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.