Wednesday, April 10, 2013

Bills in Senate, House take opposite tacks on grand jury transparency

Cynics have long maintained that prosecutors could get the typical grand jury to indict a ham sandwich, implying they're essentially in the pocket of the District Attorney and unlikely to supply a legitimate barrier to wrongful indictments. But if SB 834 by state Sen. Craig Estes passes, it will eliminate the last vestige of public accountability and leave grand juries in Texas wholly anonymous, secret tribunals by permanently making juror names a closed record, even after the grand jury's work is complete. The Senate Criminal Justice Committee approved the measure yesterday.

Grand juries are almost completely secret right now. Unless someone shows up at the swearing-in ceremony, the public can't know who is on a grand jury until after its work is concluded, and then under current law all that's released are their names. Estes' bill would make even that information closed for reasons that completely elude me. IMO that will only further contribute to the perception that grand jurors are in the pockets of prosecutors and erode public trust in the process even further.

Making grand juror names secret means if there are improper relationships between grand jurors and judges or prosecutors they can never become known. If the same grand jurors are appointed repeatedly by the same judge - which happens - and other worthy applicants are excluded, such discrepancies could never become known. Or, if a grand juror has personal, familial or professional relationships with a defendant and the prosecutor doesn't catch it in the vetting process, the media and outside watchdogs could not have any means to make such a connection later if names never become public.

Last year, when a "rogue" grand jury took it upon itself to investigate (and ultimately no-bill) alleged improprieties at the Harris County DA's office, observers were able to draw important connections between the grand jury foreman and the political opponent of the incumbent. That cast light on potential motives of those driving that highly politicized process and an important public interest was served by the information becoming public.

If the grand jury system - which already provides little if any restraint and generally serves as a rubber stamp for whatever decisions prosecutors have already made - becomes a complete secret run by anonymous members whose names will never be released, IMO they should probably just scrap it as farce and a waste of time. Right now, perhaps it's true prosecutors can get grand jurors to indict a ham sandwich. But if we can't know who approved (read: rubber stamped) prosecution decisions and 97% of cases end in plea bargains, it become increasingly difficult to tell if there's any meat in the sandwich at all.

At trial, jurors serve in public and after the fact may be interviewed and openly discuss the cases they consider - why shouldn't grand jury members be allowed to do the same? Not only is permanent secrecy about identity unnecessary after grand jury service is over, so is the gag order under current law that forbids grand jurors from discussing their deliberations. After all, with so many convictions resulting from plea bargains instead of jury trials, in most instances grand jurors are the only citizens who will have ever considered evidence against the defendant outside the prosecutor's office. Secrecy turns grand juries supposed oversight into a black box: Making names of grand jurors permanently closed records would eliminate the last, tiny window into the box and finally moot the institution in the public eye as a legitimizing force for prosecution decisions.

Relatedly, though headed in the opposite direction, yesterday the House Criminal Jurisprudence Committee heard HB 3334 by Rep. Bryan Hughes which would increase accountability of grand juries by requiring that their interviews with all witnesses be recorded, not just defendants. IMO that's a great idea and Grits would go one step further: Those recordings and/or transcripts should become public records at some point after the grand jury's term is complete, or at a minimum on a case by case basis before any plea bargain or trial. I've often thought the grand jury's vetting role would be performed more diligently if prosecutors and jurors knew that everything said and done in the grand jury room could be scrutinized later.

MORE: In the comments, a reader points to important public-interest stories from the Denton Record Chronicle (pdf) and the Houston Chronicle that would not have been possible if Sen. Estes' secrecy bill were the law of the land.

AND MORE: (4/12): From Big Jolly.


Anonymous said...

It still amuses me that you're such an advocate of public transparency in most instances and yet after your run in with the Austin police last year you were not wanting the video released. Isn't there a word for that type of inconsistency in one's positions?

Gritsforbreakfast said...

Glad you're amused, 8:33, but long before that episode my views on transparency in the justice system were more nuanced than you portray. Please, though, let's try to stay on topic. Any arguments pro or anti- grand jury transparency? If not, you're just trolling.

Anonymous said...

I watched yesterday's hearing via live-stream.

It was particularly obnoxious to see advocates of SB18 exploit the horrific murders of Kaufman Co. DA Mike McLelland and his wife Cynthia in trying to justify the need for the bill.

The McClellands were murdered on March 30. SB18 was filed over a month earlier, on February 26.

I suppose Sen. Estes might substitute the earlier (January 31) killing of ADA Hasse to make his point--but that's not what he said.

It would be useful to learn more about how this matter first came to Sen. Estes' attention. Did he think of this all on his own, or did someone approach him with the issue? Who? When? Any contemporaneous documentation of this process?

Notably, a representative of Harris County District Attorney Mike Anderson was in attendance and registered his support for the bill, but didn't offer an explanation as to why.

Perhaps some intrepid reporter will be able to get DA Anderson on the record as to why he thinks grand jurors' identities should always and forevermore be kept hidden from public scrutiny.

Anonymous said...

Texas Justice:

Prosecutors are permitted to withhold evidence, coerce witnesses, manufacture or tamper with evidence, knowingly put on perjured testimony, and a host of unethical and often criminal activities with no accountability.

Judges are permitted to act with open and obvious bias, to make up rules of evidence to insure a victory for the prosecution, to ignore the law when it helps the prosecution, to use the Constitution as toilet paper, etc. with absolutely no accountability. The commission that is supposed to hold them accountable is permitted to operate in secrecy so that we can't know if a judge's buddy is influencing the process.

Now some idiot legislator wants to make grand juries even more secret than they already are.

Concepts like open government, fairness, and justice have no applicability to those in charge of the Texas criminal justice system.


Anonymous said...

It is not an infrequent occurence that grand jurors or prospective grand jurors express reservations about serving out of concern for their safety. In addition, some people just don't want to serve because they are afraid they'll be bothered because of their service. Protecting their identity alleviates this concern, to a degree. It also reduces the likelihood that someone might attempt to improperly influence a grand juror during their term. I don't think it's unfair at all for the Kaufman County prosecutor murders to be considered in this discussion. That tragedy has been a real eye opener to the risks associated with being involved with the investigation and prosecution of criminals in any capacity. I think for some time now, there has been a naivety and incorrect assumption that police officers on the street were the only law enforcement officials at risk for retaliation. I can assure you, that veil has been pulled back now.

Incidentally, that whole business about a prosecutor being able to convince a grand jury to "indict a ham sandwich" is one of the biggest myths in the criminal justice system. Grand juries indict most cases presented because in the vast majority of cases presented to them, the defendant is clearly guilty. The cases where the defendants are clearly not guilty are usually declined by the prosecutor. On the cases which are more of a "close call," in my experience grand juries can be very independent--and they serve a very important function in filtering out marginal cases. And if you don't think grand juries will "nullify" or override the recommendation of a prosecutor, then you're living in some alternative universe. One additional comment--any prosecutor who's trying to get ham sandwiches indicted obviously doesn't have enough work to do. I don't know many prosecutors in Texas this would apply to.

Alright, all of you criminals out there who think Texas grand juries are nothing more than a Star Chamber, have at it. I've tossed y'all some red meat!

Anonymous said...


Really? By your justification, ALL juries should be secret as should DAs, arresting officers, jailers, etc.

Sorry but that is EXACTLY the way social control works in dictatorships, etc.

Grand jury and innocence? The prosecutor determines what the grand jury sees. Remember the Duke Lacrosse case?

As for the rest of your comment, you are aware it was a judge who is quoted regarding the ham sandwich? After he was indicted, by the way.

And it not that they ARE a star chamber but that they can easily be one under the likes of Nifong. :~)

Anonymous said...

Question, please. Does this bill limit the identification of Grand Jurors only while sitting or forever? Thanks.

Gritsforbreakfast said...

10:24 writes, "if you don't think grand juries will 'nullify' or override the recommendation of a prosecutor, then you're living in some alternative universe"

Or you're just living in a universe where everything that happens in the grand jury room is secret and so no one is in a position to verify such claims. If what you say is true then the system would benefit from enhanced credibility if that were made public. The meme about grand juries indicting a ham sandwich is a widespread belief, not just my view: The only way to dispel it, if it's really a "myth," as you claim, is greater transparency.

Gritsforbreakfast said...

10;49, unless I'm misreading it, the answer is "forever." They're already secret while they're seated unless someone happened to be in the room when they're first sworn in.

Anonymous said...

Consider this extraordinary example of investigative journalism performed by reporters with the Denton Record-Chronicle in 2011.

Should Senator Estes' bill pass, this type of independent scrutiny (and public exposure) of conflicts of interest among grand jurors would be impossible.

If I were Harris County District Attorney Mike Anderson, I'd desperately want to prevent that as well.

Anonymous said...

@10:47, The distinction between grand jurors and prosecutors, jailers, etc., is that grand jurors are SUMMONED to grand jury duty. They are private citizens who, unless they have an excuse, are compelled to participate. I'm sorry, but if I were compelled to become a participant in the criminal justice process not of my own choosing, I might just have major reservations about having my name or personal information known to the criminals I was indicting--especially if I lived in a county along the Mexican border.

Anonymous said...

"It also reduces the likelihood that someone might attempt to improperly influence a grand juror during their term."

Unless that someone is the prosecutor. How about this - as a trade off for the secrecy, we take grand juries out of the hands of both the judges and prosecutors. Have an independent official not affiliated with the DAs office in any way in charge of both selecting the grand jury and presenting the case to them. His job would be to present the case in an ubiased manner, presenting all relevant evidence. Wouldn't that be more fair than the current method where the DA only presents whats needed to get the indictment?

As far as the "ham sandwich" thing, I had never heard the second part of that until a couple of years aqo - A prosecutor could indict a ham sandwich "for the murder of the pig."

Why is it that power seeking government types always feel the need to resort to fear mongering to get more power. This has been done by the war on terror and is a routine practice for prosecutors. Seriously, has anyone ever declined to serve on a grand jury because they are afraid for their safety? I think such a thing would be extremely rare. How many grand jurors have been killed for their service? Come on people...unfortunately (and the power hungry fear mongering prosecutors know this) most of the gullible public will fall for it.

What that quote about safety and liberty?

Anonymous said...

Let's use the prosecutor logic here:

I've never heard of a grand juror being killed for their service. The likelihood of a person being killed for serving on a grand jury is less than the odds of winning the lottery. Therefore, this secrecy thing, which is being pushed with those with a political agenda, is ridiculous.

Anonymous said...

Many people are too shortsighted to see what is happening in Texas. It is similar to what has happened in the nation since 911. The state is helping to escalate a war against certain groups (admittedly mostly very bad people). Police are being equipped and trained for war. As this conflict escalates, the government will use fear (as is being done by prosecutors here) to justify more restraints on liberty, more government secrecy, and more government power. This will happen gradually, but eventually, Texas will just be another totalitarian regime.

Anonymous said...

@ 12:33

I agree with your moral reasoning, but the problem is that in Texas--especially in its largest counties--grand jurors are almost always not compelled to serve, but instead volunteer or are recruited via something called a "key man" system.

Before a grand jury is scheduled to serve, a judge selects 4 or 5 so-called "key men" (although they can be women as well). These are often people the judge knows personally, through church, community groups, or political ties.

Some judges make a sincere effort to be diverse in their selection of key men and reach outside law enforcement and their own personal comfort zone, into communities they are not a part of or don't normally socialize with.

Others.... er, not so much.

These 4-5 key men then each individually go about recruiting a group of other possible grand jurors. Again, the extent to which any of them chooses to diversify their select list varies widely.

The potential for bias--intentional or systemic--is obvious.

Read the Denton Record-Chronicle report.

Read this Houston Chronicle analysis from 2004.

So long as Texas allows judges to exert a powerful influence over the composition of their grand juries, and individuals are allowed to serve multiple terms--often as part of clique they've served with in the past, and have ties to outside the grand jury room--the media and ultimately the public needs to be able to independently scrutinize these relationships.

Unless, of course, you are willing to allow me to serve every other year as a grand juror--preferably as a "key man" or even the foreman--for the same judge with whom I have a close personal and political relationship, and trust me not to abuse that authority or the ability to shape other membership of others on the panel.

In that case, I'm all in favor of keeping my identity and service a secret.

Anonymous said...

Why don't we just do away with all the pretense. We don't need no stinking juries, or trial, or due process, or Constitutional rights. All that stuff is just a waste of taxpayer's money and resources. Every one of our law enforcement officers and prosecutors are always 100% honest and they get it right 100% of the time so we should trust them to make all these decisions without any interference from anyone.

From now on, if the police arrest you, the prosecutor will determine your sentence and that is that. If you don't like it, you can just go to jail too. The only people that should have a problem with that are criminals and liberal wackos.

(Note to prosecutors who might read this: This is sarcasm)

Anonymous said...

@12:33 Your Statement "I might just have major reservations about having my name or personal information known to the criminals I was indicting"

But they are not criminals at the time you indict them.. You, as a grand jury, are not convicting them, you are solely tasked with the job of looking at the evidence against the ACCUSED and making your best guess as to if this is enough to go forward to trial. That is all. At the Grand Jury level, there is no 'criminal' only the accused.

Anonymous said...

Hopefully the very helpfull Anon at 1:05 PM will return and verify.

In Texas, we have an Indictment & an Information documents. Whats the difference of the two and how are they used to obtain felony charges? Why or what Rule prevents the Defense from being present during GJ procedings?

Anonymous said...

Regarding the issue at hand, if it passes, we should look forward to a bill seeking mandatory black tape for all name plates & nameless LEO badges. Can you imagine the momentum leading to color coded hoods with two holes being mandatory court appearal.

Then of course a following bill will seek to blackout all names of arresting officers, adas, judges, trial jurors, court reporters, crime victims and defense attorney leaving only the defendant's name. Should this come to pass, Austin, Tx will be forever known as Russia, Tx. Goood day commrads?

Anonymous said...

@9:48...If they're not criminals at the time of the indictment, does that mean they're not dangerous? What are they at the time they commit the crime? They haven't been convicted of anything then either. Do you think the poor victim should just presume that nothing ever happened?

Anonymous said...

Anon 03:00,

Do you think it'll be a grand juror someone goes after or a petit juror? If both or just the latter, does that mean the petit jurors identity will now be a secret to the defendant? That's where your logic leads.

Anonymous said...

I find it mildly amusing, and somewhat disturbing that prosecutors cannot have a discussion about something without resorting to name-calling and demonizing those they disagree with. When a person has to resort to this sort of behavior, it means they cannot adequately defend their position. We see it all the time in politics. Its just like those that say if you disagree with the Prez you're a racist. But, anyone with any commmon sense knows its possible to disagree with the Prez on legitimate grounds without being a racist. Likewise, anytime a person makes a stand for the Constititution, for transparency in government, or for reforming a badly broken criminal justice system, prosecutors start throwing out the pro-criminal labels. I'm sorry but it is just weak and the prosecutors that do that should be ashamed if that is the best argument they can muster. One would hope they can do better in court. Although, maybe that's why they want to keep the system so slanted in their favor - because they lack the ability to make good sound arguments in court - I don't know. From what we've seen here, these prosecutors need biased judges and juries if there comments here are any reflection on their abilities. The lack of insight that these people have is really astounding. But, I guess it is common today because we see it all the time in politics. They just can't seem to understand that someone can have a legitimate disagreement with them over an issue unless that person has some evil motive. When a person must resort this type of demonization, they simply have no credibility.

One final note - it never ceases to disturb me how much prosecutors appear to hate the Constitution, open government, and, sometimes, even justice.

Anonymous said...

I just saw an article that said a new study found that daydreaming while driving is more dangerous than texting while driving. So, I assume, because prosecutors are so concerned about saving lives, they will now seek to make it a criminal offense to daydream while driving.

Actually, if we really care about all these victims of careless driving, we should ban driving altogether. Anyone who doesn't agree is obviously a pro-careless driving, pro-negligenct homicide liberal wacko who doesn't care about all those poor innocent victims.

(Again, to all the prosecutors out there: This is sarcasm).

Anonymous said...

Let's see, this post by Grits started out as a discussion about a bill filed by the a member of the legislature to protect the identity of grand jurors, and somehow it's evolved into some kind of obsessive anti-prosecutor rant. It's almost becoming comical on this blog how prosecutors are being blamed for every misfortune that falls upon the criminal element--as if the prosecutor was responsible for the irresponsible choices that criminals in our society make that cause them to be hauled into court to begin with. Newsflash: prosecutors are only one component of an adversarial criminal justice system along with the cops, judges, grand jurors, petit jurors, defense attorneys, appellate judges, etc.. Prosecutors don't typically investigate the crimes, nor or they typically involved in the decision to file charges or make an arrest. Whatever power and discretion prosecutors have is provided to them in the law which comes from "we the people." If you don't like it, change the law. In this instance, an elected legislator is trying to pass a law to protect grand jurors' identities. If his constituents don't like it, they can elect another legislator. If you don't like the fact that some prosecutors might support this bill, call your senator or representative and lobby against it. It continually amazes me how criminals want to blame someone else for the consequences of every stupid decision they make. Another news flash: prosecutors have absolutely no interest in convicting innocent people. There is no honor in that and it serves no useful purpose in the protection of the communities they serve. With that said, except in the case of major crimes and cases that go to trial, most prosecutors I know don't have a lot of time to spend on the cases they prosecute. They base their decisions on the evidence presented to them by the investigating law enforcement agency and they make a plea recommendation based upon that evidence and the law. You, as a criminal defendant, have two choices: either go to trial or enter a plea. NO PROSECUTOR CAN MAKE A DEFENDANT PLEAD GUILTY! A prosecutor can, using his discretion and the law, make the risks of going to trial potentially high. But at the end of the day, the choice is that of the defendant with the advice of his lawyer. And the fact that the potential risk of going to trial is not really the fault of the prosecutor either. That risk is based on two things: the evidence and the law. And the prosecutor didn't write the law. Another newsflash: for the prosecutor, it's not personal. The prosecutor doesn't hate you. He's not trying to ruin your life. To him, you're just another case. There were many before you and there will be many more after you. The fact that you were not happy with the job that your lawyer did for you is not the prosecutor's fault either. Whatever your lawyer told you how the prosecutor was being a jerk was probably not true. The prosecutor was just doing his job. Most prosecutors I know do not obsess over not guilty verdicts. There's no time to. It's not the end of the world. There's no reason to cheat. They have to pick up the next file and continue to do their jobs.

On the other hand, if it makes you criminals to feel better about yourself and it helps your self-esteem to blame prosecutors for your own mistakes, I suppose that's natural. But at the end of the day, most prosecutors just wish you'd get your act together and become productive members of society. There will be plenty of new criminals to fill your shoes. Prosecutors, like plumbers, will never run out of work. And who knows, one of these days when you age out of your anti-social desires, you might become a victim yourself and need a prosecutor to be an advocate for you.

Anonymous said...

@Anon 9:48. You act as if I said a crime had not yet occurred. What I stated was, a defendant is not convicted at the time a grand jury looks at the evidence to either indict or not. This has nothing to do with the alleged victim, nor the level of danger the defendant might pose. I am solely speaking if a defendant is found guilty at the GJ level. He/She is not.

Gritsforbreakfast said...

5:12, your reference to "you criminals" to describe anyone who disagrees with you, not to mention the off-topic, self serving pablum in your comment, is the sort of attitude that draws out prosecutorial critics on these strings. You complain about others not staying on point, but if one took out all the off-topic aspects of your comment there'd be nothing left but "Anonymous" and a date stamp.

Anonymous said...

Look what happened in Harris Co. this last District Attorneys election. This is a perfect example why this bill must not be passed.

Anonymous said...

Anon 11:20 I agree, read the David Jennings (Big Jolly)article written today in the Houston Chronicle and you will understand why we must contact our elected official's and ask that they not vote for this bill.

Anonymous said...

After dragging my eyes through his last blast (the end of an entire days worth) he actually said something worth while.

"Newsflash: prosecutors are only one component of an adversarial criminal justice system along with the cops, judges, grand jurors, petit jurors, defense attorneys, appellate judges, etc.. Prosecutors don't typically investigate the crimes, nor or they typically involved in the decision to file charges or make an arrest."

Yes, it truly takes a team effort to rightfully convict the guilty. The problem is that once it becomes obvious that someone was wrongfully convicted (after the fact), the investigation / vetting to locate the bad apple in the system ends up indicating that it was not just the ADA and the crime victim's fault. While not a newsflash by any means, the lack of desire or a basic requirement to vett key portions of an arrest report (reason why arrested) or a Line Up proceding prior to: *presenting alleged facts to the D.A's Intake, *the GJ, participating in a jury selection, *filing ready for trial notices or *plea bargaining (a form of false confession) vs. doing the right thing begot $80K per year, plus, plus. To file a bill seeking to mask the main players is distrubing & lays the ground work to mask everyone.

As for his last sentence one can see he lost control of the keyboard due to incontenence or to peek out the blinds. If they (Detectives) were to vett the reasons provided to them for an arrest and the D.A's. Intake were to vett the reasons given to them by the detective on the other end of the phone prior to seeking charges that'd be a form of investigation. As to why in the world self proclaimed Criminal Defense Attorneys fail to investigate prior to filing ready for trial notices is disturbing and business as usual. When the judge sleeps or doodles a kangeroo court is in session. When professions' that rely on the by product of investigations to the point of creating postions with the title of Investigator or Detective or Grand Jury decides not to investigate or detect or vett, you get what we've gotten for our buck.

As it is now, we got a blame & defend game and it deffinately isn't the ADAs' fault alone, for it takes a team effort. Eventually the ADAs will grow tired of being made the sole scape goat and stop taking everyone's word and running with it. The nation is aware of our secrets (past, present & now the future intentions of a Senator). Yes, he's correct it's time to make some calls if we don't like it.

Anonymous said...











Who you gonna call?