Proposed bill would alter grand jury selection

Jessica Priest By Jessica Priest

Dec. 28, 2014 at 11:15 p.m.
Updated Dec. 29, 2014 at 6:16 a.m.

Two lawmakers have filed bills that would eliminate one of the methods Texas judges use to form grand juries.

A grand jury is composed of 12 people who meet to weigh the merits of various criminal cases during a six-month period. A grand jury hands down indictments, which are findings that enough evidence exists to warrant a trial.

Senate Bill 135 and House Bill 282, authored by Sen. John Whitmire and State Rep. Harold V. Dutton Jr., both Democrats from Houston, eliminate what's referred to as the "key man" or "pick-a-pal" system.

If passed as the bills are written, district judges would no longer be allowed to select between three and five people - referred to as grand jury commissioners - to find 30 prospective grand jurors and then select 12 who qualify.

The other method of impaneling a grand jury is to randomly summon between 20 and 125 people and select 12 who qualify.

"I filed it because it has been well-documented that we have serious issues with our grand jury system. As its currently practiced, it lacks transparency, accountability and diversity," Whitmire said.

He said with the "key-man" system, a judge's political supporters or individuals they are comfortable with are chosen to serve again and again.

In Harris County, a police officer sat on six grand juries. He served as a foreman on one grand jury charged with investigating another police officer, Whitmire said.

The Houston Chronicle has been reporting on the case of Alfred Dewayne Brown, who was convicted of the 2003 murder of veteran Houston police officer Charles R. Clark.

The newspaper was able to read a 146-page transcript of the grand jury testimony because appellate attorneys entered it into public record.

The attorneys were outraged by a police officer who had served as foreman of the grand jury. That officer has been accused of berating one witness into changing her story about the defendant's whereabouts.

Whitmire is hoping for broad support. He knows that grand jury proceedings must be kept secret because of possible reprisal from the accused. But he thinks there can be a way to track a grand jury's makeup by looking at the grand jurors' ZIP codes.

"My bill is a start," Whitmire said. "To have confidence in the criminal justice system, you have to have an appearance and a reality that it is fair."

Dutton did not return calls for comment.

In Victoria, Jack Marr, judge of the 24th Judicial District, uses the "key-man" system while Robert C. Cheshire, judge of the 377th Judicial District until Dec. 31, prefers to randomly summon prospective grand jurors.

Criminal District Attorney Stephen Tyler said he likes working with both types of grand juries. There are advantages and drawbacks to both.

"Key-man" grand juries are normally composed of retired businessmen and women with good attendance, he said.

"If it is a case about white-collar crime, they're a better grand jury to show balance sheets to," Tyler said.

Randomly selected grand juries, meanwhile, are sometimes more indicative of how an average juror at trial might react to a case. They sometimes cannot afford to miss work, though, he said.

Tyler thinks both are representative of the county's demographics. People who have been convicted of misdemeanors have served on grand juries here because they are eligible to, he said.

In Victoria, the two grand juries meet once a month, sometimes from 9 a.m. to 3 p.m. They can pass on a case, which means they'd like more information, no bill a case, which means they don't think the law was broken, or true bill it.

Nine of the 12 grand jurors must agree the law has been broken to true bill a case.

Tyler is worried that because of what's happened across the nation, Texas will eliminate grand juries altogether. Besides being an important protector of one's Fourth, Fifth, Sixth and 14th Amendment rights, grand juries have long been his sounding board.

"Because someone perceives a problem - and I don't know that there is - in New York, don't strip away people's rights in Texas. The grand jury is a good investigatory tool. There's many times a grand jury has helped me restrain myself from stupidly exercising the power and authority of the state of Texas. It's a great vehicle for input," Tyler said.

Allen Place, who has lobbied for the Texas Criminal Defense Lawyers Association since 1999, is hesitant to officially support SB 135 and HB 282 because he's not finished studying all the bills that have been filed.

But he thinks SB 135 and HB 282 are a step forward and would not be a complete overhaul of the grand jury system if they were passed as they were written.

"This seems rather harmless compared to some of the things I've seen and heard. ... You're generally going to have a jury of your peers, and if you don't have as broad a cross section as possible, it is arguable that you don't have a jury of your peers," Place said. "The Legislature is often a mirror of society. It's good every now and then to just talk about things and see if there's some way to improve it."



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