by Matthew T. Clarke
Ever since a ruling by the U. S. Supreme Court in Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940), grand juries have been required to represent a broad cross-section" of the community.
Apparently, in Harris County, Texas, it is sufficient for grand juries to represent a broad cross-section of law enforcement and other government employees. Furthermore, only one in eleven grand jurors were Hispanicand most of them were non-voting alternate jurorsin a county that is one-third Hispanic.
There are two methods of grand juror selection used in Texas. A state district judge can appoint three to five commissioners who select another fifteen to forty residents. A state statute requires that the residents represent a broad cross-section of the population of the county, considering the factors of race, sex and age." From the residents selected, the judge selects twelve grand jurors and two nonvoting alternates. The other method is to select qualified residents randomly from the regular jury pool and have them constitute the grand jury. The commissioner method is used in Harris County. Of the five largest Texas counties, only Harris (Houston), Travis (Austin) and Tarrant (Fort Worth) still use the commissioner system.
In 2002 and 2003, Harris County had 129 grand jury commissioners. Of those, sixty-five had connections to local government or the Harris County legal system. This included twenty-four employees of the Harris County courts; fourteen attorneys (two of whom are former prosecutors and one a current appeals court judge); eleven jailers, parole, or probation officers; six current or retired police officers and the spouse of a high-level police officer; two private investigators; two bail bondsmen and one bail bondsman's spouse; and four Houston City or Harris County governmental agency employees.
An obvious problem with the commissioner system is that the district judge is likely to select his friends, colleagues or employees as commissioners. Just as judges are most likely to know people who work for the government, those government employees selected as commissioners are most likely to select people they knowfriends, colleagues and employees. For instance, one judge selected grand jury commissioners exclusively from his court's employees. Thus, the grand jury selection method becomes skewed toward government employees.
Another problem with the commissioner method is that many of the district judges were themselves prosecutors before they were elected to the bench.
It's not that (the commissioner) are intentionally conspiring or doing something bad," according to Larry Karson, a criminal justice instructor at the University of Houston's Downtown Campus whose review of 32 Harris County grand juries brought the problem to light. But it's not a fair representation of the community to have half of your grand jury commissioners come out of the court system.
Harris County sends more criminal defendants to Death Row than any other political entity in the nation. It is proud of its tough-on-crime reputation. However, as Karson notes, this makes it even more important to avoid the appearance of impropriety in the grand jury selection system.
Murry B. Cohen, a former appeals court judge, agrees.
When you're indicting someone for the ultimate crime for which we give the ultimate penalty, it's important that the system not just be fair but, in addition, look fair." said Cohen. The system should strive to avoid creating legitimate questions about its own legitimacy.
Another area of concern involves police officers who shoot citizens. Of the 193 local police shootings since 1999, only two officers were indicted by Harris County grand juries. Why is this so? A Houston Chronicle investigation showed that one grand jury that was investigating the scandal at the Houston Police Department Crime Lab had a Houston police officer as a member. That grand jury failed to indict any of the people involved in the scandal over fabricated evidence and biased testimony. Instead, it merely issued a statement critical of the crime lab and the District Attorney's Office. Another grand jury investigating the fatal shooting of a Houston police officer had a retired Houston police officer as a juror. The investigation also showed that retireeswho are quicker than younger people to take the word of police officers, prosecutors and others in authorityare frequently and repeatedly used as grand jurors.
Former district judge and currently member of Congress Ted Poe described another abuse of the grand jury system in Harris Countygrand jury shopping," the ability of the prosecutors to present an indictment one grand jury failed to true bill to other grand juries as many times as the prosecutors desire.
I think the District Attorney's Office selects the grand juries that they want to present cases toespecially the hard cases," said Poe. The District attorney's Office should present cases to those grand juries in a lottery system. That's the fairest way for the defendant, the victim and the state.
District judges also tend to reappoint the same group of people as grand jury commissioners year after year. 262nd Judicial District Court Judge Mike Anderson defends this practice by claiming that few people are willing to invest the time and energy required of grand jury members.
There's not a huge contingent of people who want to do this," said Anderson.
However, Cliff Stricklin, a state district judge in Dallas, has another take on the subject. He used the commissioner system when first elected, but has since changed to the jury pool system.
I think it opens the doors to people who wouldn't normally even know about how to serve on a grand jury," Stricklin said.
That, of course, is the quintessential meaning of cross-section of the population," the inclusion of people who, under the commissioner system, would never be given an opportunity to serve on a grand jury.
Houston State Senator John Whitmire is planning to add concerns about grand jury selection to the hearings scheduled to be held on the Houston Police Department and Texas Department of Public Safety crime lab scandals.
I want to throw this into our hearings and just pull some district attorneys and judges in there and ask them to explain it to us," said Whitmire. There needs to be some transparency in the system."
Source: Houston Chronicle.
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