Opinion: Media and public lack understanding of the grand jury process

(EDITOR’S NOTE: The editor of the Badge & Gun had 25 years of experience with The Houston Post. He has served on three grand juries, including one as foreman. His opinions are expressed in this context and do not reflect those of the HPOU.)

The Chronicle and a few others are trying to indict Texas’ grand jury system without probable cause.

Strong Vetting Process

If the news media has a bent toward insinuating racism, its esteemed members should consider factors like these.

Clearly, there should be more education and a better understanding of the current commissioner/picker system. For one thing, it’s the elected judge’s responsibility to see that conflicts such as the one continuously cited by columnist Falkenberg do not happen. So too should the prosecutors. They should have foreseen problems in a capital murder case if they took a cop-killer case before a grand jury foreman who had been a police officer.

If the Whitmire bill changes the selection process, a greater onus falls into the laps of the judges. If they have no process for vetting potential grand jurors they find in a pool, the Legislature should add an appropriate provision before going forward wily-nily. If not, then conceivably grand jurors could be chosen without facing a vetting process posed to a typical petit jury panel.

It’s very likely that further in-depth research – the type that’s common during sessions of the Legislature – will find that this system isn’t broken and doesn’t need to be fixed. It needs to be better understood and responsibly used.

No Activists, Please

But please allow me to return to the selection process, vis-à-vis law enforcement. Criminal judges – surprise, surprise – should have a natural tendency to pick someone they know to be their grand jury commissioners. Yes, it is natural that a retired police officer or private investigator might know their share of solid citizens with no political agenda except to “do what’s right.”

Conveniently, the news media terms this selection method “pick-a-pal.” But where is the rock solid proof that this method has resulted in an overwhelmingly number of abuses by these so-called pals?

Falkenberg cites the fact that grand juries are extremely reluctant to indict police officers for shooting suspects that might be unarmed. She and others believe that changing the selection method will magically change this routine occurrence.  I dare to bet my first born that it won’t, sooner or later.

She and those “others” always seem to believe – actually not believe – the reasoning behind following the law of the land.

And this is why it’s of paramount importance not to be appointing activists with political agendas to grand juries. True, it takes nine votes to indict. But activists will bog down the system on the grand jury floor every time they get the opportunity. When prosecutors get a grand jury’s number – often due to one or two smarties on the panel – they will ardently refrain from taking their cases behind that particular door.

As a columnist, I suggested that judges should appoint a diverse group of commissioners who simply “picked two or three of their own” to serve. Heck, an elected office holder could serve as a commissioner and by golly make sure that a fair number of minorities were appointed. This hasn’t happened.

My suggestion wasn’t universally accepted. Why?

As recent events testify to, many local minority politicians likely would never suggest that their constituents volunteer for such a dubious duty.  Their adamant opposition to the Ferguson grand jury’s decision certainly indicates that they don’t believe in the system. Ironically, they insist that it’s too political when it’s actually not political enough to suit their agenda.

Obvious Routes to ‘Reform’

Under these conditions, is it no small wonder that there is a lack of African Americans on grand juries, not just in Harris County but probably everywhere else in Texas and elsewhere?

It’s a well known fact that African Americans and Hispanics find it difficult to serve a three-month term. I served with an African American woman on my most recent grand jury. She worked for Southwest Airlines and said the company was positive enough about her volunteerism to rearrange her schedule for the duration of the term.

Why can’t judges and other politicians encourage more businesses with numerous minority employees to commit to a similar arrangement? It’s worth a try before indicting a selection system and trying to change it based on one or a few aberrations such as the one Falkenberg uses in her crusade.

There could be others for sure in a state as big as ours and given the crime rate.

Senate Bill 135 by HPOU’s great friend, Sen. John Whitmire, D-Houston, would eliminate the use of commissioners and leave the selection to judges using regular jury pools. Surely the dean of the Texas Senate will leave no stone unturned while researching the issue. An exhaustive fact-finding effort is in order to determine just how often justice is not served when grand juries are empanelled by a judge and commissioners in each of Texas’ 254 counties.

I for one would like to see a list of names of commissioner-picked “pals” who failed to do the right thing while behind the doors of a grand jury. From my experience as a commissioner (three times), I was thankful to have current or retired public safety folks on the same panel. One of my commissioner efforts also included a Houston arson investigator. He was Hispanic. He recommended three Hispanics for the panel in question. Would Falkenberg have objected?

The grand juries I was on never indicted a ham sandwich. We didn’t rubberstamp what the prosecutors wanted, either. We asked them hard questions in iffy cases. It was part of the job. The last grand jury I served on had a certified public accountant as one of the 12. She calculated that we issued no bills seven percent of the time. That’s higher than average. When that rubberstamp was used it said NO BILL.

Activists who criticize grand juries without really knowing how they operate and the nature of their task don’t realize the number of cases that don’t have to be presented because the defendants plea bargain so they won’t have to go to trial or the prosecutors realize they simply don’t have enough evidence to even go before a grand jury.

Another thing that they fail to consider is the prosecution team. Most who present cases to Harris County grand juries are women –women of all races, by the way.

If the news media has a bent toward insinuating racism, its esteemed members should consider such factors as this one.

The news media also complains about why certain charges are filed or not filed. Often the reason is that grand jurors take prosecutors to task for “bringing us this inane case which has no obvious probable cause.”

The prosecutors always responded by saying something like: “Yes,” we know, “and these complicated examples are part of the job – we take them to a grand jury and let you folks decide.”

Columnist Lisa Falkenberg cites the case of a convicted cop killer on Death Row as a single example of why grand jurors should be picked directly from petit jury pools instead of having commissioners choose the 12 persons who serve two days a week for three months.

Falkenberg emphasizes her belief that it was wrong to use a current or retired Houston police officer as the foreman of a grand jury considering an indictment against alleged cop killers – especially when the officer involved was Charles R. Clark, a fallen hero from April 3, 2003. She also pointed out her belief that too many retired law enforcement personnel wind up on grand juries.

Upending Selection Process

Falkenberg continues to express outrage at the grand jury, empanelled by state District Judge Denise Collins, for its treatment of the girlfriend of defendant Alfred Dwayne Brown, a Death Row inmate who now faces either a new trial for Clark’s murder or maybe even a walk out of Huntsville to freedom. Let me say as a former daily newspaper reporter and columnist that she’s done an impressive job and surely will be nominated for major journalism awards.

However, because of the Clark case, she seeks to upend the grand jury selection process that generally entails a criminal district judge appointing four or five “grand jury commissioners” to select a pool of people meeting qualifications specified in state law. From this pool the judge then picks 12 grand jurors and two alternates.

Falkenberg and others – namely defense attorneys and civil rights activists – assert that too many commissioners hail from the law enforcement community and that they, in turn, select too many grand jury candidates who are retired law enforcement officers or their friends or relatives.

As an old newsie, I have done my share of stories about grand juries. Falkenberg and every other reporter who didn’t just fall off the turnip truck should know that no defense attorney is ever going to have anything positive to say about grand juries and their actions. Yet CNN and the rest of the media bunch wasted no time in wrangling one defense attorney after another to opine in the Michael Brown case in Ferguson, Missouri.

That debacle best illustrates the fact that no one in law enforcement, the news media or any other worthy member of any other American institution has done an adequate job of educating the public about grand juries.

This lack of knowledge and understanding has hurt law enforcement doing its job and – in my opinion – set back race relations a number of years. I admit that while that’s a view from the high road, I also will point out that too many Americans read into grand jury reports and findings what they want to because their mind is made up on guilt, innocence or a conspiracy.

Shroud of Secrecy

A grand jury determines whether enough probable cause that a crime has been committed for a defendant to be charged with the crime. Despite what defense attorneys and civil activists would lead people to believe, there are no decisions concerning guilt or innocence in the grand jury room.

I have served on three grand juries – including one as foreman – since 2004. Practically every time we met as members of these admittedly powerful bodies we expressed the desire to pass judgment on certain defendants based on the strong evidence presented to us. Then we dutifully refrained from dwelling on our opinion, reiterated our real task and performed it by voting a true bill.

Falkenberg and others like CNN’s Jeffrey Toobin, who has the audacity and hypocrisy to bill himself as “a lawyer and a journalist,” regularly decry the grand jury process as “shrouded in secrecy.”

Indeed. Indeed. And for good reason.

When you are behind those closed doors attempting to live up to your oath, you and 11 others know the context of every discussion in every case. The proof in the proverbial pudding is the true bill or no bill on each piece of paperwork.

It’s when self-styled experts take conversations out of context that the system could very well go awry.

Our friendly neighborhood columnist suggests that grand jurors bullied the girlfriend of Alfred Dwayne Brown into changing her story to fit what the prosecutor needed for a capital murder indictment against Brown.

If that is the case, then myself and the other 35 people with whom I served are all bullies. Grand jurors are like police officers – they don’t like liars or the perception of liberties with the truth. There are no judges or defense attorneys in the grand jury room. That means the “ordinary people” who serve can literally ask away without hindrance.

Let me tell you, it’s a real sweat box for many grand jury witnesses. They no doubt would rather face a judge than 12 peers asking tough questions. After four hours of strenuous questioning of one witness, we checked the chair after he left the room. It was embedded with sweat from top to bottom. It was literally aired out before the next witness was called.

There are defendants in the Courthouse who might even rather cop a plea than testify before a grand jury. In fact, many defendants do. Just ask any prosecutor you know.