What next to reform grand juries now that pick-a-pal is no more?

With Texas eliminating its pick-a-pal grand jury system during the 84th legislative session and Alfred Brown walking off of death row a free man following revelations of grand jury misconduct, I asked Amanda Marzullo, Policy Director for the Texas Defender Service, to visit with me about the implications of Texas' new reform and what remains to be done. Listen to the interview below and find the full conversation transcribed below the jump.

Texas Grand Jury Reforms: Next steps now that pick-a-pal is no more 

Scott Henson:       This is Scott Henson with a Grits for Breakfast podcast recorded on June 26, 2015.  I am here today with Mandy Marzullo who’s the Policy Director at the Texas Defender Service.  Thank you, Mandy, for coming to chat with me today.

Mandy Marzullo: No, thank you Scott.  I’m happy to be here.

Scott:                    All right.  Well, I asked Mandy to come and talk to us about Texas’ new grand jury reform legislation.  It was House Bill 2150, this session passed by Carol Alvarado in the House and John Whitmire carried it in the Senate.  This bill eliminated the key-man system for selecting grand juries and has grand juries, henceforth, selected through the same jury wheel that they’re selected for petit juries.  So, Amanda, tell us why we did this.  What spurred them to make this change this session?  Why did this become such a big deal?

Mandy:                 Thank you, Scott.  So, I guess the big problem with the grand jury commissioner system, there are sort of two that kind of dovetail with each other.  The first is that it produces grand juries that are really representative of the judge’s, or the presiding judge’s, social circle and not of the community at large.  The way the system works is that a judge will appoint somewhere between three and five jury commissioners who will then go out and recruit people to serve on a grand jury. Obviously there is always selection bias, but in this instance, there’s severe selection bias.  So, they found that when you’re dealing with— It produces grand juries that are entangled with law enforcement: ex-law enforcement officers, if not sitting ones, ex-DAs, people who are affiliated with the local government.  And it leads to the underrepresentation of minorities.  This really came to light in the Alfred Brown case out of Harris County where a grand jury was empaneled via the commissioner system.  Under Texas law, previously, judges had the option to use grand jury commissioners or to draw grand jurors from the wheel at large.  What the bill did is it just said everybody’s got to be empaneled through the random selection process.  In the Alfred Brown case, you were dealing with a situation where the defendant basically had an alibi, and a witness, his girlfriend, was testifying before the grand jury to confirm that she saw the defendant at her apartment the morning when the alleged murders took place and that he called her from the apartment at a time when he was supposed to be elsewhere.  And the grand jurors were sort of skeptical of this and threatened her, and the transcripts reflect, you know, “As reported by Lisa Falkenberg,” that they were even threatening her with the loss of her children, potential perjury.  It turns out that she was prosecuted for perjury in the case and eventually recanted her testimony.

Scott:                    She spent a bunch of time in jail.

Mandy:                 Yeah, 75 days, I think.  So, he was literally at a point where his defense was compromised.  Not only was it undermined, or did the grand jury not hear the story in a way that could be absorbed and processed, but it undermined the proceedings at trial.

Scott:                    They actually engaged in witness intimidation, quite literally, in a way that would have been prosecuted if anyone on the defense side had ever done anything remotely that egregious.

Mandy:                 Yes, absolutely – witness tampering.  The bill is wonderful in that it sort of eliminates this.  It makes it less likely that you’re going to have sort of proactive, prosecution-oriented people sitting on a grand jury.  But, there’s still some things that really need to [happen], or other reforms that Texas should consider.  Like in the Alfred Brown case with his girlfriend, if she had a lawyer present at the time of her testimony, that would have gone a long ways to sort of preserve the integrity of her testimony and ensure that her rights were not violated at an early point in the proceedings.  A lawyer would have been able to tell her: when she had criminal exposure, under what circumstances could she be prosecuted for perjury, and probably objected to the line of questioning that was posed to her, and bring it to a judge.  I also think that the grand jurors would have been less likely to ask her those questions, if she had an attorney present.  So, I think providing witnesses, both with a right to have a lawyer present during these proceedings, and potentially even to have a lawyer appointed, would go a long way to ensure that witnesses are able to testify truthfully.

Scott:                    And this is something that happens in other states?

Mandy:                 Yes, Colorado, in particular, allows attorneys to be present during the proceedings.  A bunch of other states even provide for appointment of counsel. It varies depending on the different circumstances.  Some states only allow counsel to be present if immunity is not provided to the witness in exchange for their testimony, but, even that would be a huge advance, I think, under Texas law.

Scott:                    Right, if she had had immunity, then she wouldn’t have had any problem testifying.

Mandy:                 Yeah, exactly.  Well, up until… usually immunity agreements say, ‘well, if you’ve perjured yourself, the immunity doesn’t apply; you can be prosecuted for that.’  And that might be a moment where it would be justified, given the history of problems that Texas has had, to provide counsel even in those circumstances.

Scott:                    Gotcha, gotcha.  So, not all states use a grand jury.  We were the last one to switch from the key-man system, but quite a few states and most other western countries have quit using it entirely, is my understanding.  What’s done in the states, in the majority of states, that don’t actually use grand juries for most of their indictments?

Mandy:                 There are a lot of variations on a theme.  Texas actually has sort of a hybrid system, where you have a right to an examining trial, which is sort of like a grand jury proceeding, but it’s in front of a judge.  If you’re arrested or if the proceedings are somehow initiated against you before an indictment, then you can sort of examine the state’s evidence.  In many other states, let’s say, California, Pennsylvania, they have what are often referred to as preliminary hearings, which are like a grand jury proceeding, but they proceed right in front of the judge, just the way an examining trial would happen in Texas, where the state puts on their witnesses, they present their evidence, and the defense is able to cross-examine witnesses, and at the end, the presiding judge just makes a determination about whether or not there is probable cause for an indictment.

Scott:                    So, tell me why one might prefer the examining trial or preliminary hearing over the grand jury or vice versa.  What are the pros and cons that would make you think one would be better than the other?

Mandy:                 There are pluses and minuses to both systems.

Scott:                    And I say that knowing that you’re on the fence, that you don’t know for sure what you think is the right one.  But, I’m saying, tell me what the arguments are on both sides?

Mandy:                 [Laughs] Are you accusing me of not having an opinion on something?

Scott:                    I’m accusing you of having so many opinions, you can’t choose among them. [Laughs]

Mandy:                 In terms of the, let’s call it the examining trial for our purposes, what makes this wonderful is that it is a contested proceeding; that the defense is able to participate in it in a meaningful way, and cross-examine witnesses, and have a sense of what the allegations are against the defendant.  It’s all open and – often it is in a public proceeding.  So, it forces the prosecution to dot their I’s, and cross their T’s before they’re even proceeding.  And there are a lot of merits to that.  In terms of the grand jury proceeding, I think that what the proponents of this system will say is that it’s an independent investigation and that it’s a determination by, not just what one sitting judicial officer who maybe even publically elected, but a jury of your peers who are thinking through whether or not there are grounds to proceed, and that they have their own investigational powers.  And I do think that the grand jury system can work well; it’s just, when the defense is able to participate to a certain degree or when they’re really able to meaningfully conduct an investigation instead of passively and consuming information that’s presented to them.  There was a case out of Lubbock, I believe a year ago, maybe a little bit more, where it actually worked pretty well, where a defendant was arrested on a double-homicide charge, capital murder was in play, but the defense attorneys were appointed promptly, they were able to interview witnesses and preserve their statements, and what they did is they wrote a letter to the grand jury, suggesting witnesses, and they no-billed.  After hearing the testimony of the people who were there, they determined that it was a case of self-defense.  And that’s a moment when the grand jury functioned well, and I’m not sure that a lot of sitting judges would have felt comfortable not issuing an indictment in those circumstances.  So, it’s hard to say which system is better.  I think there are pluses and minuses to both.

Scott:                    Right.  And you were suggesting earlier that there are some states where the grand juries do appear to be more of an independent investigative body.  When I hear you discussing this, my thoughts are: Well, I’m not sure our grand juries in Texas behave in that independent a fashion, that really they do appear to be just sort of an arm of the DA and whatever the DA wants seems to happen.  But, you were saying, in some states, maybe there’s a lot more— a higher percentage of no-bills, and maybe it isn’t the case, that it’s not just whatever the DA wants happens.

Mandy:                 And that’s definitely the case.  It’s hard to know exactly why that is happening, but one of the things that these states seem to have that’s different is that the defendant either has a right to testify or to make some sort of presentation to the grand jury, and in those situations, that gives the defense attorneys, if nothing else, just notice the grand jury is convening, that you can serve, what they call cross-grand-jury notice on a prosecutor to say, “My client would like to testify in the event that you’re convening a grand jury.”  And so, you can then have your client write a statement, if that’s what you think is in their interest and deliver it to them, or have your client testify.  I think that might encourage the grand juries to look at other evidence that’s out there.  I think part of the problem in Texas is that we’re dealing with a situation where the prosecutor is the only one that’s in the room and the only one that’s making any representations to this panel.  It’s not due to any sort of malfeasance or bad intentions by the prosecutor, it’s just that there’s, I think, like a glaring absence.

Scott:                    Only one side’s there.

Mandy:                 Yeah, exactly.

Scott:                    Okay.  So, now that we’ve gotten rid of the key-man system and we’re going to have fair grand jury pools, you’ve mentioned appointing counsel for witnesses or allowing people to have their own attorney.  What else do we need to do to fix our grand jury problem?  Because there are a lot of things that happened in the Alfred Brown case that aren’t necessarily fixed by just this one reform.

Mandy:                 Well, there are a bunch of things.  I think that giving witnesses copies of their statements to the grand jury would go a long way.  One, that it would enable them to know what they testified to, and they already of it, so any sort of interest that the state has in secrecy of that, doesn’t make any sense; and to enable them to make any corrections, if they look at the transcript and realize that it’s not representative of their entire account of some incidence.  And you can always put that under seal and put issues with it.  Also, making grand jury transcripts available, both to the defense at some point in the criminal proceeding, but also to the public at large.  These are proceedings that often operate under the cloak of darkness for a reason, but at some point, the state’s interest in secrecy sort of expires.  And at that point, the public should be able to know how they’re conducting the investigations, just as we have access to investigational files after a certain period of time.

Scott:                    Right.  I remember Bryan Hughes last session actually had a bill that would have, after a certain point, made the transcripts public.  I know there was a bill that was more limited, making some transcripts public later this go round.  So, this has been discussed some.  But, I think this is the first session I remember grand jury issues really being honed in on in this way, and, of course, Lisa Falkenberg and her Pulitzer-Prize winning columns are the main reason for that, I guess.  That, and just how egregious the Alfred Brown case was, … Well, any other thoughts on the topic before we wrap up?

Mandy:                 Not right now.

Scott:                    Not right now?  All right, well that’s all there is to know about grand juries, according to Mandy Marzullo.  So, if you’ve heard this, there’s nothing else.  That’s all you’ll need.

Mandy:                 [Laughs] Clearly, everything.

Scott:                    All right.  Thank you very much.

Mandy:                 Thank you.

Transcribed by www.iDictate.com

Edited for grammar and clarity by Scott Henson.