlights, revealing Kinard’s dark license plate. Kinard turned north on 52nd Street and stopped. Healy shined his flashlight in the car, told Kinard to step out and her passenger to put his hands where he could see them.
Police: Marijuana in plain sight
“He’s got weed on his lap,” Healy said in the video, referring to the passenger in the front seat.
Healy radioed a police dispatcher, asking for backup, as Kinard stepped from the driver’s seat and put her hands on the top of her car.
“Keep your hands where I can see them,” Healy told her, as he walked to the other side of the car to speak with the passenger.
Kinard removed her left hand from the roof and it disappeared from view of the patrol car’s low-resolution dash-cam. Her clothing, apparently her shirt, moved, and then she leaned toward the car. Healy saw it and told Kinard to walk to his patrol vehicle and place her hands on his car.
“Are you kidding me?” Healy said on the video, as he walked to Kinard and handcuffed her hands behind her back.
“What did you just put in the car?” Healy said.
“I didn’t put anything in the car,” Kinard said.
“I just saw you reach toward the back seat,” Healy said. “If I find it, I’m going to charge you with felony tampering for trying to hide it.”
Kinard didn’t immediately answer Healy’s question.
“What did you just put in the car?” Healy asked.
“A bag,” Kinard said.
“A bag of what?” Healy asked, as he checked the passenger’s pockets and returned to search Kinard’s car.
“Oh, wow,” Healy said, interrupting Kinard several times as he informed her of her right to remain silent.
“Anything you say can and will be used against you in a court of law,” Healy said. “Anything you say can be used against you as evidence in a court of law.”
Healy then asked Kinard what substance was in that bag.
“It is cocaine,” Kinard said.
‘Please don’t, for my father’s sake’
Healy, despite Kinard’s pleas, gently led her out of view of the camera to place her in the patrol car.
“Please, please, please, please, please don’t, for my father’s sake,” Kinard said.
Healy wrote in his report that he found the bag that had pictures of “eight balls” on one side. An “eight ball” is slang for one-eighth of an ounce, a little more than 3.5 grams.
The bag Healy found contained 0.75 grams of white powder, which, when tested, gave a clear indication for the presence of cocaine, the report states.
Police contacted Assistant District Attorney James Haugh, who said the district attorney’s office would accept the felony charge of possession of a controlled substance and recommended a $5,000 bond, the report states.
Healy also arrested Kinard’s passenger, Nicholas Daniel Proffitt, 24, on a misdemeanor charge of possession of narcotics paraphernalia — a yellow, glass marijuana pipe. He told Healy in the video that he didn’t use cocaine. A municipal court clerk said Proffitt paid his fine on the Class C misdemeanor in a period of five months, and the case was disposed.
The district attorney’s office appointed Finegan as a special prosecutor. Finegan worked from 1992 to 1996 as a prosecutor with the district attorney’s office before moving to private practice.
Roady said he didn’t know Finegan’s daughter was a Facebook friend with Jennifer Kinard. Finegan was also unaware, he said.
“It does not sound good, but I promise I had no earthly idea,” Finegan said, noting he had never seen Jennifer Kinard before her first court appearance.
After conferring with his daughter, Finegan said she knew Jennifer Kinard because she was a casual friend with Kinard’s younger sister. Finegan’s daughter hadn’t seen Jennifer Kinard in two years, he said.
Finegan said he decided against sending the case to a grand jury because it involved a small amount of cocaine, among other reasons.
“I gave her some hoops to jump through,” Finegan said, noting she had two clean drug tests, four visits to a certified drug and alcohol counselor and attended a drug and alcohol class.
Greg Russell, Kinard’s attorney, said his client also served 14 hours of community service.
‘Not a slam dunk’
Finegan declined to discuss the specifics of the case but noted the facts played a part in his decision.
“There was another person in the car,” Finegan said.
“I can’t tell you if I would have won or lost,” Finegan said. “It was not a slam dunk, so to speak. It was not just a simple, ‘It’s in her pocket.’”
Finegan also said he decided to save the time and expense of taking it to a grand jury.
Russell agreed there was an affirmative link issue with the case.
“Our position was it wasn’t hers,” Russell said.
Russell filed motions seeking to have DNA and fingerprint testing of the bag.
“She was adamant that her fingerprints or DNA weren’t going to be on it,” Russell said. “I was happy with the outcome. She was happy with the outcome. We weren’t complaining.”
Finegan compared his dismissal to a pretrial diversion program available in Harris County. Roady is working to implement a similar program only for misdemeanors in Galveston County by the end of the year.
Result not offered to others
Generally, prosecutors don’t send every case to a grand jury if they determine evidence is insufficient to proceed to trial. A defendant could also enter a guilty plea, waiving a right to a grand jury review, Roady said.
“Here, however, the special prosecutor agreed to dispose of the case without presenting it to a grand jury,” Roady said. “The terms of that agreement were different than what my office would agree to in other similar cases; namely, we don’t make agreements for first-time felony drug cases to be dismissed in the manner that was done in this case.”
The district attorney’s office appoints special prosecutors so there is not even an appearance of favoritism and to keep the office and integrity of the criminal justice system above reproach, Roady said.
“Needless to say, I’m very disappointed by the way this case was handled,” Roady said. “At the end of the day, despite our best efforts to avoid any hint of favoritism by appointing a special prosecutor, the defendant got a result that, had our office handled the case, would not have been offered to other defendants.”
Weight of evidence
There is a presumption that prosecutors commonly obtain convictions for drugs found in a vehicle, even though it’s unclear who possessed them, said Sandra Guerra Thompson, professor of criminal law at the University of Houston Law Center.
“It would appear it wasn’t a matter of not having sufficient evidence,” Thompson said. “She’s the driver. She seemed to know they were there. That knowledge and that she was driving the vehicle, that’s usually going to be enough.”
Thompson, however, questioned why prosecutors aren’t treating more people that way.
“Why not give other people the opportunity to diversion and to avoid the terrible repercussions of having a felony on your record forever?” Thompson asked.
The frustration people have is based on the assumption that prosecutors should treat all people the same, regardless of who they are, Thompson said.
“We are all offended by the idea that the children of powerful people are going to get special privileges,” Thompson said. “On the other hand, it’s very hard to have rules that govern what prosecutors can and cannot do.”
The rules of ethics require prosecutors to take a laundry list of circumstances into consideration, such as the strength of the evidence, the influence on the defendant, what the victim might think or whether the case could be handled through the civil process, Thompson said.
“At the end of the day, I’m not sure if the right answer is to put more rules in place to tie a prosecutor’s hands,” Thompson said.
Kinards stand by their daughter
John Kinard, an elected official, heads the district clerks office, which serves as the custodian of public records, including criminal cases filed by prosecutors.
Kinard said he and his wife, Chris Kinard, were shocked to learn of their daughter’s arrest, as she had not been in any trouble or had any issues with law enforcement.
“We believe in and stand behind Jennifer,” Kinard said. “We have provided her with our personal support and love throughout this ordeal.”
Kinard also said he did absolutely nothing — directly or indirectly — to influence the outcome, and that he didn’t know the special prosecutor.
“I have exercised extraordinary precautions to ensure that even the perception of any favoritism didn’t exist,” Kinard said, noting the only conversation he had with Roady about the matter was the day Roady informed him of the arrest.
“I have never discussed this matter with presiding Judge (Michelle) Slaughter,” Kinard said.
Kinard also said he didn’t speak to the Galveston police officers or management.
“I purposely didn’t attend any of her hearings, so no one would infer the connection between me and Jennifer,” Kinard said. “My position as district clerk shouldn’t have any influence on Sam Finegan or anyone else, since all cases filed with the district clerk are randomly assigned to judges.”
Kinard also said his FBI background taught him well to avoid any perception of conflict of interest, since perception is reality.
“When the special prosecutor dismissed the charges, I presumed that he did so because proof beyond a reasonable doubt didn’t exist,” Kinard said. “A dismissal would be warranted in any case where the prosecutor doesn’t have proof beyond a reasonable doubt.”
Disparities are ‘commonplace’
Kinard said he’s witnessed a lot of prosecutions during his 33 years of law enforcement and that disparities in prosecution are an unfortunate aspect of the justice system.
“But, nevertheless, they are commonplace throughout the country among prosecutors, even within the same office and judges,” Kinard said.
Kinard expressed concern that Daily News readers would, no matter how much he professed noninvolvement, conclude he must have done something because of this article’s publication.
“I have spent three decades in law enforcement building a reputation for absolute integrity,” Kinard said. “I hate to lose this based on innuendo.”
Mike Guarino, who served as Galveston County’s district attorney for 20 years before retiring in 2003, said Finegan worked for him and was a fine attorney with high integrity.
“I wouldn’t second-guess him,” Guarino said. “Sam’s not the kind of guy who does anybody favors. He calls it like it is.”
As a result of Kinard’s case, Roady said he’s reviewing the process of how attorneys are selected as special prosecutors in future cases.