Stop The Grandstanding: Texans Want Grand Jury Reform

by Jeffrey L. Boney
Special to the NNPA from the Houston Forward Times

There is a saying in the Lone Star State that “everything is bigger in Texas” and Texans do their best to live up to that saying in many ways.

As the number of police shootings continues to escalate involving unarmed Black men and women in this country, it has seemingly opened up the floodgates for discussion in America about the issues of race, the portrayal of African Americans in the mainstream media and the biggest elephant in the great state of Texas – the grand jury system.

The Texas Legislature is in its 84th Regular Legislative Session and there has been much drama playing out in the mainstream press surrounding potential legislation that would effectively end the grand jury system, as we know it, and begin allowing randomly selected jurors to consider whether a District Attorney’s office or a prosecutor has enough sufficient evidence to move forward with pursuing criminal charges.

In a 1977 opinion, United States Supreme Court Justices warned that the way Commissioners picked grand juries was susceptible to abuse and many states agreed with them – except Texas.

Nearly four decades after federal courts stopped using this method of picking grand juries, Texas continues to operate under the “key man” system or the “pick-a-pal” system, whereby judge-appointed commissioners are allowed to nominate prospective jurors from a pre-selected group of individuals rather than pick randomly selected residents. Individuals selected to serve on a grand jury, especially in Harris County, often consist of people who have past experience in the legal and criminal justice system, or those who have close ties to the judge presiding over the cases; law enforcement officials; other grand jury members; attorneys, bail bonding companies; and various other members of the legal and criminal justice system.

The U.S. Supreme Court ruled in 1940 that grand juries should consist of panels of citizens that decide whether criminal suspects will be indicted and that they should represent “a broad cross-section” of the community. Since the United States adopted its grand jury system from England, this secret gathering of select citizens are supposed to decide whether there is enough evidence to warrant a trial and not decide whether a suspect is guilty or innocent.

However, 65 years later, grand juries in Harris County consist of individuals who have close ties to the legal and criminal justice community and are seemingly less likely to sympathize with a defendant – especially in the case of police involved shootings.

There is no other place in the country that has a system of choosing grand juries the way Texas does, and while that system has been in place for some time now, it has been under fire for by many who believe it is unfair and discriminatory. As we look at the consistent pattern of outcomes from grand juries across the U.S., particularly in Harris County, it is not difficult to understand why there has been an outcry for change.

In a story reported by the Associated Press in 2014, they cited two major issues with the current grand jury system – the ongoing debate surrounding the use of Texas grand jury shooting simulators and an investigation by the Houston Chronicle last year that found that Harris County grand juries have cleared Houston police officers in shootings 288 consecutive times since 2004.

On December 23, 2014, a Harris County grand jury added the 289th Houston police officer to the growing list, when they decided not to indict Houston Police Department (HPD) officer Juvenito Castro for his role in the January 2014 shooting death of unarmed 26-year-old Jordan Baker, who was racially-profiled and mistakenly identified as a criminal.

The overarching perception many officers seem to have, and grand juries appear to agree with, is that young Black men are overly aggressive, inherently up to no good and because they were in fear of their life they had to shoot to defend themselves.

Then after a grand jury is convened in Harris County, the Harris County District Attorney’s Office introduces new grand jurors to a firearms shooting simulator as part of their orientation, and assigns them duties which includes reviewing police shootings and giving the grand jurors a modified gun so they can shoot a beam at the simulator screen as if they were playing out the role of an actual police officer.

Because grand jury proceedings are secretive and never made public, never has the opportunity to hear from or know why the grand jury decides to indict someone or “no-bill” someone.

Many community activists, lawyers, judges, elected officials and Texans believe introducing new legislation would end the perception that the grand jury process is unfair and discriminatory and they want to end the archaic practice this legislative session. There are a few others, however, who believe changing the current process would disrupt the integrity of the process and make it more difficult to find individuals who have enough time to serve on a grand jury.

State Rep. Harold Dutton (D-Houston) has been one of those who has filed a number of bills in the Texas House to bring forth grand jury reforms, but not without controversy and drama.

While all of the activity and traction surrounding grand jury reform was happening in the Texas Senate, Dutton’s grand jury H.B. 282, eliminating the “pick-a-pal” system, was passed out of committee and was set for debate on the House floor – unlike the Senate bill. State Senator John Whitmire (D-Houston), whose S.B. 135 received unanimous bipartisan support with a 31 to 0 vote was sent to the Texas House, but had not yet been brought before the full House for a vote.

Both Sen. Whitmire and Rep. Dutton filed bills that would eliminate the “pick-a-pal” appointment of grand jurors. To date, Whitmire’s S.B. 135 has yet to be brought before the full House for a vote, because any Senate bill that comes to the Texas House is referred to committee, and so was Whitmire’s Senate bill.

In addition to the much-debated grand jury reform bill, Rep. Dutton has also filed other bills about grand jury reform. One bill created a legal presumption that grand jurors would be selected from the jury wheel and only after making written findings explaining rejecting the jury wheel could a judge use the “pick-a-pal” system. Another Dutton grand jury reform measure would have taken off the secrecy of the grand jury proceedings when a police officer was “no-billed”.

After listening to the concerns of many of his colleagues surrounding Dutton’s H.B. 282, particularly in rural areas, Dutton said he became concerned which is when he added a floor substitute to his bill which created the legal presumption in an attempt to ward off opposition.

According to Dutton, the floor substitute did little to persuade members as several letters opposing both the Dutton and Whitmire bills eliminating the “pick-a-pal” system from three district judges were circulated on the House floor during the debate on Dutton’s bill.

In addition to that, State Rep. Ed Thompson (R-Pearland) successfully amended Dutton’s bill to apply the changes to counties that have a population over 2 million. Rep. Sylvester Turner (D-Houston) then successfully amended the bill to change the population from 2 million to 500,000. Dutton then moved to postpone his bill because he objected to having two different sets of justice and two separate grand jury processes in the state of Texas.

This seemed to draw the ire of many members of the mainstream press, as well as State Sen. Whitmire who expressed his disappointment.

Within the next week, however, State Rep. Carol Alvarado (D-Houston) was able to add a grand jury bill on the calendar and Rep. Dutton sponsored the amendment to Alvarado’s bill to include the reform that was in his earlier bill.

Once again, an amendment was offered up by Rep. Thompson, who was acting on the pushback he received from one Brazoria County judge, grand juries in counties of more than 500,000 people would be selected from a general jury pool from which other civil and criminal juries are selected and all other smaller counties with a population under 500,000 would still be able to operate under the archaic “pick-a-pal” system.

That House bill was sent over to the Senate where Sen. Whitmire could eliminate the population bracket, and if that happens, the bill would be returned to the House where there will be a fight again on whether smaller counties would be exempt from the new grand-jury selection system.

Looking at things on a surface level, one could be made to believe that Sen. Whitmire was the hero and Rep. Dutton was the goat, but there are some things we need to understand as it relates to the overall process of legislation in both the House and Senate.

Texas, like 48 other states, has a bicameral legislature which means that the legislative process in Texas involves both a House and a Senate.

History in Texas has proven that just because a measure passes one body of the Texas Legislature, overwhelmingly or even unanimously, it does not guarantee of provide any assurances that the same thing would happen in the other body.

We have seen that take place in the last session with people who attempted to get the Tim Cole Exoneration Review Commission passed.

Tim Cole was the young African American Texas Tech student who had been wrongly convicted of rape in 1985 and was the first man in Texas to be exonerated posthumously through DNA testing, which proved he didn’t commit the crime. Cole died in prison in 1999 before his innocence was proved, but former Gov. Rick Perry pardoned him.

The Tim Cole Exoneration Review Commission bill overwhelmingly passed in the Texas House on a vote of 134 to 6 and was sent to the Texas Senate – it never got out of the Senate.

While Texas may be seemingly closer to revamping the grand jury system that has been in place for decades, and while the Texas Senate has already passed their version of the bill, lawmakers on both sides need to understand that this issue is bigger than personalities, bigger than political posturing and a defining moment for the future of Texas.

There are roughly two weeks left to get a bill to the desk of current Gov. Greg Abbott and the clock is ticking. The question now is, what will Governor Abbot and the legislators going to do to make this a reality?