The Campaign For DA

12.12.2014

My Grand Jury Post (Which Will Probably Bore Everyone But Is Incredibly Honest And Accurate).



So how does it work?

First, understand it isn't like a "regular" jury. The best thing about "regular" jurors is that folks are called in from a list of those in the county who hold driver's license or are registered to vote. That will give you a pretty good cross-section of the community.  Anyone on that list might be rich or poor, dumb or brilliant, conservative or liberal. (Over a decade ago -- heck maybe two decades -- jurors only came from voter registration lists.)

So how are grand jurors selected?

The first process is probably the most flawed. The district judge, because he has to, must appoint a commission who will then select potential grand jury members.

The law says: "The district judge . . .  shall appoint not less than three, nor more than five persons to perform the duties of jury commissioners . . . .   Such commissioners shall . . . possess the following qualifications:
1. Be intelligent citizens of the county and able to read and write the English language;
2. Be qualified jurors in the county;
3. Have no suit in said court which requires intervention of a jury;
4. Be residents of different portions of the county;  and
5. The same person shall not act as jury commissioner more than once in any 12-month period".

So there you go.  Practically (and this is important), a judge will select folks who are active in the community, have a "good" reputation, aren't nut cases, and represent all parts of the county.  By default, this will include people who are, in practical terms, "successful". I have no trouble with that, but this is where the flaw in the system is.  Why? Because those folks, by and large,  are generally very pro-police and have a very law and order attitude. You'll never see them in a march about civil rights.

So once those names are selected, they are called up to the courthouse one morning, meet with the judge in a casual atmosphere, and then go in a room to come up with a list of names to serve as potential grand jurors. Who will they select? That group is going to select people who they know and, oftentimes, are friends.  You know what that means? They are going to select people, in general, who are going to be just like them. So, in almost all situations,  you end up with a grand jury panel which is extremely conservative and very pro-prosecution. They will select 15 to 40 people who will come in for potential grand jury service.

Is that process of the commissioners coming up with those names public? The law doesn't say. Practically, the answer is no.

The group of 15 to 40 will then show up for potential grand jury service. The grand jury is ultimately composed of 12.  The selection of those 12 is a very informal process. Normally, the first 12 on the list who don't object to serving end up on the grand jury.  That process is public. In a little known law, "any person may challenge the array of jurors."  And by "challenge" the law says it means they have not been selected according to procedure, are not qualified,  or have been summoned "corruptly".  Does that ever happen? No. How could it? It is not required that a public notice be given when the grand jury is impaneled.  (Crazy part of the law which is never been invoked: "Any person confined in jail in the county shall upon his request be brought into court to make such challenge.")

Note that no lawyers (other than the judge) are involved in this selection process. No one like me can stand up and give a speech about how important it is that the protect the citizens from crazy prosecutors. But, also, no prosecutor gets to pick and choose who is on the grand jury. But, like I said, the grand jury will ultimately be composed of 12 very conservative people.

From this point forward, the DA's office controls the grand jury. He decides when they will meet. He will decide what cases are presented. He will decide when to tell them what cases he wants indicted.

Some basic fundamentals about the grand jury process:
  • The grand jury doesn't decide guilt or innocence. They just decide there is enough evidence to believe that someone "probably" committed a crime and deserves to be put into the system.
  • But, shockingly, they practically never hear from witnesses. The only thing they will normally hear is a five to ten minute presentation by a prosecutor as to what the prosecutor believes the evidence to be. (Sometimes the officer in the case will be present to answer questions the grand jury might have -- at least that was my procedure as DA -- but that is not legally required.)
  • There is no requirement that the grand jury be informed of evidence that indicates a potential defendant may not be guilty.
  • A potential defendant who is facing an indictment is not allowed to be in that room or present any evidence unless the prosecutor agrees to let him in.
  • In the rare instance that the prosecution agrees to let a potential defendant present evidence, his lawyer is not allowed in the room without the prosecutor's consent.
  • Only 9 of the 12 grand jurors need to agree to indict. You can actual get an indictment if only 9 grand jurors show up. 
  • All presentations before the grand jury are secret. This may be the most bizarre aspect of the U.S. criminal justice system.  
  • 99% of the time there is no court reporter in the grand jury room. 
  • A prosecutor is not placed under oath before he makes his presentation. 
So there you have it.  You think a prosecutor can "indict a ham sandwich?" In our system, he can.

So why is it so rare to hear about a grand jury deciding not to indict someone (called a "No Bill")? That's because the DA has the absolute right to reject any case that law enforcement presents to him. If a case sucks, he can simply "decline" it and tell law enforcement that there's no way he get a conviction.  He doesn't have to present it to the grand jury.

So why would a DA present a case to the grand jury that he doesn't think he could win? Why not just reject it? One reason: Political cover.  I did that as DA. All DAs do it. If I received a case from law enforcement that I thought I couldn't win  and it was (1) political, (2) had received great media attention, (3) law enforcement was really hot to trot about, or (4) I thought I would get beaten up in the press if I simply "refused it", I'd take it to the grand jury and recommend they not indict it. That way I could say, "The grand jury heard all the evidence in this case and decided there was not probable cause to proceed."  Additional nugget: You never asked for a no bill from a new grand jury. You waited two or three months to build a relationship. They generally will grow to trust the prosecutor.

That's how it works. The grand jury is supposed to be present to protect the public from zealous prosecutors. That is only a pipe dream.  Around the country, they practically serve as a rubber stamp. If the process were to be abolished, things wouldn't change one iota.

Edit: I'm taking questions from the comments!

(1) Are the jury commissioners paid? How much? Answer: Wow. I have no idea. I think the answer is no. That might be a county by county decision. That got me wondering if even the grand jurors are paid. A quick Google search told me Harris County pays $28 per session and Tarrant County pays $36 per session.

(2) Is the DA presentation to the grand jurors an open question and answer discussion? How interactive are these presentations? Answer: Great question. If the grand jury wants to pepper the prosecution with questions, they can do so. The prosecutor refusing to answer or being evasive does so at his peril.  In my experience, the grand jurors are timid in the first session and then begin to get more comfortable as time goes by.

(3) As a DA, did you ever show videos to the grand jurors to condition them [like they do in Houston]? Answer: No. But I'll admit to preparing a "packet" to answer predicted routine questions they would have. (Man, I'd love to find that.) Was that an attempt to "condition them"? Upon reflection, I tried to send a message of, "If I'm bringing this case to you it is because it's justified."  I thought I was unique. But, heck, what prosecutor doesn't think that?

(4)  If a grand jury returns a no-bill, that does not prevent the DA from taking the case to another grand jury. In legal terms, jeopardy does not attach to a no-bill, correct? So the cop in Ferguson could be indicted by another grand jury, especially if the current DA gets replaced, right? Answer: Absolutely correct.

(5) [Not a question but I'm printing it:] Grand juries are given much broader powers than they are ever told about. They can conduct their own investigations. For instance, there was that notorious "runaway grand jury" in Harris County a few years ago. I think it would be helpful for you to inform the folks that might serve on the grand jury that they are not bound by whatever the prosecutor wants to put in front of them. [?] Answer: That's basically right. Nothing says that a case must come to the them through the DA. And the DA "or" the foreman of the grand jury can request subpoenas.

(6) Does Subway make Subpoena's? Answer: I'll research that. (But isn't "subpoena" the weirdest spelled word ever?)

(7) Doesn't a DA need some level of new evidence before re-presenting a case to a different grand jury? Answer: Nope. He isn't even obligated to tell the new grand jury that he's tried this before. 

32 comments:

Anonymous said...

Thanks, Barry. Good read and good info.

Anonymous said...

Thank you for the explanation...very interesting.

Several questions:

Are the jury commissioners paid? How much?

Is the DA presentation to the grand jurors an open question and answer discussion? How interactive are these presentations?

Thank you

Sam Brows said...

Informative post.

Anonymous said...

Thanks for taking the time to share both your procedural and practical knowledge. As a civil lawyer, I knew the general concepts but all of the specifics were a mystery to me (and I didn't have the time/energy to research it).

Anonymous said...

I've been on a grand jury and often went against the DA recommendation. When there were only nine grand jurors present, one person could decide to no bill a case. I just voted on the evidence I heard from the police officer. If I thought it was stupid law or there was no victim, I voted to no bill..
Of course the DA could bring it to another grand jury but that was out of my control. I didn't feel like I had to justify my vote to anyone.

Anonymous said...

Incredibly honest and accurate says the ham & egg-er!

Oh my goodness gracious! How would we ever know what a grand jury was without Barry?!?!!

Anonymous said...

AS a DA, did you ever show videos to the grand jurors to condition them? For example, in Harris County, all grand jurors are shown videos of "active shooter" situations where cops find themselves being shot at and how to respond. It is widely believed that that is a major reason why cops in Harris County haven't been indicted in over 200 shootings--including the one-armed, one-legged guy in a wheelchair who was shot for "cornering" the cop.

Anonymous said...

lol, having been one of the few who gets to select the pool, sorry Berry, yes liberal folks do get on the list! My neighbor pissed me off and he a flaming liberal., oh sorry about that vacation to the island...lol

Anonymous said...

"If I'm bringing this case to you it is because it's justified."


...unless I tell you to no-bill it.

DF BSG

Baylor Too said...

Barry, a couple of things you should address:

1. If a grand jury returns a no-bill, that does not prevent the DA from taking the case to another grand jury. In legal terms, jeopardy does not attach to a no-bill, correct? So the cop in Ferguson could be indicted by another grand jury, especially if the current DA gets replaced, right?

2. Grand juries are given much broader powers than they are ever told about. They can conduct their own investigations. For instance, there was that notorious "runaway grand jury" in Harris County a few years ago. I think it would be helpful for you to inform the folks that might serve on the grand jury that they are not bound by whatever the prosecutor wants to put in front of them.

wordkyle said...

Given the info BG has provided, then indictments shouldn't get so much press as an indication of guilt, right?

Anonymous said...

Doesn't a DA need some level of new evidence before re-presenting a case to a different grand jury? Although I think David Temple in Houston was run before two or maybe three grand juries over the years.

http://www.chron.com/news/houston-texas/article/Is-David-Temple-innocent-of-his-wife-s-death-3854704.php

Anonymous said...

Does Subway make Subpoena's?

Anonymous said...

I believe that the grand jurors do get more independent as time goes on -- that is why in Texas in most counties it is a six month term -- then you are done and the DA gets to start with a whole new group.

When I get a chance in our local courtroom, I tell the new grand jurors to take their common sense with them into the grand jury room. If it smells rotten, it's probably rotten.

Anonymous said...

(But isn't "subpoena" the weirdest spelled word ever?)

No. It's Latin for "under penalty", and I think "eschatalogical" is the weirdest spelled word, ever.

DF Lester the Tester

Anonymous said...

Barry, that was really well written and informative. I do wonder if you had any changes you might make to this system?

I have a lot of respect for the jury system we have and the opportunity ordinary citizens have to participate in it, but I dislike lawyers who stare at juries seated in the jury box, to study their reactions to testimony. Some of the stuff they have to hear and/or see is disgusting. Who wouldn't react?

Anonymous said...

Professor Bu...

Is the final going to cover the entire semester or just what we've covered since the last exam?

Anonymous said...

So if you suck up to a DA enough and offer enough payola, you can get away with murder, or rape, or whatever - because the DA could have all the best evidence in the world that could put you away forever, but since you're on her or his forever "you owe me" list, you get a No Bill!

Isn't that poetic justice?

Yes, it happens. Yes, it happened.



Bear said...

The problem seems to be that lawyers make the rules, apply the rules, interpret the rules and then change the rules. The only constant here is the lawyers. Maybe that is what needs to change?

Anonymous said...

You are correct, Wordy

Anonymous said...

Good stuff. Thanks for sharing.

jon spencer said...

"You'll never see them in a march about civil rights."
The 2nd. Amendment is a civil right and there seems to be a few that will march is support.

The Donald said...

Barry - Good post, it gives some illumination to the process. However, I am curious about some of the inferences and hot opinions expressed.

The first process is probably the most flawed. The district judge, because he has to, must appoint a commission who will then select potential grand jury members.

I was occasioned to attend citizen day camp for a week, a few weeks ago, in the county where we both live. From what I understood from the central jury room administrator's instructions, after all the courts' dance card pools had been filled, they solicited volunteers for GJ service, to commence after the first of the year. My impression was that if the GJ makeup was skewed, it would be toward retirees and homemakers, of whatever political inclination, who lacked the constraints of regular day employment.

But, shockingly, they practically never hear from witnesses. The only thing they will normally hear is a five to ten minute presentation by a prosecutor as to what the prosecutor believes the evidence to be. (Sometimes the officer in the case will be present to answer questions the grand jury might have -- at least that was my procedure as DA -- but that is not legally required.)

It strikes me - a non-lawyer - that unless the judicial system is going to bring to trial all persons, or none, suspected of crimes, there is a requirement for some mechanism to filter, or triage, cases worth pursuing. Unless and until there is an indictment, is not the evidence simply scant and preliminary? Shocking? Are you suggesting the DA should waste taxpayer money to develop exhaustive evidence for a case that may never be tried? Sort of defeats the triage purpose. But hey, I'm just a cave-man (but not a lawyer).

...no requirement that the grand jury be informed of evidence that indicates a potential defendant may not be guilty.

True. But, nonetheless, the DA's awareness of the quantity and quality of potentially exculpatory evidence would, generally, influence the decision to present - or not - a case to a GJ, tempered, of course, by political ramifications, as you noted. So, not really so titillating as might be implied.

A potential defendant who is facing an indictment is not allowed to be in that room or present any evidence unless the prosecutor agrees to let him in.

On a related note, U.S. Air Force bases do not hire KGB agents to man the installation gates. And a recent taxpayer funded study also reports that farmers do not utilize foxes to guard their chickens. Go figure.

If I happened to be a criminal defense attorney, I suppose I might incline to rail, with sufficient indignation, about the disproportionate and unfettered power of District Attorneys in deciding what cases to present to grand juries. And I also suppose that I would hope like hell they keep indicting people - oh, by the way, did I give you my business card? Is that facile and disingenuous?

You point out many possible foibles in the current grand jury process, and say that if it were scrapped, there'd not be an iota of change. So, then what mechanism or system do you suggest that would rectify or ameliorate the current situation, without clogging the judicial system by every allegation resulting in trial, or result in anarchy due to zero implementation of the rule of law?

Anonymous said...

So BG were you a DA before you were a liberal or a liberal before you were a DA. Just wondering how one becomes a liberal.

Anonymous said...

I don't think any of us really KNOW what Barry thinks politically. The Liberally Lean title is likely just a gimmick to get conservatives to take a look. He did run as a DEMOCRAT for DA. Had he not, he would have not been elected. The Democrats were in "power" at that time. Surely we know we gotta go with the political tide or drown. Dumb question, 11:l0.

Anonymous said...

SYZYGY is my favorite spelling of a word, none of the usual vowels!

sparkerr said...

Thank you, BG. I enjoyed this tutorial.

Anonymous said...

There shouldn't be a great number of "no bills" because a prosecutor should only prosecute a case if he thinks the defendant is guilty and has a win-able case...why prosecute an innocent person? why try a case that cannot be won?

and those of you that think EVERY case should go to a trial by a jury have never been in the criminal justice system...do you have the 5-10 thousand dollars lying around to spend on bail bonds and attorneys to defend yourself in court?

Anonymous said...

How Bout Them BULLS

Anonymous said...

Rhome will make a fortune off the new impound lot. Chief Davis knows how to run the town better than the council, and bring revenue into town. The police are better than ever and well armed with state of the art assault rifles to protect the community from cartel drug pushers on 287. Support the proposed impound lot and lower taxes.

Anonymous said...

I think the whole system is BS. There are some "friends" that get recalled regularly because of their relationship with the DA. That would make it hard to get an indictment on a past jury member if needed because of the way the system works. Why would the DA slap the hand that feeds him? Its just a screwed up system of good ole boys doing favors for each other. Typical small county BS.

Anonymous said...

Thousands of people died horrible, violent deaths - to ensure our right to the protection of a Grand Jury.

How soon you people love to forget history......