Ever heard the following sayings, “Even a paper clip can be indicted”? How about “A DA can indict a ham sandwich”?These are popular sayings when it comes to District Attorneys and the grand juries to which they have unfettered access. Those chief prosecutors, may however, be among the few who subscribe to the validity of such statements.
Rarely in history of American jurisprudence has so much critical attention been paid to the grand jury system. Not to be confused with the more familiar, petit jury. You know, the one so many Americans try their best to avoid serving on.
Just what is the the Grand Jury; and where did it come from? Or perhaps more fittingly, where is it headed?
District Attorneys from six Texas counties, Brazos, Fort Bend, Galveston, Harris, Jefferson, and Waller, were surveyed for this article; only one, Cory Crenshaw of Jefferson County declined to respond to our questions. Crenshaw stated by email, “…while we appreciate your reaching out to this office, we respectfully decline to participate in the interview process…”
Fortunately, the other five agreed to be interviewed, and their thoughts will be shared with the reader. But first, a little about the history of the grand jury.
Attorney John Brewer shared the following information about grand juries, with members of the Texas District and County Attorneys Association.
“A grand jury (in Texas) is a group of twelve people who meet qualification as set out in the Texas code of Criminal Procedures. They must be citizens of the county in which the grand jury sits, able to read and write, not under indictment, etc…” But Brewer adds, (the code) suggests the court consider additional factors when starting the selection process; that those chosen should ‘represent a broad cross-section of the population of the county, considering the factors of race, sex, and age.’
With regular (petit) juries, prosecutors and defense attorneys are allowed to eliminate individuals from a larger pool of potential jurors. a practice which has traditionally led to the exclusion of “certain” individuals mostly minorities. That practice combined with “jury dodgers” has traditionally resulted in a disproportionately low number of minorities serving on juries.
But with Grand juries, no such opportunity to strike, with or without cause, exist for the prosecutor or a defense attorney. In fact, it appears that specific legislation is designed to guard against such “discriminating” practice. Says Brewer, “It is a rare occasion that the law mandates that we take into account things like race, gender, and age when selecting a group of citizens to serve in the criminal justice system. Obviously the idea is to have a grand jury made up of people from a variety of backgrounds representing the entire county in which it sits.”
Who knew that such an Affirmative Action policy could go so unchallenged in the state of Texas, be so universally accepted, and yet now so widely distrusted.
Few, if any District Attorneys see any need to change the grand jury process. For sure no DA anywhere would ever admit to their misconduct before such a jury. But what what about the ‘affirmative’ legislative mandate for selecting grand jurors by race, gender, and age, to reflect the communities in which they sit? And what is to be made of the centuries old grand jury system, which is cloaked in almost total secrecy?
FORT BEND COUNTY
John Healy who serves as Fort Bend County’s District Attorney, is not so sure that changing the grand jury system to be more transparent would be beneficial. “The movement seems to be in this country that everyone needs to know everything and I don’t think that needs to be the case.” He further cautions, “I don’t like it (the idea of reforms). It may have a chilling effect on the candor of witnesses.” Healy believes that the majority of Texans are satisfied with the system and think it good. He adds, “I certainly don’t think a District Attorney could indict anyone, or anything, they wanted to.” Healy went on to say, “the three to four percent who don’t get indicted are quite happy that were weren’t.”
Healy, not surprisingly is not alone in his support for maintaining, without changes, the current grand jury system.
The Brazos, Waller, Galveston and Harris County District Attorneys were implicit in their support for the system as it exist; all maintaining that their offices follow the law and provide both incriminating and exculpatory evidence to the grand jurors.
Brazos County prosecutor Jarvis Parsons says he believes defendants are given the opportunity to present evidence before the grand jury. “The attorney’s representing defendants in our courts have a good relationship with our attorneys. They are pretty much aware of the cases being presented (to the grand jury). They know to contact our office.”
While Parsons may believe his office’s relationship with local practicing defense attorneys is kosher, the reality of DA and defense attorney relationships may be more akin to a marriage going, or gone bad. You know, the relationship where one partner thinks all is good, while the other partner maintains public respect, but with an ever increasing distrust. Such was the case at a recent town hall meeting in Missouri City, Texas, which in part focused on grand juries, which was hosted by Texas State Representative Ron Reynolds.
In an ironic seating arrangement, three defense attorneys sat together on a panel; while between the attorneys and the lone District Attorney on the panel, sat three law enforcement officials.
Criminal defense attorney, Vivian King, was clear about her feelings on the process. “When you add distrust with (grand jury) secrecy, you get a bad result. It’s up to the integrity of the prosecutor,” says King.
Seated next to King was defense attorney, Teana Watson, who spoke of the juror selection process. “When the judges, who select the commissioners, who select the jurors, all belong to the same country club, you’re going to get jurors just like them.” Watson added, “I think because of the current climate, because of the distrust, we need to change the grand jury system. We need grand jury reform in Texas and in America.”
One major problem with the secrecy of the grand jury process is determining just who is, and who isn’t, benefitting by the privacy which shrouds the legal hearing, particularly as it relates to race.
Elton Mathis, who is the current Waller County prosecutor says his office does not maintain statistics on indictments and No-bills of defendants by race. However, the chief prosecutor advised that, “since each indictment lists the DOB, sex, and race of a defendant, someone could review those (data) and compile the statistics.” Of course that compilation would not answer the more elusive question of who, by race, among others demographic variables, was No-billed. It should be also noted that none of the other five offices responding to our survey, maintain such data.
Jack Roady, who serves as the Galveston County Prosecutor says, “we don’t maintain (those) statistics and have no plans to do so. The race of the defendant, or potential defendant, plays no factor in the way a case is presented to the grand jury.”
Harris County District Attorney Devon Anderson speaking through staff attorney Julian Ramirez, also conveyed that her office, “does not keep such statistics (by race) and has no intention, at the present time, of compiling such information.” Ramirez also said that it is the policy of their office to not mention the race of a defendant in their grand jury presentation. However, he did not say whether evidence presented to those jurors would in fact, make that distinction.
None of the District Attorneys offered an opinion on the controversial “No-bills” in Ferguson and NewYork, a surprising silence in the midst of defense attorney’s cries for more changes in the grand jury system. With so much attention now focused on grand juries, and the convening of new legislatures in Texas and around the country, DA’s, like it or not, and criminal defense attorneys may be forced into a sort of “judicial marriage counseling” in what is more commonly called, legislative reform.
Should this “counseling” be so ordered by the Texas legislature, perhaps the gentlemen District Attorney from Jefferson county, a county heavily populated by African-Americans, will be so kind as to participate. It just might be a good thing for future Jefferson County community relations.