*An overview of Texas Grand Juries and the recent discovery of potential grand jury abuse by Lisa Falkenberg – as written by law student Brandon R. Cammack, University of Houston Law Center

Texas Grand Juries: Balancing Grand Jury Secrecy with the Rights of the Accused

by Brandon R. Cammack (law student)

1. Introduction

Lisa Falkenberg, columnist for the Houston Chronicle, has documented the story of a man indicted by an overbearing, biased grand jury selected using a controversial grand jury system known as the key-man system. This case provides an overview of how the grand jury operates and how secrecy can violate the accused’s right to an impartial review of their case. Alfred Dwayne Brown of Harris County was charged with the murder of a public official.[1] Before the State of Texas could move forward with the prosecution of his case, the law required that at least nine of twelve people selected from the community must give them permission based on a finding of probable cause that he committed the crime (i.e., a grand jury indictment). The judge selected three to five people from the county; these commissioners, as they are called, may be friends, co-workers, or associates of the judge. Neither Alfred nor the public knew anything about the commissioners’ demographics or agendas. The commissioners then chose several people from the community to assemble a grand jury. These grand jurors may be friends, co-workers, or relatives of the commissioner, or perhaps volunteers motivated to fulfill a civic duty. Again, Alfred knew nothing about their demographics or agendas.

As with all cases, when the grand jurors met to discuss Alfred’s case, the government’s attorney, a court reporter, and a bailiff were be present – Alfred’s defense could not be presented at the proceeding by a defense lawyer save an optional grand jury packet with his version of the facts and personal letters describing his characteristics as a law-abiding citizen. The jurors met in secret and nothing about their meeting was available to the public. The prosecutor presented evidence, including witness testimony, which Alfred was unable to challenge – the rules of evidence do not apply at these proceedings. There may have been exonerating evidence tipping the scales of justice in Alfred’s favor; but the prosecutor was not legally obligated to present that. In his case, the prosecutor subpoenaed Erica Dockery, his significant other, to testify, who, under oath, testified to the best of her recollection; her testimony established an alibi in Alfred’s defense.[2] The jurors were unsatisfied with her truthful responses to the seasoned prosecutor’s questioning; they continued to inquire, rather, interrogate Dockery, to the point of perjury by means of passive-aggressive threats and the “good cop, bad cop” routine.[3] Dockery had no criminal history, save a few traffic violations, but the retired officer foreman admonished her about the consequences of perjury – “10 years jail time,” “the Child Protective Services will take your kids” “You won’t see [your children] for a very long time.”[4] As Ms. Falkenberg said, “They appear to abandon their duty to serve as a check on overzealous government prosecution and instead join the team.”[5] Question after question, hour after hour, Dockery was unwavering in her story despite presumptuous criticisms of her tale that sounded off in unison. Finally, after she could no longer suffer the relentless waves of attack against her credibility, Dockery perjured herself.[6]

Months later, Dockery was imprisoned after being pressured into perjury. She was unable to afford bail, so her options regarding release were to either remain jailed away from her children or to testify as the state’s star witness in Alfred’s murder trial.[7] She chose the latter, and Alfred was ultimately convicted of murder and sentenced to death.[8]

Years after the trial, phone records found in an investigating officer’s garage were discovered.[9] This exculpatory evidence supported Dockery’s original grand jury testimony and corroborated Alfred’s alibi.[10] The trial court granted a new trial and an investigation into the grand jury began.[11] It turns out that the grand jurors included public servants, professors, and a former president of the “100 Club,” a nonprofit foundation that supports families of police officers and firefighters who have died in the line of duty.[12] The presiding juror, known as the foreman, was a veteran police officer for the Harris County Police Department. The transcript from the grand jury proceeding indicates that it was the veteran officer who instigated the interrogation, made the threats of perjury, and pressured Dockery into perjuring herself.[13] The composition of this jury was not impartial and could not have given a fair review of the case. The prosecutor exercised no restraint in presenting the murder of a police officer case to a grand jury with a foreman who was a veteran police officer. Prominent University of Houston law professor, David R. Dow, told Falkenberg that “the prosecutor’s choice of [this particular grand jury] would scream conflict of interest to nearly all reasonable people. The [district attorney’s] office is full of reasonable people. So the only logical conclusion is that they just didn’t care about the conflict.”[14]

Alfred Brown’s tragic story is only a “glimpse into the shrouded world of the Texas grand jury system;” however, the history of grand juror discrimination cases, first dating back to 1880, suggests that Alfred’s case is not the depth of the prevalence in biased grand juries reviewing.[15] A grand jury composed of citizens that accurately represented the makeup of Alfred’s community, as required by law, could have been accomplished if the system were based on random selection. Additionally, public disclosure of the grand jurors’ demographic information may have prevented the biased grand jury from ever hearing Alfred’s case.

The assembly of a fair and unbiased grand jury is a critical requirement for the proper return of an indictment of the criminally accused at both state and federal levels. At the federal level, this requirement is achieved by the use of random selection. In Texas, the preferred method of grand jury selection, known as the jury commissioner system, does not require random selection. The rules of criminal procedure require utmost secrecy of the selection process, information about the members on any given grand jury panel, and the proceedings that occur behind closed doors.[16] Utmost secrecy is inherently problematic because the proceedings are virtually devoid of a level of accountability that ensures that the process is fair, unbiased, and free of discrimination. While the statutorily prescribed conditions, or steps, for grand jury assembly will be discussed in some detail, the thrust of this discussion will be about striking a balance, in Texas, between ensuring cases are reviewed by a fair, independent grand jury and providing transparency in the face of utmost secrecy.

Grand jury secrecy in Texas, specifically in the grand jury selection system known as the “key-man” system, has received harsh criticism in recent months. The key-man system essentially allows a district court judge to select three citizens from the county of jurisdiction to select members of the grand jury. The relationship between the judge and the jury commissioners is not a factor in the selection, and neither is the relationship between the jury commissioners and the grand jurors. The jury commissioners and the grand jurors are required to meet a few statutorily prescribed qualifications, but the source of the grand jurors does not have to be based on random selection. In fact, the jury commissioners are permitted to select volunteers for grand jury service, again, regardless of their relationship to the commissioners. Although the judge makes the final decision on who will sit on a grand jury during the session, it is entirely possible for the juror panel to be related to the commissioners because of the jury commissioner’s discretion to select volunteers. To make matters worse, the secrecy laws under the Texas rules of criminal procedure prohibit disclosure of any personal information about the grand jurors unless a party to the cause requests the information with a showing of a particularized need.[17] The procedural remedy available to the accused confronted with a biased grand jury is to challenge the entire array or a particular juror during the selection process.[18] Once, the grand jury is sworn and formally impaneled, the right to challenge essentially disappears. Problematically, neither the accused nor their lawyer is put on notice of when the grand jury will assemble, or which grand jury will review their case. The key-man selection system, opportunity to challenge a grand jury panel, and non-disclosure of personal information are all intertwined so that secrecy in each area compounds, keeping the public blind as to the system’s susceptibility to abuse.

In Section II of this paper, the discussion will detail the establishment of the grand jury system and compare the history and function of both the federal and Texas grand jury systems. The discussion will then turn specifically to the Texas grand jury system; addressing the Texas constitutional guarantee to grand jury indictment in felony prosecutions. The elements and basic function of the indictment as a grand jury tool will also be discussed. In Section III, the history and development of grand jury secrecy will be covered along with the underlying policy rationale. Also, secrecy about “matters occurring before the grand jury” and secrecy in the grand jurors’ personal information will be distinguished and discussed. Section IV will discuss how both the federal and Texas grand jury selection process operates. Then, issues regarding discrimination in the selection process and the defendant’s right to challenge this process will follow.

The proposals for change will be addressed in the order of their occurrence beginning in Section IV of this paper. As a brief overview of these changes, the key-man system should be abolished because its susceptibility to abuse, and the defendant’s ability to challenge the grand jury panel based on a discriminatory selection should be extended through the end of trial. Section V will proposes tha secrecy of personal information should be diminished so that certain information is made available to the public. These changes can be achieved by amendments to the Texas Code of Criminal Procedure, a fundamental change in attitude of district court judges, and countywide dissemination of the changes to the general public.

1. Establishment of the Federal and State Grand Jury
2. The Federal Grand Jury

The grand jury has been part of the American criminal justice system since the English colonists arrived. Even before the American Revolution, the grand jury was a means of asserting American independence from Colonial governors and British rule; the Framers of our Constitution felt that the grand jury served as a “bulwark against oppression”.[19] For example, the grand jury could refuse to indict a person despite clear instructions from the Royal Governors to indict.[20] In 1791, the grand jury as a common law institution became a Constitutional institution under the Fifth Amendment so that “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger.”[21] Looking closer at the language of the Fifth Amendment, the term “infamous crime” is interpreted to include serious offenses that are punishable by 1) death or 2) imprisonment for one year or more, i.e., felony offenses.[22] An indictment is the official charging instrument presented by the grand jury to the U.S. magistrate authorizing the government to move forward with the prosecution of the alleged crimes. The portion of the clause pertaining to exceptions in cases “arising in the land or naval forces, or in the Militia” is a corollary to Article I, Section 8, which grants Congress the power “[t]o make Rules for the government and Regulation of the land and naval Forces.”[23] Combined, they “justify the use of military courts for the armed forces, thus denying military personnel the same procedural rights afforded civilians.”[24]

The grand jury clause in the Fifth Amendment is one of the few clauses in the Bill of Rights that is not binding on states by virtue of the Fourteenth Amendment.[25] In Hurtado v. California, the Supreme Court held that “the states are not constitutionally obliged to utilize grand jury review before proceeding to trial if the accused is afforded some other form of pretrial screening of the charges, such as the preliminary hearing used in California at the time.”[26] This holding is based on interpretation and construction of the Fifth and Fourteenth Amendments. On closer examination, there are really two components to this holding. In the first component, the Court is stating that the Fourteenth Amendment does not extend the Fifth Amendment right to a grand jury to the state level.[27] Justice Matthews reasoned that the Fifth Amendment ends with the phrase: “…nor be deprived of life, liberty, or property without due process of law,” and when the same phrase was employed in the Fourteenth amendment to restrain the action of the states, it was used in the same sense and with no greater extent.[28] Therefore, if the purpose of adopting the Fourteenth Amendment had been to perpetuate the institution of the grand jury in all the states, it would have embodied, as did the Fifth Amendment, “express declarations to that effect.”[29]

In the second component, and practically the same breath, the Court held that while the Fourteenth Amendment does not confer an express right to grand jury indictment at the state level, the Due Process clause requires, at a minimum, that the accused “be informed of the nature and cause of accusations against him.”[30] Naturally, some states have implemented the grand jury to afford the accused this due process right “to be informed of the nature and cause of accusations [them].”[31] Nineteen states require that all felonies be prosecuted solely by indictment, twenty-three require it for capital offenses, and thirty other states make it optional–the vast majority of states have retained grand jury review for certain types of felonies.[32]

1. The Texas Grand Jury

Texas is one of the nineteen states that require all felonies to be prosecuted solely by indictment, unless the defendant waives this right.[33] Similar to the grand jury clause in the Fifth Amendment, the Texas Constitution of 1876 guarantees the accused a right to indictment by a grand jury for all felony offenses:

…no person shall be held to answer for a criminal offense, unless on an indictment of a grand jury, except in cases in which the punishment is by fine or imprisonment, otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia, when in actual service in time of war or public danger.[34]

 

This Texas constitutional provision comports with the second component of the United States Supreme Court’s holding in Hurtado because it affords the accused another “form of pretrial screening of the charges” so that the accused is “informed of the nature and cause of accusations against him.”[35] In essence, the Texas constitutional right to a grand jury is a protective mechanism for ensuring that the accused’s Fourteenth Amendment right to due process of law in felony criminal proceedings is not abridged.

To understand the purpose of the grand jury, one should understand the tool used by the grand jury to conduct its business – the indictment. The indictment is the state’s primary pleading instrument in a felony criminal action. The Texas Constitution defines “indictment” as a written instrument presented to a court by a grand jury charging a person with the commission of an offense.[36] Similarly, the Texas Code of Criminal Procedure codifies the definition of “indictment” as the written statement of a grand jury accusing a person therein named of some violation of the law.[37] The provision of the Code defining “indictment” gives statutory substance to the right conferred in the Texas Constitution to have a grand jury screening before a person may be held to answer for a criminal offense of the magnitude of felony. The indictment serves two purposes. First, it provides notice of the offense to allow a defendant to prepare a defense.[38] Second, an indictment serves a jurisdictional function.[39] Under Article V, §12 of the Texas Constitution, the trial court is vested with jurisdiction to hear the cause when the face of the indictment charges a person with the commission of an offense and is presented to the trial court.[40] Thus, the indictment is essential to vest the trial court with jurisdiction and neither a defect of substance nor form contained within the indictment will invalidate the trial court’s jurisdiction.[41] However, defects of substance or form may be grounds for challenging the indictment for a failure to provide the defendant with adequate notice of the offenses brought against him.[42]

At the most basic level, the grand jury’s sole function is to True Bill or No Bill indictments; their duty is to “inquire into all offenses liable to indictment.”[43] This is really a function of due process because this decision 1) protects the accused against unjust prosecution without sufficient cause; 2) ensures that the accused is put on notice of the nature and cause of the accusations against him so he or she can properly prepare is defense; and 3) invokes the trial court’s jurisdiction to hear the case.[44] Thus, the grand jury uses the indictment as a tool to carry out due process of law. These due process protections occur simultaneously upon the return, or True Bill, of an indictment.

In a typical grand jury proceeding, evidence is presented by a prosecutor for the grand jury to determine whether there is sufficient cause for the government to proceed with prosecution. The standard for sufficient cause to prosecute in Texas, and many other jurisdictions, is probable cause. If the grand jury finds probable cause it True Bills the indictment. Conversely, if the grand jury determines the evidence presented is insufficient to rise to a level of probable cause, it No Bills the indictment; meaning that the prosecutor may not proceed with prosecution on the evidence presented. When the grand jury True Bills the indictment it is essentially asserting that there is sufficient cause to believe that the accused has committed a certain crime, and that the state is justified in proceeding with prosecution. Additionally, the grand jury presents the physical indictment to the court to invoke jurisdiction and put the accused on formal notice of specific accusations so he or she can properly prepare a defense.  Consequently, the grand jury institution is the procedural manifestation of substantive requirements of due process of law.

In this capacity to make decisions on indictments, the purpose of the grand jury is often considered a “buffer between the government and the citizenry.”[45] For discussion purposes, we will label this the “screening function.” The screening function can be thought to include the responsibility of reviewing and investigating cases and deciding whether to authorize the state’s prosecution of the accused. To reiterate, the grand jury proceeding is an ex parte hearing, one in which only the prosecution presents evidence, to determine if the government’s evidence against the accused rises to the level of probable cause. The act of investigating and reviewing, or screening, cases presented by the state serves as the last “check” against prosecutorial forces before a case is formally charged or dismissed, i.e. “True Billed or No Billed”.[46] Consider that only the prosecutor has contact with the grand jury over a sustained period of time and that the law imposes a certain level of secrecy over the proceedings. It thus becomes clear that the screening function could, and has in some cases, become a prosecutorial function, where the grand jury serves as the prosecutor’s True Bill “rubber stamp”.[47] Thus, it is paramount to the integrity of pre-indictment due process, i.e., the screening function, that the accused’s right to a fair and impartial grand jury is balanced against the need for grand juror secrecy. Based on this conclusion, how can Texas law provide grand juries the level of secrecy necessary to freely conduct their investigations, while maintaining the integrity of the screening function to operate as a “buffer between the government and the citizenry?”[48] Answering this question requires a look into the policy rationale of grand jury secrecy, current Texas secrecy laws, and the historical areas of secrecy abuse.

III. The Development of Grand Jury Secrecy

Before delving into the policy rationale for grand jury secrecy, it should be noted that grand jury secrecy comes in two different forms: Secrecy regarding the “matters coming before the grand jury” and secrecy regarding the composition of the grand jury. Chapters 19 and 20 of the Texas Code of Criminal Procedure draw this distinction clearly. Secrecy regarding matters coming before the grand jury will be discussed, but it is not the leading issue here. The existence of secrecy in this area is well established and not questioned in this paper. As discussed in the next section, to permit disclosure of matters occurring before the grand jury to be made public record would frustrate the purpose of secrecy in the first place. Rather, this paper calls into question the Texas procedure for assembling a grand jury and the secrecy of information regarding the composition of the grand jury. Potential for reform in this area will be addressed in detail in Section IV.

1. Underlying Policy at Common Law

Grand jury secrecy has predated the ratification of the Bill of Rights and even the establishment of the American colonies.[49] The policy rationale underlying grand jury secrecy has remained essentially the same since it was first recognized in England at the Earl of Shaftesbury Trial in 1681.[50] In 16^th century England, when the grand jury investigated cases on its own initiative, secrecy was a means to prevent the Crown from interfering in these cases.[51] This English common law principle of secrecy was brought to America and adopted to prevent government oppression by means of vindictive prosecutions and to protect the general rights of the accused.[52]  When the government does not know the matters before the grand jury or the personal information about the jurors, it cannot interfere with the proceedings. Another reason for grand jury secrecy is protection of the state’s theory of the case against the defendant. Judge Learned Hand, in United States v. Garson, claimed that the state would be put at a severe disadvantage if the defense could be present or have access to the grand jury proceeding. He wrote:

“While the prosecution is held rigidly to the charge, [the defendant] need not disclose the barest outline of his defense. He is immune from question or comment on his silence; he cannot be convicted when there is the least fair doubt in the minds of any one of the twelve. Why in addition he should in advance have the whole evidence against him to pick over at his leisure, and make his defense, fairly or foully, I have never been able to see.”[53]

 

In other words, Judge Hand thought that the accused had sufficient protections in criminal cases, and by allowing the accused access to the grand jury proceedings the government would not have a fair opportunity to build its case. The reasoning behind Judge Hand’s theory may have been somewhat eroded over time due to increased discovery rights for the defendant in seminal rulings such as Brady v. Maryland, as well as statutes such as Texas’ Michael Morton Act.[54] The increased discovery rights have likely given defendants the ability to determine the state’s theory of the case sooner and become better equipped with a defense since the state is required to turn over more evidence upon request of the defendant.[55]

The Court in United States v. Amazon Industrial Chemical Corp. provides an excellent summary of the policy rationale underlying the requirement of secrecy: (1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before the grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect the innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.[56] Looking closer at these reasons for secrecy supports the contention that secrecy comes in two different varieties. “Preventing escape of the accused, witness tampering, disclosure of investigations that result in No Bills, and encouraging freedom of information” all support the need for secrecy regarding matters before the court, the subject of the next section of the paper. On the other hand, “insuring utmost freedom to the grand jury in its deliberations and preventing persons subject to indictment or their friends from importuning the grand jurors” supports secrecy regarding the composition of the grand jury, the subsequent section of this paper.[57]

1. Secrecy of the “Matters Occurring Before the Grand Jury”

In 1946, Congress passed Rule 6 of the Federal Rules of Criminal Procedure, which codified the law of grand jury secrecy in two parts – Rule 6(d) and 6(e). Rule 6(d) governs who can be present during a grand jury proceeding: “[grand jurors], attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.”[58] Rule 6(d) permits only grand jurors and an interpreter for the hearing-impaired or speech-impaired to be present during deliberations and voting.[59] Subject to a few exceptions, Rule 6(e) states that “matters occurring before the grand jury” are secret. University of Houston Law Professor and former Assistant United States Attorney, Ryan McConnell, provides a helpful rule of thumb for determining what is a “matter occurring before the grand jury.” He outlines such matters accordingly:

(1) any witness testimony in grand jury proceedings and (2) documents or other items created specifically for the grand jury.  Typically 6(e) does not apply to documents created for purposes other than the grand jury such as bank or phone records created outside of the grand jury process, but obtained with a grand jury subpoena.[60]

 

Rule 6(e) applies to grand jurors, interpreters, court reporters, stenographers, and attorneys for the government.[61] These persons must not disclose a matter occurring before the grand jury. However, there are recognized exceptions when the necessity of disclosure exceeds the need for secrecy. Summarily, a matter occurring before the grand jury may be disclosed if the disclosure is: (1) made to a government attorney or personnel for use in the performance of their duties;[62] (2) made to another federal grand jury; (3) foreign intelligence information disclosed to the appropriate federal agency; (4) witness testimony from a witness who will testify at a later hearing or trial;[63] or (5) ordered by the court after a showing of particularized need.[64]

The Texas version of Rule 6 is Article 20.02 in the Texas Code of Criminal Procedure. Article 20.02(a) requires grand jury proceedings to be secret.[65] The Texas statute differs from Rule 6(e) because it is both broader and stricter than Rule 6(e). Rule 6(e) prohibits disclosure of “matters occurring before the grand jury” while 20.02(b) prohibits disclosure of “…anything transpiring before the grand jury, regardless of whether the thing transpiring is record[ed].”[66] Article 20.02(b) goes a step further than Rule 6(e) and expressly states that punishment for unauthorized disclosure is “a $500 fine for contempt of the court, imprisonment not to exceed 30 days, or both.” Additionally, the statute expressly applies to bailiffs, where Rule 6(e) does not make any mention of bailiff’s regarding secrecy.

Regarding the exceptions to secrecy, Article 20.02(c) disclosure is more limited, thus stricter, than provided by Rule 6(e). Under Article 20.02(c), only the prosecuting attorney may make disclosures to another grand jury, law enforcement agency, or another prosecuting attorney as necessary to assist the attorney in the performance of the attorney’s duties.[67] Rule 6(e) does not expressly require the disclosure to be made only by the state’s attorney. The provision for court ordered disclosure of otherwise secret matter occurring before the grand jury requires the defendant to petition the court and a showing of particularized need.[68]

1. Secrecy Regarding the Composition of the Grand Jury

The second type of grand jury secrecy – secrecy in the composition of the grand jury – can itself be subdivided into two parts: the procedures for organizing and impaneling the grand jury and the non-disclosure of personal information about the grand jurors. Secrecy in these areas is problematic because it prevents anyone from knowing    whether a particular grand jury actually represents a diverse cross-section of the community. In examining the issue further, several questionable sub-issues become apparent. With potential for abuse abound, the following are a few important sub-issues to keep in mind while reflecting on the balance between secrecy and the accused’s rights:

1. Is the current method of grand jury selection subject to abuse?
2. Should a panel of potential grand jurors be chosen individually or by random? Also, are the sources of grand juror candidates sufficiently broad to achieve diversity?
3. If discriminatory practices are used in selection, what procedures are available for either the public or the defendant to challenge the grand jury? Are these procedures effective?
4. Under the current system in place, does the public have access to any information about the composition of grand juries to assist them in making a valid legal challenge?
5. If grand juror information should be disclosed, what information should be

 

disclosed? Who should be monitoring this information?

 

1. Current Procedure for Impaneling Texas Grand Juries
2. Methods for Organizing and Impaneling

The legislature is prohibited from passing any local or special law authorizing the summoning or impaneling of grand juries.[69] Only federal district courts and state criminal district courts have the power to organize grand juries – county courts are not authorized to impanel grand juries or receive indictments.[70] In other words, only courts with jurisdiction to hear felony cases based on the constitutional guarantee of the return of grand jury indictments have the authority to impanel a grand jury. “The power to constitute a grand jury is an inherent attribute of district courts and may be exercised without express legislative authorization.”[71] Also, “there is no constitutional or statutory provision that prevents the impaneling of a grand jury in one district court while another grand jury is serving in a different district court in the same county.”[72] In Harris County, there are five grand juries in session at any given time. Moreover, a district court is authorized to impanel more than one grand jury during a regular term of court.[73] The Texas Constitution requires a grand jury in felony cases, but district court judges have complete discretion in summoning and impaneling grand juries.[74]

The most widely used method for impaneling a grand jury is similar to that of selecting a petit jury for trial. In federal courts the grand jury selection process is based on a central policy objective: that the grand and petit juries are selected, at random, from a fair cross-section of the community in the district where the court convenes.[75] Each federal district court must create and implement a plan for the random selection of grand jurors.[76] A panel consisting of the circuit’s judicial counsel and either the chief judge or a district court judge designated by the same chief judge must approve the plan.[77] The plan must specify whether a jury commission or the clerk of the court will manage the random selection process.[78] The jury commission at the federal level is different than the jury commission in the “key-man” system to be discussed below, because the judge appoints a main jury commissioner to work alongside the court clerk, and this commissioner may not be of the same political party as the clerk. Additionally, the plan must specify the sources of the names to be randomly drawn, typically registered voters or citizen’s that actually voted.[79] The names are placed on a jury wheel and the clerk or jury commissioner will randomly select the names. Those people are then required to complete a juror qualification form to determine their eligibility to serve. The formality and preparation of such a plan and the emphasis on random selection ensures that the accused has their case heard by a “fair cross-section of the community” by guaranteeing that jurors are not discriminated against on the basis of race, color, religion, sex, national origin, or economic status.[80]

The glaring difference between the federal and Texas model is the preference for the use of grand jury commissioners. Chapter 19 of the Code of Criminal Procedure only references the traditional random selection process as a possible alternative to the key-man system. Additionally, there is no requirement that the court develop a formal selection plan and have that plan approved by a district court judge. Article 19.01(b), states that “[i]n lieu of the selection of prospective jurors, the district court judge [summons] 20 – 125 prospective grand jurors in the same manner as for the selection and summons of panels for the trial of civil cases in the district courts.”[81] Civil jury selection requires the use of a random selection wheel with the source of the names being all persons registered to vote and all people who hold a valid drivers license and are not disqualified from jury service.[82] However, Article 19.01(b) does not require the use of random selection; the remainder of Article 19 describes in detail the procedures for grand jury selection known as the “key-man system.”[83]

1. The Key-Man System: Secrecy in Grand Jury Organization

The second method, the “key-man system” as some call it, is the most controversial method for grand jury selection – this method was used to select the grand jury that indicted Alfred Brown. Texas and California are the only two states that still allow this method. Under the Texas’ “key-man” system for selecting grand juries, jury commissioners are appointed by a state district judge to select prospective jurors from different areas of the county, after which the district judge proceeds to test their qualifications by interrogation under oath.[84] There is no limitation on who is selected as the commissioner. The only requirements for grand jury commissioners are that they are intelligent citizens of the county and able to read and write the English language.[85] They must also be qualified jurors in the county, have no suit in the court which requires intervention of a jury, and they must be residents of different areas of the county, i.e., a broad cross-section of the community.[86] Finally, grand jury commissions and shall not have served more than once in any 12-month period.[87] After the commissioners are sworn in by the judge, they retire to a secret location to select between 15 – 40 persons from the county to be summoned for potential service.[88] The commissioners may not leave the room during the selection of the potential jurors. These prospective grand jurors may be volunteers, persons selected by the commissioners, or summoned by the court; under the key-man system, there is no requirement that the source and selection of grand jurors be random.

The jury commissioners’ discretion during selection of potential jurors is limited only by statutorily defined qualifications of the grand jurors and a requirement that a “broad cross-section of the population of the county, considering factors of race, sex, and age” be selected.[89] Article 19.08 prescribes the following qualifications: A grand juror must be a citizen of Texas and of the county, be a qualified voter in the county, be “of sound mind and good moral character,” be literate, have no prior felony conviction, and be under no pending indictment ‘or other legal accusation for theft or of any felony.[90]

The names of the selected grand jurors are memorialized in writing and sealed in an envelope certifying their selection by the grand jury commissioners. The commissioners write their names on the seal of the envelope and deliver it to the district judge in open court.[91] The judge delivers the unopened envelope to the clerk or deputies and administers oath to the clerk or deputies requiring them not to open the sealed envelope until the time prescribed by law. [92]  The oath also requires that the clerk and deputy will have no contact with any grand juror concerning any case or proceeding that may come before the juror during a session.[93] The judge selects the date on which the grand jury shall be impaneled and notifies the clerk of such date; and within thirty days of such day, and not before, the clerk opens the envelope and delivers the list to the sheriff to proceed with summons.[94] At this point, neither a judicial officer nor any court personnel knows any demographic information about the people on the list. When a panel of at least fourteen is in attendance, the court administers an oath to the panel and interrogates each juror individually with regard to their qualifications.[95] Article 19.23 provides a list of express questions to be asked to grand jurors, which basically tracks the qualifying language of Article 19.08.[96] If a juror meets the qualifications and is determined to be of sound mind and good moral character, then that person is accepted as qualified. Any person who is not qualified will be excused from service, and even those who are qualified may be excused from service for certain reasons listed under Article 19.25.[97] With an understanding for how the selection processes operate under the law, the potential for abuse of secrecy in the key-man system and arguments for its change will be discussed in detail.

1. Discrimination and the Key-Man System

Discrimination can be defined as “the practice of unfairly treating a person or group of people differently from other people or groups of people.”[98] The United States Supreme Court has long recognized that “it is a denial of the equal protection of the laws to try a defendant of a particular race or color under an indictment issued by a grand jury . . . from which all persons of his race or color have, solely because of that race or color, been excluded by the State.”[99] Common forms of alleged discrimination when the key-man system has been used in Texas include race,[100] socio-economic status,[101] gender,[102] and age.[103]

It was in Smith v. State of Texas, that the Court first determined that the key-man system is susceptible to such abuse.[104] In Smith, only five African-Americans had served on Harris County grand juries over an 8-year period.[105] Furthermore, in the three years preceding the petitioner’s indictment, there were no African-American grand jurors in Harris County.[106] The Court specifically addressed the potential for abuse with the key-man system, so it is likely that this system was used to select many of the grand juries during this 8-year period. The court found that the Texas statutory scheme for the key-man system is not in itself unfair; “it is capable of being carried out with no racial discrimination whatsoever.”[107] The State unsuccessfully rebutted the African-American defendant’s Equal Protection Clause violation with testimony from two grand jury commissioners, of the 92 commissioners appointed during the 8-year period, who “categorically denied intentionally, arbitrarily or systematically discriminated against [African-American] jurors.”[108] The Court held that key-man system is susceptible to abuse by reason of the wide discretion permissible in the various steps of the plan.[109] Although the system is capable of being carried out without discrimination, it is equally capable of being applied in such a manner as to exclude any group thought by the law’s administrators to be undesirable.[110] The Court thus concluded that “from the record before us the conclusion is inescapable that it is the latter application that has prevailed in Harris County.”[111] Rejecting the two grand juror’s testimony, which amounted to a “mistake of law” rebuttal, the Court held that regardless of whether the discrimination of grand jurors occurred “ingeniously or ingenuously” a Fourteenth Amendment equal protection violation had occurred, and the conviction must be reversed.[112]

In Castaneda v. Partida, the Supreme Court provided a test to determine whether an equal protection violation has occurred in the context of grand jury selection.[113] The Fifth Circuit Court of Appeals granted Rodrigo Partida’s (“Respondent”) motion for a new trial on the grounds of discrimination in the selection of the grand jury that reviewed his case.[114] Subsequently, the Supreme Court granted the State of Texas’ petition for writ of certiorari to consider the merits of the Respondent’s claim that Mexican-Americans were discriminated against in the selection of the grand jury that indicted him.[115] Citing precedent, the Court ruled that substantial underrepresentation in grand jury service is sufficient to make a prima facie case for a denial of equal protection under the laws – absolute exclusion is not a requirement for a grand jury discrimination claim.[116]

According to the majority opinion, to show an equal protection violation has occurred in the context of grand jury selection, “the defendant must show that the [selection] procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs.”[117] This showing can be made by satisfying a three-prong test. First, the defendant must establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied.[118] Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. Finally, as noted above, a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.[119] Once the defendant has shown substantial underrepresentation of his group, he has made out a prima facie case of discriminatory purpose, and the burden then shifts to the State to rebut that case.[120]

The Respondent made out a prima facie claim of discrimination supported by evidence that 79.1% of Bexar County’s population was Mexican-American while year average indicated that Mexican-Americans represented only 39% of those selected as grand jurors in the county.[121] The State failed to rebut this evidence, and the over 40% disparity in grand jury representation and actual population was sufficiently substantial underrepresentation.[122] Moreover, the presumption of discrimination was supported by previous Supreme Court cases holding that the “key-man” system is not unconstitutional, but it is susceptible to abuse resulting in the discrimination against particular groups.[123] The Court affirmed the Fifth Circuit’s ruling granting the motion for new trial.

Although 37 years passed between the Supreme Court’s rulings in Smith and Castaneda, the Supreme Court’s assessment of the Texas grand jury procedure remained the same: the key-man system is not unconstitutional, but it carries with it the inherent potential for of abuse by means of discrimination and favoritism. Discrimination comes in different forms, but it is typically a reflection of the discriminator’s self-interests manifesting in the choice to treat a person or group of people differently. Naturally, any time a person has the power to select members to a group their selection brings with it every conscious or unconscious bias in the justification for their decisions. Even children naturally choose the best person to help the team win. The same principle underlies the key-man system: notwithstanding the Article 19.01(a) requirements, the judge may select anyone as commissioners — friends, relatives, volunteers, or colleagues. In turn, the commissioners have the legal authority to do exactly the same. [124] “The commissioners’ attitudes, beliefs and political ideology have an influence on which individuals are considered for the grand jury and ultimately, how a grand jury decides an indictment.” Perhaps this inherent possibility for nepotism underlying Texas grand juries explains why the key-man system has been mockingly referred to as the “pick-a-pal” system.[125]

Texas should abolish the key-man system and replace it with a system that is not susceptible to abuse. The key-man system is a circuitous process when compared to the federal system. For example, the federal system does not require the judge to select a commissioner to act as a “middleman” between the court and the panel of grand jurors. Simply using a jury wheel based on random selection achieves the same goal as deliberate selection used by commissioners in the key-man system without the potential for discrimination in selection – whether that discrimination is “ingenious or ingenuous.”[126] To “exclude from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.”[127] Laws pertaining to federal judicial procedure assert:

“It is the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross-section of the community in the district or division wherein the court convenes. It is further the policy of the United States that all citizens shall have the opportunity to be considered for service on grand and petit juries in the district courts of the United States, and shall have an obligation to serve as jurors when summoned for that purpose.”[128]

 

Limitations on the selection and source of grand jurors, so the criminally accused receives a fair review of their case, does not require reinventing the wheel – literally and figuratively speaking, the federal court system, for decades, has required the use of a master jury wheel based on random selection – Texas should follow suit. In federal courts, the sources of the names are limited to voter registration and actual voters in the district where the court has jurisdiction. This would prevent judges and jury commissioners from “picking a pal,” thus, furthering the policy against discrimination and reducing the number of post-conviction issues for appeal. The key-man system allows grand juries to be assembled based on personal relationships between the judge, the jury commissioners, and the panel of jurors selected.

It has been said that random selection methods similar to that used in the federal system would probably avoid most of the potential for abuse found in the key-man system.[129] Randomization eliminates discrimination completely with regards to organizing a panel of prospective grand jurors, because random selection casts a broader net into the community. Conversely, the key-man system permits judges and commissioners to select jurors from their peer group and from people who have volunteered, which is severely limited relative to the net cast by the jury wheel method. The jury wheel method naturally results in the selection of a broad cross-section of the community where the key-man system leaves this requirement in the fate of the commissioners chosen by the judge. Also, the federal system requires mandatory service unless a potential juror is deemed unqualified or has a valid excuse. In Alfred Brown’s case the grand jury was composed of people who were of a higher socio-economic status with differing values than the defendant. Some of the grand jurors had served multiple times, were volunteers, were public servants including police officers and teachers, and some of them seemed to have agendas. As seen from the intense interrogation of Erica Dockery, the grand jury, especially the foreman had an agenda to return an indictment. This grand jury was selected based on a system that is susceptible to abuse and this grand jury turned out to behave abusively itself.

As a collateral matter, the key-man system fosters a prosecutorial practice known as “grand jury shopping.” Grand jury shopping occurs when prosecutors, at their discretion, choose which grand jury will review a certain type of case based on number of true-billed indictments returned by that a grand jury on that particular type of case. For example, in Harris County there are five grand juries in session at any given time. Although prosecutors do not know the composition of all five grand juries due to secrecy laws, they do know which grand jury is more or less likely to true bill an indictment in a certain type of case based on the number of indictments previously returned by that grand jury. In Alfred Brown’s case, the prosecutor presented the murder of a police officer case to a grand jury whose foreman was a retired police officer. If discrimination in the selection of the grand jury goes unnoticed or unchallenged, then every case heard by that grand jury potentially violates the accused’s constitutional rights. The fact that the prosecutor chooses to present a case to a certain grand jury over another is evidence of the prosecutor’s preference of a particular outcome, i.e. a true-billed indictment. This claim is still supported even if the prosecutor is unaware that discriminatory practices were used in the grand jury’s empanelment, because the grand jury’s record of true bills in a certain type of case is indicative of the grand jury’s biases when that certain type of case is presented. In a case like Alfred Brown’s, the judge, the commissioners, the grand jurors, and the prosecutors were all able to benefit from the key-man system. The judge had an easier time developing a grand juror list with the help of commissioners, the grand juror’s were able to act like prosecutors and police officers for a day, and the prosecutor’s were able to turn Brown’s significant other into their star witness by leveraging a perjury charge. The only people that did not benefit in that case was Alfred Brown and his significant other.

Texas has been loyal to the key-man system, but the system is inferior to the federal system because it serves exactly the same objective as the federal system but has the potential to be abused due to the wide, unchecked discretion vested in judges and grand jury commissioners. The inferiority of the key-man system is further evidenced by the fact that 48 states have chosen solely to utilize the random selection method.

Another 37 years have passed since the Supreme Court affirmed the key-man system’s susceptibility to abuse in Castaneda, and yet once again no changes have occurred in the Texas process. Today, Alfred Brown’s case puts the key-man system back in the sights of the media for demonstrating that injustice can still occur when a biased grand jury is impaneled.[130]

1. Challenging the Array for Discrimination

When fourteen qualified jurors are present, the court shall proceed to impanel the grand jury, unless a challenge to its composition is made. If the accused, or anyone for that matter, believes that discriminatory practices[131] were used in the selection of the grand jury, that person may challenge the composition of the grand jury.[132] Under Article 19.27, any person may challenge the array of jurors or any person presented as a grand juror before the grand jury has been impaneled.[133] In no other way shall objections to the qualifications and legality of the grand jury be heard.[134] Any person confined in jail in the country shall upon his request be brought into court to make such a challenge.[135] Challenges to the array must be in writing, and there are only two causes for this type of challenge: (1) the grand jurors are not selected by a method provided in Article 19.01(b) or by the jury commissioners; (2) in case of grand jurors summoned by order of the court, that the officer who summoned them had acted corruptly in summoning any one or more of them.[136] Challenges to a specific juror may be made in writing or orally, and there are only two causes for challenge: (1) the juror is not qualified under Article 19; or (2) he is the prosecutor upon an accusation against the person making the challenge. Upon challenge of either the array or person, the court shall hear proof and decide whether the challenge is well-founded or not.

The Court of Criminal Appeals interprets Article 19.27 to mean that a challenge to the array must be made at the first possible opportunity – which is usually when the grand jury is impaneled.[137] “Making a challenge at this early date is sometimes impossible as when the offense occurs after the grand jury is impaneled.”[138] In such a scenario, the array can be attacked in a motion to quash the indictment before trial commences.[139] However, if the defendant has an opportunity to challenge the array when it is impaneled and does not do so, he or she may not challenge it at a later date.[140] Essentially, the accused that fails to challenge the grand jury at the time of impanelment “waives” the right to so challenge by motion to quash the indictment.[141] Since the opportunity to challenge the array disappears after the jury has been impaneled, making a timely challenge is very important not only to receive a potentially favorable ruling but also to preserve the ruling for appeal. In Valadez v. State, the Court of Criminal Appeals addressed the issue of making a timely challenge to alleged discriminatory practices when the key-man system was used to select the grand jury.[142] After the defendant was convicted he filed motion to quash the indictment on the grounds that Latin American’s were systematically excluded from the grand jury.[143] The district court denied the motion to quash for failure to timely challenge the array under Article 19.27.[144] On appeal, the Court of Criminal Appeals affirmed the district court’s ruling, holding that “where defendant was afforded reasonable opportunity to make objections to manner of selecting, drawing and impaneling the grand jury, but failed to timely object to the composition of the grand jury as required by state law, refusal of motion to quash indictment was not error.”[145] Although the defendant may have had a legitimate discrimination claim, the time constraints imposed on grand jury challenges prevented the claim from being heard by the court.

This strict time limitation for making a challenge is problematic because the public, including the accused pre-indictment, are only put on notice of the proceedings by contacting the courts or searching for the grand jury schedule via the Internet.[146]  Arguably, although “any person” may challenge the array of a grand jury, it is unlikely in practice that a “layperson” would have the knowledge or fortitude to search for a grand jury schedule, be present at the proceeding, and make a valid legal challenge before a district court about the array of the grand jury panel.[147] In practice, the judge, court staff, and prosecutor are typically the only parties present at the impanelment, although the proceeding is legally open to the public.[148] Moreover, since the individual grand jurors’ information has been kept secret, no one has had an opportunity to determine whether the commissioner’s have “acted corruptly,” e.g., using discriminatory practices in their selection. Even assuming that the accused made a valid challenge to the array, the defendant has no guarantee that the particular grand jury he or she challenged will be the jury that reviews their case. For example, in Harris County, there are four grand juries in session at any given time.[149]

It is a constitutional imperative that the jury, grand or trial, fairly represent the community.[150] The codal provision, Article 19.27, was intended to limit the questioning and interference of grand juries[151] – but what about the rights of the accused? By limiting the remedy and procedural safeguards, i.e., the opportunity to make a challenge, to ensure that the grand jury does fairly represent the community, the accused is disadvantaged with regards to their ability to protect his or her constitutional right. The secrecy of information, lack of public awareness about grand jury proceedings, and precedent requiring strict adherence to pre-impanelment challenges make it possible for discriminatory practices under the key-man system to occur at the detriment of the accused and without any ramifications to the state or jury commissioners; similar to the outcome in Valadez.[152] Therefore, secrecy of grand juror information and the actual selection of grand jurors affect the accused’s ability to prepare a valid challenge and prevent discrimination when the challenge is “waived.” To ensure that the defendant’s right to a fair and impartial grand jury is not violated, the opportunity to challenge the array of the grand jury could be extended through the end of the trial along with releasing grand juror demographical information pre-impanelment for review. Also, putting the accused on formal notice of the selection proceedings and increasing public awareness about their right to challenge to the composition of grand juries could reduce the likelihood waiving the challenge. In the following sections, the discussion will analyze how secrecy in the key-man system and grand juror’s personal information creates the potential for discrimination, thereby, violating the defendant’s Fourteenth Amendment rights to due process and equal protection under the laws.

1. Secrecy Prevents the Exposure of Discrimination in the Key-Man System

When an inherently biased system is used, i.e., the key-man system, discrimination occurs in the actual selection of grand jurors. If no one is present at the grand jury proceeding to challenge the panel of grand jurors, the discrimination may often go unnoticed. After the grand jury is impaneled, the current grand jury secrecy laws require non-disclosure of grand juror identities, making it impossible for the public to monitor the demographical composition of the people impaneled.

Under Article 19.42 of the Texas Code of Criminal Procedure, any personal 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 is confidential and may not be disclosed by the court, court personnel, or prosecuting attorney.[153] As an exception to confidential nondisclosure, “the court shall permit disclosure of the information sought to a party to the proceeding on a showing of good cause.”[154] The plain language of Article 19.42 makes the statute applicable to information of only those grand jurors who have been sworn and impaneled. In Lisa Falkenberg’s newspaper articles chronicling the affairs of the grand jury that heard Alfred Brown’s case, she suggests that the names of the grand jurors are the “only thing [the public] has ensure judges are impaneling fair and diverse grand juries,” relying on a Texas Attorney General opinion.[155] The rationale for releasing grand juror names is that the grand jury organization proceeding is open to the public according to Article 1.24.[156] This is also illustrated in Chapter 19, because “anyone may challenge the array of jurors or any person presented as a grand juror.”[157] As stated, the court will test each individual’s qualifications in open court. Therefore, as a practical matter, the identities of the grand jurors on the grand jury list will be made public during the grand jury organization proceeding. According to an Attorney General opinion, a clerk or a judge has no duty to keep a grand jury list confidential after the clerk has opened the envelope containing the names of prospective grand jurors.[158] As a matter of law, the identities of the entire panel could be public information after the clerk has opened the envelope and the organization proceeding has commenced. This is a step in the right direction, because at least the grand juror’s names would be available. However, the progress is easily stifled at the judge’s discretion. For example, in Harris County, all twenty-two District Court judges regularly exercise their authority to indefinitely seal the grand jury lists.[159] In his opinion, Texas’ Attorney General did not address the question of whether judges have the authority to seal the lists, but it seems that the law would not allow the exercise of such discretion because the proceeding is open to the public. In fact, the proceeding is a public matter, because “the public should be able to see the panel, assess their qualifications, and point out possible conflicts.”[160] Assuming, arguendo, that District Court Judges have the authority to seal grand juror names despite Article 19.42, the result is that when that authority is exercised, as it often is in Harris County, the court is literally devoid of a level of accountability to the public about whether the grand jury selection process was abused leading to a grand jury panel with underrepresented groups.

Releasing grand juror names may certainly be helpful in monitoring the composition of grand juries to prevent discrimination; however, the argument for release of this information does not account for the policy rationale served by grand jury secrecy: “insuring utmost freedom to the grand jury in its deliberations and preventing persons subject to indictment or their friends from importuning the grand jurors.”[161] In fact, Harris County District Court Judges expressed their concerns for grand juror safety and justified the sua sponte motions to seal the grand jurors personal information for fear that the grand jurors safety may be compromised.[162] Harris County Administrative Judge Susan Brown says that judges have a responsibility to protect grand jurors unless there is a “good reason” to release their names.[163] The judges’ justification for secrecy of identity is based on well-established precedent as reflected in Amazon Industrial Corp.[164] However, such justification should be limited to identity alone. Filing of such a motion reflects and perpetuates a mindset of utmost secrecy where secrecy may be unnecessary – demographic information. While secrecy of grand juror identity is justified, secrecy in demographic information supports none of the policy rationales offered in the precedent discussed in this paper.[165] Notably, at least one Harris County District Court judge has was not even aware that he was signing these motions.[166]

Stated differently, the current system is based on non-disclosure and gives total deference to secrecy at the expense of preventing the public from monitoring who is being put on these grand juries. Falkenberg would reverse this policy and require disclosure of grand juror names at the expense of providing any secrecy to grand jurors. Falkenberg’s proposal has good intentions, but misses the mark by contradicting centuries of fundamental precedent regarding grand jury secrecy. A better alternative to full disclosure would be to disclose only that personal information which could form the basis of a due process or equal protection violation, i.e., characteristics subject to discriminatory treatment. More specifically, the court should be required to disclose each grand juror’s age, gender, race, occupation, and the number of times a person has served on a grand jury. Hypothetically, the monitoring public could use a grand jurors name to learn all of this information about a grand juror. However, making public the identities of those who serve on the grand jury has the untoward result of making grand jurors feel vulnerable about their safety and does not directly provide the public with the information it needs to assess the process. If the goal is to ensure that a grand jury is fair and unbiased and represents a broad cross-section of the community, a name is not directly useful or determinative of that goal. It is not the actual name of a grand juror that is the basis of a grand jury discrimination claim; rather, it is the demographic information regarding that particular person that raises questions about the grand jury’s impartiality. Therefore, the balance between grand jury secrecy and providing the public with information to monitor whether a grand jury is, in fact, fair and unbiased representation of a broad cross-section of the community is better struck by releasing all of the grand juror’s demographical information, except for the name. By releasing only demographic information, judges are protecting grand jurors from possible harassment by the accused and guard against defense lawyer’s who might attempt to advocate their positions – which is the policy rationale for grand jury secrecy. Simultaneously, judges would give the public relevant information that can be used to determine whether the composition of a particular grand jury represents a broad cross-section of the community. Currently, only judges can ensure that the jury commissioners have selected a fair cross-section of the community save the limited opportunity for the public to challenge at the array at the selection proceeding. Again, this is because none of the information is available for disclosure; including disclosure to defense lawyers, prosecutors, and the public in general.

Transparency and disclosure of grand juror personal information does not require a leap of faith that would put grand jurors at risk of harm by vengeful defendants that found their name. This proposal does not even suggest that the grand juror’s names be released, rather, the race, age, gender, occupation, part of the county, and the number of times serving as a grand juror. This demographic information can be collected, organized, and distributed throughout the county so that courts are held accountable for their grand juries. The information can be analyzed over periods of time and provide a benchmark to determine whether a grand jury represents a fair cross-section of the community. Additionally, the information could be used by the defendant to challenge a grand jury panel early on in the process, thereby, saving precious judicial resources and maximizing efficiency.

Conclusion

The accused’s constitutional rights to due process and equal protection of the laws are in jeopardy almost immediately after a Texas prosecutor decides to present a case to the grand jury for indictment because of the current grand jury secrecy laws. There is no default balance between grand jury secrecy and the accused’s constitutional rights: Grand jury secrecy requirements, including both the method of selection and the jurors’ personal information, are widely respected, while, the accused’s constitutional rights are given little thought. This conclusion is drawn from the premise that the preferred method of grand jury selection in Texas is the key-man system. As discussed, the key-man system is inherently subject to abuse by district court judges and the “pals they pick” to assist them with the process. Therefore, the balance between policy and rights in each individual case lies at the discretion of the district court judge who determines how the grand jury will be selected. When the judge or the judge’s commissioners discriminate in their selection of grand jurors the accused’s rights are violated. It is obviously unfair to say that every grand jury is selected by using discriminatory practices, but there is opportunity for improvement from the current system. When all of the policy rationales for secrecy can be achieved with a method that is not susceptible to abuse, i.e. random selection, it makes little sense for Texas courts to continue with the key-man system.

Regarding remedies, the accused and the general public have the right to challenge the composition of the grand jury at the selection proceeding. However, the opportunity to challenge a grand jury is limited by strict time constraints. The public’s right to challenge disappears after the jury has been impaneled, and the accused essentially waives the right to challenge unless he or she can show a good reason for being unable to appear at the selection proceeding. As a practical matter, neither the accused nor the public is given notice of when the selection proceedings are to occur save a schedule posted on a county website. Additionally, the county provides no instruction on the public’s right to challenge the composition of the grand jury, so a person with the fortitude to make such a challenge would not even know how to do so. This raises the question of whether the public’s right challenge is a mere legal fiction. Even assuming that a layperson would know how to properly challenge the composition of a grand jury, the secrecy laws prevent disclosure of information about the grand jurors so that the person would be able to adequately prepare to make a challenge.

Finally, secrecy of grand juror personal information serves a legitimate policy objective, e.g., protecting grand jurors from harassment and influence by vengeful defendants and the public. However, the level of secrecy required to achieve this objective is minimal compared to what is being done by district courts to withhold the information, e.g., filing motions of non-disclosure, which seal grand jury lists indefinitely. Arguments have been made that the right to access the grand jury list, which includes the grand juror’s name, home address, phone number, and demographical information, is guaranteed after the grand jury selection proceeding because the proceeding is open to the public. However, releasing all of the information contained in the grand jury lists would undermine the policy for which secrecy in personal information exists in the first instance. The balance between secrecy and protecting the accused’s rights is better served by requiring disclosure of that information relevant to the grounds on which a Fourteenth Amendment discrimination claim or other grand juror challenge could be brought. More specifically, the court should be required to disclose the age, gender, race, occupation, and the number of times a person has served on a grand jury. With this information available the public could monitor trends in the composition of grand juries within a county, make comparisons between these trends and grand juries in session, and draw conclusions about whether a particular grand jury fairly and accurately represents a broad-section of the community. This information would be helpful to judges, the attorneys, and perhaps most importantly – the accused.

The key-man selection system, opportunity to challenge a grand jury panel, and non-disclosure of personal information are all intertwined and secrecy in these areas can, and has, resulted in injustice against the accused. By reforming the current system to reflect the changes proposed in this discussion the likelihood of discrimination in the selection process is reduced and the accused is guaranteed that a grand jury of his or her peers reviews the case. Moreover, this reform enables the public to monitor the composition of grand juries while providing the accused ample opportunity and information to make a valid challenge against a grand jury. As shown, this reform gives more credence to the accused’s rights than the current system, while proportionately reducing secrecy to the level required to achieve the policy objectives on which the idea of secrecy was designed – the perfect balance.

The Texas Court of Criminal Appeals has recently reversed Alfred Brown’s conviction and it remains unsettled about whether the state will drop the charges against him. Alfred Brown cannot get back the last nine years of his life that he spent imprisoned, but something can be done to protect the accused from the outdated grand jury system moving forward. The system can be updated by requiring grand jury selection to be based on random selection; extending the opportunity to challenge the grand jury panel through the end of trial; and requiring limited disclosure of demographic information after the grand jury has been impaneled. The next Texas Legislative session begins on January 13, 2015, giving the legislature a prime opportunity to amend Chapter 19 of the Texas Criminal Code and implement a grand jury system that fosters the accused’s right to due process and equal protection of the laws; while simultaneously maintaining a certain level of secrecy on which centuries of grand jury jurisprudence was built.[167]

 

 

[1] Lisa Falkenberg, A disturbing glimpse into the shrouded world of the Texas grand jury system, Houston Chronicle, (July 17, 2014), http://www.houstonchronicle.com/news/columnists/falkenberg/article/A-disturbing-glimpse-into-the-shrouded-world-of-5626689.php.

[2] Falkenberg, supra note 1.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Lisa Falkenberg, Falkenberg: Mother of 3 pressured into changing her story, but jailed anyway, Houston Chronicle, (July 18, 2014), http://www.houstonchronicle.com/news/columnists/falkenberg/article/In-jail-mother-presented-with-two-options-5629355.php

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Lisa Falkenberg, Cop was foreman of grand jury in cop-killing, Houston Chronicle, (July 25, 2014), http://www.houstonchronicle.com/news/columnists/falkenberg/article/Cop-was-foreman-of-grand-jury-in-cop-killing-5645494.php

[13] Id.

[14] Id.

[15] See Neal v. State of Delaware, 103 U.S. 370 (1880).

[16] See Fed. R. Crim. P. 7(a)(1); accord Tex. Crim. Proc. Code Ann. art. 20.02 (Vernon).

[17] Tex. Crim. Proc. Code Ann. art. 20.02 (Vernon).

[18] Tex. Crim. Proc. Code Ann. art. 19.30 (Vernon).

[19] Gerald D. Robin, The Grand Jury Historical Roots, Contemporary Operation and Calls for Reform, at 2, last visited Nov. 13, 2014, https://kucampus.kaplan.edu/documentstore/docs09/pdf/picj/vol2/issue2/The_Grand_Jury.pdf.

[20] Administrative Office of the United States Courts, Handbook for Federal Grand Jurors, at 1, last visited November 13, 2014, available at http://www.ndd.uscourts.gov/jury/jury_handbook_grand_jurors.pdf.

[21] U.S. Const. amend. V.

[22] Fed. R. Crim. P. 7(a)(1).

[23] U.S. Const. amend. V.

[24] Encyclopedia Britannica, Fifth Amendment, (last updated Oct. 29, 2013), http://www.britannica.com/EBchecked/topic/206470/Fifth-Amendment.

[25] Martin v. Beto, 397 F.2d 741, 746 (5^th Circ. 1968).

[26] Hurtado v. People of State of Cal., 110 U.S. 516, 535, 4 S. Ct. 111, 120, 28 L. Ed. 232 (1884).

[27] Id.

[28] Id. at 534.

[29] Id. at 535.

[30] Id. at 535.

[31] Id.

[32] Robin, supra note 17.

[33] Tex. Const. art. I, § 10.

[34] Id.

[35] Hurtado, 110 U.S. at 535.

[36] Tex. Const. art. V, § 12(b).

[37] Tex. Jur. 3d Criminal Procedure: Pretrial Proceedings § 697.

[38] Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995).

[39] Id.

[40] Tex. Const. art. V, § 12(b).

[41] Teal v. State, 230 S.W.3d 172, 176-78 (Tex. Crim. App. 2007).

[42] Tex. Crim. Proc. Code Ann. art. 27.08-.09 (Vernon).

[43] Tex. Crim. Proc. Code Ann. art. 20.09 (Vernon).

[44] Zweig v. State, 74 Cr.R. 306, 318, 171 S.W. 747, 750 (1914).

[45] W. Thomas Dillard et al., A Grand Façade: How the Grand Jury Was Captured by Government, May 13, 2003, at 3, available at ww.cato.org/sites/cato.org/files/pubs/pdf/pa476.pdf.

[46] Id.

[47] The phrase, “indict a ham sandwich,” was made famous in Tom Wolfe’s novel, The Bonfire of the Vanities, and refers to the ease at which a prosecutor can persuade a grand jury to true bill an indictment. Glenn Harlan Reynolds, Ham Sandwich Nation: Due Process When Everything Is A Crime, 113 Colum. L. Rev. Sidebar 102, 106 (2013).

[48] Dillard, supra note 41.

[49] Comment, Secrecy in Grand Jury Proceedings: A Proposal for a New Federal Rule of Criminal Procedure 6(e), 38 Fordham L. Rev. 307 (1969), available at http://ir.lawnet.fordham.edu/flr/vol38/iss2/6.

[50] Id.

[51] Id.

[52] Id.

[53] Id.

[54] See generally, Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (J. Douglas holding that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.); see also Tex. Crim. Proc. Code Ann. art. 39.14 (codifying “The Michael Morton Act”).

[55] Id.

[56] United States v. Amazon Indus. Chem. Corp., 55 F.2d 254, 261 (D. Md. 1931).

[57] Id.

[58] The common law is unclear as to whether prosecutors could be present during the proceedings, however, in 1946 it was an accepted practice and it was subsequently codified in the Federal Rules. See Secrecy in Grand Jury Proceedings: A Proposal for a New Federal Rule of Criminal Procedure 6(e), supra at note 46.

[59] Fed. R. Crim. P. 6(d)(2).

[60] Professor Ryan McConnell, Federal Criminal Procedure: Adjudication Process course materials, at Grand Juries

[61] The rule does not apply to grand jury witnesses. See Fed. R. Crim. P. 6(e)(2)(B).

[62] All information pertinent to a case should be available for a prosecutor to carry out their duties. Additionally, government attorneys are present at these proceedings under the Rules of Criminal Procedure and therefore causes no additional burden or injustice against the defendant .

[63] Rule 6(e) does not supersede “The Jencks Act”, 18 U.S.C.A. § 3500 (West); Brady v. Maryland 373 U.S. 83 (1973); and US v. Giglio, 405 U.S. 150 (1972). (holding that grand jury witness testimony must be turned over to defense counsel if the witness intends on testifying at another hearing.).

[64] A court may permit the disclosure of grand jury materials under Rule 6(e)(3)(C)(i) only when the requesting party has demonstrated a “particularized need” for the material. See Douglas Oil Co. V. Petrol Stops Northwest, 441 U.S. 211, 222 (1979). (finding that the movant must demonstrate that the material is “needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that [the] request is structured to cover only material so needed.).

[65] Tex. Crim. Proc. Code Ann. art. 20.02(a) (Vernon).

[66] Fed. R. Crim. P. 6 (e). See also Tex. Crim. Proc. Code Ann. art. 20.02(b) (Vernon).

[67] Tex. Crim. Proc. Code Ann. art. 20.02(c) (Vernon).

[68] Tex. Crim. Proc. Code Ann. art. 20.02(d) (Vernon).

[69] Tex. Const. Art. III, §56(a)(27).

[70] Id.

[71] Walker v. State, 98 Tex. Crim. 663, 267 S.W. 988 (1924).

[72] Hamman v. State, 166 Tex. Crim. 349, 314 S.W.2d 301 (1958).

[73] State v. Broaddus, 3 S.W.3d 919 (Tex. Crim. App. 1999).

[74] 23 Tex. Jur. 3d Criminal Procedure: Pretrial Proceedings § 647.

[75] 28 U.S.C.A. § 1861 (West).

[76] 28 U.S.C.A. § 1863(a) (West).

[77] Id.

[78] Id.

[79] Id.

[80] 28 U.S.C.A. § 1862 (West).

[81] Tex. Crim. Proc. Code Ann. art. 19(b) (Vernon). (emphasis added).

[82] Tex. Gov’t Code Ann. § 62.001 (Vernon).

[83] It is bewildering that the accused’s liberty is at stake in a criminal case and the statute casually references the use of a civil jury selection process that does not require a detailed plan authorized by a presiding judge.

[84] Castaneda v. Partida, 430 U.S. 482, 482, 97 S. Ct. 1272, 1273-74, 51 L. Ed. 2d 498 (1977).

[85] Tex. Crim. Proc. Code Ann. art. 19.01(a)(1)-(5) (Vernon).

[86] Id.

[87] Id.

[88] Tex. Crim. Proc. Code Ann. art. 19.02-.06 (Vernon).

[89] Tex. Crim. Proc. Code Ann. art. 19.06 (Vernon).

[90] Castaneda, 430 U.S. at 485.

[91] Tex. Crim. Proc. Code Ann. art. 19.09 (Vernon).

[92] Tex. Crim. Proc. Code Ann. art. 19.10 (Vernon).

[93] Tex. Crim. Proc. Code Ann. art. 19.11 (Vernon).

[94] Tex. Crim. Proc. Code Ann. art. 19.13 (Vernon).

[95] Tex. Crim. Proc. Code Ann. art. 19.21-.22 (Vernon).

[96] Tex. Crim. Proc. Code Ann. art. 19.23 (Vernon).

.[97] Tex. Crim. Proc. Code Ann. art. 19.25 (Vernon).

[98] “discrimination.” Merriam-Webster Online Dictionary, 2014, available at http://www.merriam-webster.com/dictionary/discrimination (Nov. 13 2014).

[99] Castaneda v. Partida, 430 U.S. 482, 492, 97 S. Ct. 1272, 1279, 51 L. Ed. 2d 498 (1977).

[100] Id.

[101] Rodriguez v. Brown, 300 F. Supp. 737, 737 (W.D. Tex. 1969) aff’d, 429 F.2d 269 (5th Cir. 1970) opinion withdrawn, 437 F.2d 34 (5th Cir. 1971).

[102] Burks v. State, 583 S.W.2d 389 (Tex. Crim. App. 1979).

[103] Id.

[104] Smith v. State of Texas, 311 U.S. 128, 130 (1940).

[105] Id. at 129.

[106] Id.

[107] Id. at 131.

[108] Id.

[109] Id. at 130-31.

[110] Id.

[111] Id. at 131.

[112] Id. at 132.

[113] Castaneda, 430 U.S. at 494.

[114] Id. at 490.

[115] Id. at 482.

[116] Id. at 493.

[117] Id.

[118] Id. at 494.

[119] Id.

[120] Id. at 494-95.

[121] Id.

[122] See Turner v. Fouche, 396 U.S. 346, (1970) (holding that a 23% disparity in grand jury representation and the population was considered a substantial underrepresentation.).

[123] Castaneda, 430 U.S. at 497.

[124] Larry Karson, Choosing Justice: The Implications of a Key-Man System for Selecting a Grand Jury, at 12, October 8, 2004.

[125] Lisa Falkenberg, DA candidates agree “pick-a-pal” grand jury system must go”, Houston Chronicle, (Sept. 18, 2014), http://www.houstonchronicle.com/news/columnists/falkenberg/article/DA-candidates-agree-pick-a-pal-grand-jury-5765428.php.

[126] Smith, 311 U.S. at 132.

[127] Id. at 130.

[128] 28 U.S.C.A. § 1861 (West).

[129] Castaneda, 430 U.S. at 497.

[130] In recent developments on the issue, Texas Senator John Whitmire has taken action by pre-filing a bill abolishing the key-man system and requiring random selection. See Lisa Falkenberg, Finally, a solution to the pick-a-al problem, Houston Chronicle, (Nov. 14, 2014), http://www.houstonchronicle.com/news/columnists/falkenberg/article/Finally-a-solution-to-the-pick-a-pal-problem-5894136.php.

[131] Discrimination in the selection of grand juries will be discussed in the next section.

[132] Tex. Crim. Proc. Code Ann. art. 19.27 (Vernon).

[133] Id.

[134] Id.

[135] Id.

[136] Tex. Crim. Proc. Code Ann. art 19.30 (Vernon).

[137] Muniz v. State, 573 S.W.2d 792, 796 (Tex. Crim. App. 1978).

[138] Id.

[139] Id.

[140] Id.

[141] Tyson v. State, 146 Tex. Crim. 128, 171 S.W.2d 496 (1943).

[142] Valadez v. State, 408 S.W.2d 109, 111 (Tex. Crim. App. 1966).

[143] Id. at 110.

[144] Id.

[145] Id. at 111.

[146] Harris County District Courts, 2014 Grand Jury Terms, last visited Nov. 15, 2014, available at http://www.justex.net/GrandJuryInfo/GrandJuryInfo.aspx

[147] Tex. Crim. Proc. Code Ann. art. 19.27 (Vernon).

[148] Tex. Crim. Proc. Code Ann. art. 1.24 (Vernon).

[149] Harris County District Court, supra note 129.

[150] Brooks v. Beto, 366 F.2d 1, 11 (5th Cir. 1966).

[151] Tyson, 146 Tex. Crim. at 131.

[152] Supra note 146.

[153] Tex. Crim. Proc. Code Ann. art. 19.42(a) (Vernon).

[154] Tex. Crim. Proc. Code Ann. 19.42(b) (Vernon).

[155] Falkenberg, supra note 145.

[156] See Tex. Crim. Proc. Code Ann. art. 1.24 (Vernon). “The proceedings and trials in all courts shall be public.”

[157] Tex. Crim. Proc. Code Ann. art. 19.27 (Vernon).

[158] Op. Tex. Att’y Gen. No. GA-0422 (2006).

[159] Lisa Falkenberg, In Harris County, secrecy that shrouds grand jurors includes their names, Houston Chronicle, (Sept. 4, 2014), http://www.houstonchronicle.com/news/columnists/falkenberg/article/In-Harris-County-secrecy-that-shrouds-grand-5734645.php.

[160] Id.

[161] Amazon Indus. Chem. Corp., 55 F.2d at 251.

[162] Falkenberg, supra note 142.

[163] Id.

[164] Amazon Indus. Chem. Corp., 55 F.2d at 251.

[165] An extreme example of the concern for grand juror safety is shown by the violent riots in Ferguson, Missouri after the grand jury “no-billed” the indictment against Police Officer Darren Wilson in the murder of Michael Brown. Without a requirement of secrecy of personal information, the grand jurors and their families could face a lifetime of threats or harm. With this in mind, the juror’s ability to fairly carry out their duties as a grand juror would likely be compromised.

[166] Falkenberg, supra note 142.

[167] Tex. Gov’t Code Ann. § 301.001 (West).