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.
This is a hideous bill from the perspective of the general public. If you live in Harris County, you saw firsthand how a political opponent was able to leverage a runaway grand jury and defeat a reformist District Attorney. Leverage is a nice word that I use when I don’t want to allege that said political opponent was complicit in the witch-hunt.
The Denton Record-Chronicle did a long-form investigative piece about Grand Juries and the problems that occur under current rules – you really need to read the whole thing to understand this issue: Grand Jury System Questioned
Bob Clifton, a retired businessman, once branded a vexatious litigant by a visiting judge after he filed our lawsuits against the city in two years, stands accused of asking Mayor Mark Burroughs to pay him to abandon the 2010 mayor’s race.
Sounds really bad doesn’t it! But look at the makeup of the grand jury that indicted him:
One grand jury member who indicted Clifton heads a city department. One was a former mayor. One served on Burroughs’ re-election committee. Four had donated to at least one of Burroughs’ mayoral campaigns.
Click on the chart below and look at the relationship connections that the Denton Record-Chronicle was able to produce – this would be impossible under Estes’ bill:
Heh, reminds me of Judge Susan Brown’s 185th Runaway Grand Jury. Not that any “real” journalists have bothered to look into that one, of course. Don’t worry, it’s coming and this is just another drip. But for now, think about how bad this bill is and how it will encourage other grand juries to support political candidates. Not only is that a bad thing for our political system but think about the good people that are trashed by runaway grand juries.
The Denton Record-Chronicle report continues with this:
The findings raise questions about the fairness of grand jury selection under the “key-man” system, a method used throughout much of Texas whereby an appointed commission — not random selection — determines who sits on grand juries.
The U.S. Supreme Court has long held the key-man system is constitutional but vulnerable to abuse. Court rulings and academic studies have found the system tends to favor the powerful and disenfranchise racial minorities, the poor, women and the young. Those factors led most states and the federal government to abandon the system in favor of a more random process.
“The big disadvantage of the key-man system is the disenfranchisement of a large section of the population,” said Greg Hurley, an analyst with the Center for Jury Studies, part of the National Center for State Courts, a nonprofit court improvement organization. “Due to that, there have been a number of cases that struck it down in many jurisdictions.”
Only Texas and California still use a key-man system to select grand juries, Hurley said.
Now that really caught my eye because that is pretty much what happened in Harris County with Judge Susan Brown’s 185th Runaway Grand Jury. But in this case it would be a “key woman” system, one in which Wyatt Earp wannabe Patricia Pollard was involved. I say “key woman” because she was on four grand juries under then Judge, now Harris County District Attorney Mike Anderson. Um, hmm. Four grand juries. Not two – remember, Anderson looked me in the eye across the table and told me it was two grand juries and that he barely knew the woman. His campaign team liked that post so much they had it on their website for months. But what Anderson said wasn’t true, just as much of Anderson’s campaign rhetoric wasn’t true. Pollard was on four of his grand juries, including the very last one, and he knows her well enough that they were chit-chatting and hamming it up at a debate I sponsored. A “real” journalist needs to look into this and also check out the other members of Anderson’s grand juries and then cross check them with the 185th Runaway Grand Jury. Drip.
The key point is that if Estes’ bill passes, investigations such as the one in the Denton Record-Chronicle would be impossible. Even the Houston Chronicle, back when it had reporters that weren’t tied to Anderson’s hip and who knew how to investigate, figured out that grand juries could be and were compromised:
Part of the problem is due to the selection process. Of Texas’ five largest counties, only Harris, Travis and Tarrant still choose grand jurors exclusively through commissioners selected by the presiding judge, who often end up being his colleagues or employees, who then turn to their colleagues.
Of the 129 Harris County grand jury commissioners selected in 2002 and 2003, 65 — just more than 50 percent — were in some way linked to the area’s legal establishment. The study identified those individuals as judges, attorneys, court employees, bail-bond agents, probation officers and law enforcement officers. One judge even selected three of his court employees as grand jury commissioners.
If Estes’ bill passes, I won’t be able to tell you that this system is very much in place today in Harris County because I won’t be able to point out to you that the very same Patricia Pollard and several of the other members of Judge Susan Brown’s 185th Runaway Grand Jury are ‘serving’ together again on a current grand jury. Nope, I couldn’t tell you that. Fortunately, Estes’ bill isn’t law. Yet. Drip.
Think about that for a minute. Out of a county of four million people, somehow several members of Judge Susan Brown’s 185th Runaway Grand Jury, who happened to also be on several of Mike Anderson’s grand juries together, end up ‘serving’ together again on a current grand jury. I’ll add the “Runaway” later if necessary but seriously, THINK about that. Especially if you are a “real” journalist. Drip.
Let’s check the language of the bill:
(a) Except as provided by Subsection (b), information collected by the court, court personnel, or prosecuting attorney during the grand jury selection process about a person who serves as a grand juror, including the person’s name, home address, home telephone number, social security number, driver’s license number, and other personal information, is confidential and may not be disclosed by the court, court personnel, or prosecuting attorney.
Notice what the bill doesn’t say – it doesn’t say that grand jurors, such as Patricia Pollard, are prohibited from outing themselves or holding their own press conferences or write letters that make wild accusations when they know for a fact that no criminal activity occurred. It begs the question: did someone at the Harris County District Attorney’s Office ask Estes to carry this terrible bill? Harris County Assistant District Attorney Justin Wood registered to testify for the bill.
I realize that a lot of this is “inside baseball” to those of you that do not live in Harris County and aren’t familiar with the shameful campaign of the current DA. And maybe it is boring to you. But just as we can’t have runaway prosecutors like Mike Nifong, we can’t have secret, runaway tribunals that abuse the power of the grand jury process so that they can get their favorite politician elected.
Unfortunately, the bill was passed out of the Criminal Justice committee and is now sitting on the intent calendar. It is hard for me to believe that Sen. John Whitmire, Chair of the committee, let this happen but it is what it is. Perhaps other leaders of the Senate, maybe even Lt. Gov. David Dewhurst, will see this bill as the cancer it is and will leave it sitting in the dust bin of history. One can only hope. And act. I’ll be acting by contacting my senator, Sen. Larry Taylor, and asking him to vote against this bill if it comes to the floor for a vote and I hope that you do the same by contacting your senator.
Transparency is a good thing. Secret, runaway grand juries are a bad thing. Take that to the bank.