On September 1st, a new law took effect in Texas is intended to fundamentally change the landscape of the grand jury selection process. Gov. Greg Abbott signed legislation designed to “reform” this selection process by eliminating the “pick-pal” method of selecting people who serve on grand juries. This method, historically known as the “key-man” method, has deep roots in American jurisprudence. It has been reported that the reputed origin of the key-man grand jury selection method emanated from England under King Henry II.
The key-man method is supposed to work this way in Texas: a judge appoints commissioners who nominate jurors from a pre-selected pool of individuals rather than randomly selecting them from a representative body of the community.
The end result is that grand jurors generally come from the relatively affluent or prominent segments of society; more often than not, friends of the judge or others who work in the legal and political systems in a given county. This selection process was from its inception, and has remained so throughout its existence, a recipe for abuse of power and political corruption. In fact, more than six decades ago the U.S. Supreme Court said this kind of grand jury selection process “is susceptible to abuse and can be employed in a discriminatory manner.”
We agree. It is a system of political cronyism that has been rife with conflicts of interests whose primary purpose is to protect the insiders of the political power structure while simultaneously abusing the powerless, voiceless segments of our society. For example, in Harris County alone, grand jurors (many of whom had close ties to the law enforcement community) have not indicted a police officer since 2004, and Dallas grand jurors went 40 years without indicting a police officer for shooting a civilian before they did so in 2014. The Houston Chronicle reported last year that Houston police fired their weapons 100 times at civilians over the preceding five years, killing dozens and injuring scores of others. “From 2008 to 2012, officers shot 121 people, 52 of them fatally.” None of the officers were indicted.
So what is the purpose of a grand jury? The website of the Harris County courts informs the public that:
“A grand jury consists of twelve people whose job is to review criminal complaints and decide if there is sufficient evidence to issue an indictment. The standard of proof for an indictment is probable cause.”
This generic description belies the corrupt nature of the “pick-a-pal” selection process. In June 2014, Houston Chronicle columnist Lisa Falkenberg provided the public with a “disturbing glimpse” into this selection process. Her piece disclosed just how abusive, and threatening, Harris County grand jurors can be toward witnesses appearing before them. She said grand jurors “ … don’t just inquire. They interrogate. They intimidate. They appear to abandon their duty to serve as a check on overzealous government prosecution and instead the team.”
Influenced by Falkenberg’s troubling look into the secretive world of the state’s “pick-a-pal” grand jury system, the Texas Monthly followed up her column with a piece that charged the system was broken. These two media sources were the driving force behind Democratic state Rep. Carol Alvarado of Houston introducing a bill this pass legislative session, and approved on the second-to-last day of the session by a vote of 86-57, which, according to the Texas Tribune, “institutes a more random process [of] drawing jurors from broader pools of potential candidates.”
The grand jury process has always been a highly secretive world whose proceedings are hidden from the general public and particularly from criminal defense attorneys. The only procedural mechanism available to Texas criminal defense attorneys to access sealed grand jury proceedings is through a motion to produce and examine grand jury minutes. The motion must be supported by a strong showing of what the appellate courts call “a particularized need”—in other words, the defendant’s need for access to information is greater than the grand jury’s need for secrecy, an almost impossible burden to meet.
Former Texas Gov. Rick Perry’s defense team learned this lesson this past February when an Austin district court judge denied their request for access to grand jury evidence and witnesses. We find it both interesting and illustrative that former powerful political figures like Perry and U.S. Rep. Tom Delay were supporters of the “pick-a-pal” grand jury system until they became targets and ultimately made criminal defendants by that system. They now consider the system unfair, unjust, and politically abusive—something criminal defense attorneys have known for years.
The newer, improved “random selection” process still leaves open the door to prosecutorial excess but at least some of the political cronyism may be removed. We hope so. Texas became the 49th state to abandon the key-man selection method. Only California remains committed to this inherently corrupt process.
Regardless of what evolves out of our new process, we cannot, and will not, support a secretive system that is closed to the public and criminal defense attorneys. The new legislation notwithstanding, the prosecution still owns the grand jury process, and as the old saying has it, any given prosecutor can “indict a ham sandwich.”