Sunday, December 07, 2014

Should Texas abolish rather than reform grand juries?

State Sen. John Whitmire has filed legislation to eliminate the "key man" system of selecting grand juries in Texas. But in the wake of national debates of the failures of grand juries to hold police accountable, it's worth asking whether grand juries oughtn't be abolished entirely. Public Radio International pointed out that "England abolished grand juries decades ago because they didn't work." Here's a notable excerpt:
The concept [of grand juries] comes from our colonial parent, England. "It goes back centuries here," explains London-based legal writer Joshua Rozenberg. "In medieval times, it was drawn from the local neighborhood. And these were men who were expected to look around and report criminal behavior within the community. They're people who actually knew the offenders, as we'd call them today, and could perhaps bring them to justice."

By the 16th century, that morphed into the system we'd now recognize as a grand jury: A group of people listening to a prosecutor's evidence and deciding whether to indict.

But the United Kingdom actually abolished its grand jury system in 1933. "We now send cases that are serious enough straight to jury trial," Rozenberg says. That way, both sides are able to present evidence and make their arguments, which is definitely not the case with a grand jury.

In fact, the UK exported grand juries to most of their former colonies — Canada, Australia, New Zealand — and virtually all of them have stopped using them.

"They are said to be 'putty in the hands of the prosecutor.' In other words, the prosecutor really tells them what he or she wants and they will go along with it," he says. "Or that's what we are told, because we don't really know. We can't watch grand juries at work."

That's why former New York judge Sol Wachtler once famously said that a district attorney could get a grand jury to "indict a ham sandwich." But, Rozenberg points out, "it must be even easier to get the sandwich acquitted if that is what the district attorney may actually want."
Whitmire's bill was reacting to alleged misconduct by grand juries in Houston but the Ferguson and Staten Island episodes (much less a similar episode in Jasper, TX) have cast more light on these shadowy entities than at any point in my lifetime, though their cozy relationship with law enforcement has been well-documented for years. There's an opportunity now for a more substantive debate about the role of grand juries. Perhaps instead of "reforming" them, Texas should abolish these anachronistic vestiges of colonialism and let elected prosecutors make the decision whether to pursue a case, whether against a cop or a private citizen, since as a practical matter that's what's happening, anyway.


Anonymous said...

Absolutely Grand Juries should be abolished because they have been proven to be prone to abuse by prosecutors. They ALWAYS get an indictment they want and can MANIPULATE a NO BILL when the defendant is their "pal". Consequently Grand Juries have sadly become a weapon for the DA to attack/retaliate their opponents while at the same time shielding their supporters. They have perverted Grand Jury's original intent. For minorities critical of the criminal justice system, the Grand Juries have literally become a lynch rope.

Anonymous said...

To protect minorities from retaliatory charges(referring to anon @ 9:26)every serious felony charge filed by the DA should be run through an independent third party where the criminal defendant will be allowed to demonstrate whether charges against him/her are retaliatory or based on other extra-judicial motive. Only after such an inquiry should criminal proceedings be allowed to proceed. In other words only then can they be detained or held on bond. The Harris County Criminal Defense lawyers and the media can really help during this phase. This will do away with the "lynch rope" fears raised by anon @ 9:26

Anonymous said...

How do you get past the Fifth Amendment requirement for a grand jury indictment

"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury"

I assume this has been incorporated and applies to the states as well as to the Federal government.

Gritsforbreakfast said...

@10:17, Two points: first, that's for federal court. Texas could amend the state constitution to get rid of them. Second, grand juries aren't limited to "capital" or "infamous" crimes, whatever "infamous" means in the age of the internet.

According to Wikipedia, "While all states in the U.S. currently have provisions for grand juries, only half of the states actually employ them and twenty-two require their use, to varying extents. The modern trend is to use an adversarial preliminary hearing before a trial court judge, rather than grand jury, in the screening role of determining whether there is evidence establishing probable cause that a defendant committed a serious felony."

Lane Thibodeaux said...

Anoy 10:17 am: 5th Amendment grand jury guarantee has not been incorporated to apply to state prosecutions through the 14th Amendment. Hurtado v. California, 110 U.S. 516 (1884). Many states do not use grand juries for deciding which cases are bound over for formal charging.

Phelps said...

How would getting rid of grand juries possibly help liberty?

The complaint is that grand juries can be manipulated. Fine. But what is the alternative? If we get rid of them, then the prosecutor just decides on his own? How is that better? At least now, he has to at least try to manipulate them.

As it is now, sometimes juries no bill someone. Presumably, in at least some of those, it spares someone that would have otherwise been unjustly prosecuted from the horror of a trial. If we get rid of them, everyone that the state wants prosecuted will get tried, and anyone that the state doesn't want tried WOULD NOT HAVE BEEN TRIED IN THE FIRST PLACE.

Getting rid of grand juries helps only the prosecutors. It is of NO help to the People.

Simran said...

Maybe abolish prosecutors instead of Grand Juries?

Anonymous said...

Simran @ 3:27 I agree. Abolish prosecutors!! Thats funny.

Gritsforbreakfast said...

Phelps asked: "what is the alternative?"

The answer was in my response at 11:13 - "an adversarial preliminary hearing before a trial court judge." More transparent, more accountable, still limits prosecutor power.

rodsmith said...

could also try a real crazy ideal grits.

Educate our citizens both on general education and how THEY are the FINAL check on the government.

like the man said a DA can charge a ham sand. But if the jury be it a grand jury or a regular jury knows their job. It's going to be dead on arrival. soon to be followed with a massive check one the civil suit for false arrest is done.

It is the citizens job to watch the gov and approve any action they take in or out of court.

sunray's wench said...

Grits, having an adversarial pre-trial hearing still ties up the system and appears to an outsider to be a duplication of effort.

Someone asked what the alternative might be. In the UK now, or rather in Engtland and Wales as Scotland does things slightly differently, we have the Crown Prosecution Service. This is an independent body (and by independent, I mean independent of the current political governing body and of the police) that reviews case information and decides whether to bring a prosecution or not. It consists of highly trained and experienced lawyers, and removes the individual campaigning element of the American system. It also leaves the police to gather and present evidence, rather than bringing prosecutions themselves, and holds the police to very high standards.

Works for us.

The Grand Juries also decide what level of charge to bring against an individual, and that's where it hit us personally. With an ineffectual court-appointed attorney, the charge was not challenged and the resulting sentence was much longer than it might otherwise have been.

Gritsforbreakfast said...

We don't have independent, professional prosecutors like you describe, sunray, our DAs are professional politicians. When politicians are calling the shots on charging decisions, there needs to be oversight. Grand juries provide a negligible amount, judges might give us slightly more but then at least it's an open, adversarial proceeding.

To just give DAs free rein wouldn't work here so long as they're elected.

Phelps said...

we have the Crown Prosecution Service. This is an independent body (and by independent, I mean independent of the current political governing body and of the police)

That sort of independence was the theory behind our Civil Service laws. As we have seen from the IRS, INS, EPA, BLM, and a dozen other alphabet soup agencies, that does nothing to protect liberty long-term. Instead of serving the regime du jour, they instead create their own regime that is just as politicised and corrupt.

I would rather have a system that is eventually answerable to the People than one like we have with the IRS, which is essentially, "Fuck You America."

FleaStiff said...

If a prosecutor really did ask a grand jury to indict a ham sandwich, the grand jury would probably do it. What is worse, is that a petty jury would probably convict the hand sandwich at trial.

The problem is not as much over zealous prosecutors as un-educated jurors. Its jurors who are putty because prosecutors and judges do not want a powerful jury who will actually take the prosecutor to task with questions about should this law be enforced and should it be enforced in this particular instance? The prosecutor does not want a grand jury that asks 'what other tests were performed on that weapon'. The jury is putty, because the prosecutor and judges just want a pliable rubber stamp.

Stephen Karnes said...

There is some good debate here, I think that if the police and district attorney were aware that there would be a jury trial for every arrest then we would see a serious slowdown in arrests, I think too many times cops will arrest, just to cause the person inconvenience for a period of time. If people knew that once arrested, a person would go to an examining trial with attorneys before a judge to determine whether or not there was evidence to bind the defendant for trial. then cops would be more selective about their arrests. NOW let us go one step further - Eliminate Plea Bargaining, every case must go to jury trial, bar none. This step in itself will reduce the number of people in prison in America by over 60% I would wager. The simple knowledge that every single case must go before a jury, would stop police from arresting people and letting it all sort out. they would be forced to do their jobs and investigate crimes before deciding to just lock them up. This would probably help with the need for over 100 prisons in Texas. Incarceration does not need to be a big business money maker we need families working in our communities, not on turnrows. The examining trial would be better than a Grand Jury because a Judge knows the law and a DA is not going to bring a flimsy case to a Judge where he or she could run it past a grand jury. ALSO an integral part of the system is to hold prosecutors accountable for frivolous or useless prosecutions. when people like the many who are being released lately for false convictions and the shenanigans pulled by the worthless judge and prosecutor from another county. When these things happen, those people should be tried and hopefully convicted by the systems they willingly corrupted. Then I believe you will begin to see, a reduction in prison population, a curtailment of the Big Business of prisons. Less false convictions, and most importantly, our citizens will be able to believe in their justice system again. It wont be a place to keep MHMR patients or racial prejudice, it will be honest by definition, all we have to do is make it where it has to be honest Grits. That is something WE can do.

Anonymous said...

Or to make the further point, misdemeanor offenses are currently filed by Information ( Classes A & B) or Complaint (Class C), completely by-passing a Grand Jury. The potential loss of liberty upon conviction of a Class A or B misdemeanor, though of shorter duration, is equally as complete as with a felony.

diogenes said...

What if, in addition to better educating the public about the court system, we made an effort to seriously encourage people to treat jury duty as a (dare I say "sacred") responsibility instead of something to complain about and duck out of on any excuse they can find?

TriggerMortis said...

Grand juries or not, the outcome of any criminal proceeding will still be decided largely by the prosecution.

Case in point; Back in May of 2010, Bellaire Police Officer Jeff Cotton was prosecuted for aggravated assault by a public servant for attempting to kill Robbie Tolan in his front yard after other officers assaulted Tolan's mother.

The prosecutor, Clint Greenwood, a former cop himself (currently working as a cop again at Harris County Sheriff's Department)put on such a farce of a trial that I had to walk out of the courtroom to suppress the screams of injustice that were threatening to erupt from my throat and that would have had me instantly held in contempt by the judge.

The fact is it won't really matter much whether we have pick-a-pal, or abolish grand juries entirely. It will still be the district attorneys who decide on the charge, and it will still be the prosecution who decides how much effort and what evidence is presented to jurors.

jasonhgtruitt said...

I'm with you in spirit, and adversarial hearings make sense where we need a better filter for weak cases that should never have been prosecuted, but you have to remember (and I know you do), that there are two tracks for justice: one for the average citizen, who doesn't stand any more of a chance in front of a pro-prosecution judge at an adversarial hearing than they do in front of a grand jury; and one for the police, prosecutors, and judges who occasionally find themselves in the cross hairs.

In the case of an obvious wrong that was no-billed, how are you going to make sure the bad guys get tried? A pro-police judge will decide there is no need for a trial just like a pro-police grand jury.

If people like Jonathan Salvador and Judge Jackson in Navarro County (and a myriad of others) were ever going to get prosecuted, they would have by now under either system.

Transparency won't make them play fair, and it never has. Hell, they get elected on pro-police policies (often with police union backing). Because of the politics, I don't think any amount of sunlight will disinfect the process as long as the votes go the way the police organizations want them to.

Anyway, something needs to be done, and like all solutions, it's more complicated than addressing any single facet. Getting rid of the pick-a-pal system is a start, and is probably more do-able than eliminating grand juries in Texas. Mandatory appointment of a special prosecutor in cases where law enforcement is under investigation would handle the other aspect, to the extent that it would ever get handled.


Anonymous said...

I've been researching police-involved shootings. As you know, all such cases are routinely placed in front of a grand jury.

I have a problem with the secrecy of a grand jury insofar as it helps cover up shoddy investigations of said shootings.

When a public official's actions are placed before a grand jury, the exact evidence and case should become public record immediately after the finding of indictment or no-bill.

I understand that privacy laws should allow regular citizens a bit of privacy after a grand jury fails to indict them. But give me a break, a police shooting should be heavily scrutinized.

The open records laws need to be reformed.

Anonymous said...

Have you all seen the video of the appeals judge who was charged with DWI, then had charges dropped? This is why the criminal justice system is such a joke.

Anonymous said...

Sorry, that link above is to the FOX brainwashing about cops. Here's the link to the DWI video of the judge:

Anonymous said...

An informed jury of your peers is promised to the people.

I am against the hand picked jury by the prosecutor that assures him of a win in court. I am against public employees sitting on that jury. I am against those judges that feel they must put in their two cents. The justice system is all about revenue now, not rehabilitation and reform.

R.S. Gates said...

I prepared a presentment and delivered it to the Foreman one time. I considered myself a credible person. It got the DA hopping. Ultimatly, the Grand Jury decided they did not need to hear from me and there was no indication they did anything with the information. Is the system broke? Yep. Is the system defective? Nope. Best ever designed. If you go to an examining trial, how can an average person get it before the court? I like Common Law Grand Juries. Here is a video of an important person who was charged with DWI. The DA made the case go away by taking it to the Grand Jury. Our DA did that a lot before this case.

JH said...

Eliminating the key man system would be a good start. Have grand juries selected from the same wheel as petit juries. it is a start.

Anonymous said...

In a perverse sort of way, it's almost comical to read some of the nutty comments, suggestions and rants of all of these ex-cons, criminals, and soft on crime crowd! Thank God this is Texas and views expressed on this thread represent less than one-tenth of one percent of the voting public in this great state!

jasonhgtruitt said...

"Is the system defective? Nope. Best ever designed."

I think it would be more accurate to say that it's the worst system in the world--except for all the others.

"less than one-tenth of one percent of the voting public in this great state!"

I think your math is a bit off. Were you educated with the new SBOE textbooks?


R.S. Gates said...

"I think it would be more accurate to say that it's the worst system in the world--except for all the others."

I agree that your assessment is probably more accurate. If you don't provide and alternative, you're just sniping.

sunray's wench said...

Anon @ 8.30 you forgot Foreigners. I feel left out.

But if you're happy to keep paying for injustice, then I guess there's not much anyone can say to disuade you.

Gritsforbreakfast said...

The phrase about "the worst system in the world except for all the others" was a statement by Churchill about democracy. Other than as a mindless expression of jingoism, it doesn't apply to the the Texas or US justice system. Other nations have lower incarceration rates, less crime, more protections against convicting innocents, etc., than we do.

Among western nations, our justice system is in the middle of the pack, at best, if not lagging further behind. The use of anachronistic grand jury and commercial bail systems which have been abandoned throughout the rest of the western world are cases in point.

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