Lone Star grand jury selection and independence, part 2

The previous article in this two-part series considered the selection of grand jurors.1 In this article the focus is on the authority of the grand jury.
    Interestingly, England—whence the American grand jury system can be traced going back to the years preceding the Magna Carta—abandoned grand juries more than three-quarters of a century ago and replaced them with committal proceedings, basically a process whereby if a defendant pleads “not guilty” and a magistrate reviews the strength of the prosecution’s written evidence. Australia, Canada, and New Zealand also have abolished grand juries.2
    In the U.S.A., only 23 states—including Texas—and the District of Columbia require indictment by grand jury for select offenses. Grand jury indictment is optional in 25 states and is not used at all in Pennsylvania and Connecticut (although the latter two retain grand juries for investigating, as do all other states). Texas, however, is one of few states that—like the federal government—has the distinction of charging all felony offenders by a jury of their peers.3
    In the U.S.A., cynics assert that the grand jury is simply a prosecutor’s “rubberstamp”: The prosecutor presents a case and makes a recommendation, which the grand jury contentedly affirms. Hence that hackneyed culinary expression that a prosecutor can indict anything—including a ham sandwich.4 No doubt an overbearing prosecutor can dominate a grand jury and influence its decisions, but one who does so, especially as a matter of course, denies himself the very protection the grand jury affords, performs a gross disservice to the community by stripping the grand jury of its independent role in determining the propriety of felony charges, and renders the grand jurors’ service nugatory.
    Today, there is an unparalleled fondness for “integrity units” to provide oversight of the prosecution’s work. Not to denigrate their work, which has revealed some improper convictions, but Texas already has in place two pre-conviction integrity units—the grand jury and the petit jury.5 Although most felony offenders never have their cases decided by a petit jury, they do have their cases evaluated by a grand jury.6

Pre-conviction integrity unit
A properly constituted and informed grand jury working within its discretion serves as the first pre-conviction integrity unit in a felony prosecution. While those routinely involved in the legal system, such as law enforcement, investigate and file cases, and counsel and magistrates serve to inform and protect defendants’ rights, a grand jury, like its sister, the petit jury, is the opportunity for those not directly connected to the daily business of criminal justice to temper the adversarial process with common sense, compassion, non-technical review, and to bring to bear their diverse viewpoints. Free of the clutter of legal niceties but within a statutory framework, the jurors determine what they as a body believe is the proper and just result—a “true bill” or “no bill.” Their input not only protects the innocent and pursues the guilty but also assists, shields, and guides the prosecution. By virtue of its role, a grand jury lends integrity to the felony offender justice system.
    The authority of the grand jury is, if fully exercised, awesome—especially in light of the members’ lack of uniform legal training (which may be their greatest asset as they are free from the restraint of technical rules7) and the powers they wield.
    We all know that, traditionally, grand juries receive information, investigate, and deliberate.8 In Texas, the express duty of the grand jury is to review all indictable offenses whether the information is presented by a prosecutor or credible person or learned through its members’ own knowledge.9 In the usual course of events, a grand jury hears evidence presented by a prosecutor. But, sometimes forgotten because of its infrequency, a grand jury can proceed without any input from a regular prosecutor (though the appointment of an attorney pro tem is appropriate) which permits a grand jury to “turn the tables” to investigate even those working within the criminal justice system, whether those in law enforcement, a member of the judiciary, court staff, a prosecutor’s staff, or the prosecutor.10

The grand jury vis-à-vis the trial court
The foreperson of the grand jury, not the trial judge or the prosecutor, presides over and conducts the jury’s proceedings.11 The foreperson can issue summons or attachment for any witness presiding in the county and can do so without the involvement of a prosecutor,12 although, of course, if a subpoena is challenged the trial court will adjudicate its propriety. Also, a grand jury requires the court’s imprimatur to subpoena witnesses outside of its county.13 Although a grand jury can consider incompetent evidence, it cannot violate privileges established by constitutions, statutes, or common law—for example, compelling a person to testify in violation of his Fifth Amendment right not to testify (unless adequate immunity is granted).14 So, if a witness refuses to testify or produce subpoenaed documents, the grand jury must seek recourse from the trial judge.15
    A grand jury that recommends charges as well as investigates—both in conjunction with the prosecution and independently—must have substantial powers. As the Supreme Court of the United States opined a quarter-century ago:
[B]road powers are necessary to permit the grand jury to carry out both parts of its dual function [determining if there is probable cause to believe a crime has been committed and protecting citizens against unfounded criminal prosecutions.] Without thorough and effective investigation, the grand jury would be unable either to ferret out crimes deserving of prosecution, or to screen out charges not warranting prosecution.16
And much of the grand jury’s power devolves from the trial court. Thus, a grand jury “remains an appendage of the court” and “may depend in large part on the enforcement powers of the court.”17 This relationship with the trial court provides the grand jury with its teeth and usually keeps grand juries operating within the bounds of the law.
    A trial court’s relationship with its grand jury, under either the key-man or random selection system, is a tight one. A grand jury is “very connected” to its appointing court, as the court exercises supervisory power … whether by impaneling, reassembling, qualifying, quashing subpoenas, or aiding investigation.”18 Nevertheless, the grand jury is of a “separate and independent nature” because, although it may seek advice from the court, it deliberates alone and in secret.19 So theoretically, if not always practically, even a trial court has a limited ability to control a grand jury.20

The grand jury vis-à-vis the prosecutor
When interacting with grand jurors, a prosecutor really plays two roles.21 First, the prosecutor has a limited right to appear before the grand jury. The prosecutor is “entitled” to appear to inform the grand jury of offenses. In this role, the prosecutor may examine witnesses; advise on questioning; issue summons, subpoenas, or attachments; but shall prepare indictments listing the witness’s names.22 The prosecutor does not attend or participate in the grand jury’s deliberations.23 The prosecutor also does not take part in presenting the signed indictments to the trial court or clerk—that is the foreperson’s responsibility.24
    Second, the prosecutor appears in an advisory capacity. In fact, the prosecutor assists the grand jury at its pleasure. The grand jurors may seek advice from the prosecutor on “any matter of law” or on “any question” concerning “the proper discharge of their duties.”25 But the grand jury can turn to the appointing court instead. Indeed, grand jurors can seek advice from the court “touching any matter before them,” so long as they do not reveal the particular accusation before them.26 On its face, then, the topics on which a trial court may advise are much broader than that of the prosecutor. Also, there is no statutory authority for a prosecutor to rein in a grand jury—although communicating any problem to the appointing trial judge should suffice with a cooperative judge.
    A prosecutor, then, should have more of an advisory than supervisory role with a grand jury. As one appellate court has opined, a prosecutor is merely a “servant of the grand jury.”27

An almost mystical aura pervades grand jury proceedings because they are shrouded in secrecy—the uninitiated may even suspect something like the practice of witchcraft. Indeed, in these days of open government and demands for full disclosure of the prosecution’s files, this veil provides fertile grounds for conspiracy theorists. But the “covert” operations of the grand jury are also essential to its authority.
    The maintenance of the grand jury’s secrecy promotes its dual function by 1) concealing the identity of witnesses who would otherwise not come forward to testify, 2) preventing retribution to witnesses for full and frank testimony, 3) denying notice to those who might flee or influence witnesses, and 4) allowing those accused but exonerated freedom from public ridicule.28 Therefore, when not abused, secrecy furthers both the protection of the innocent and the pursuit of the guilty.29

A wisely selected and properly advised grand jury—one cognizant of its responsibility and authority—does not operate recklessly and is no mere vessel of the prosecution or the trial court. Rather, it is a free-thinking, impartial body with the tools to investigate anyone in its jurisdiction, exercise sound group discretion, and fairly recommend felony charges or not. As their oath, in part, states:

You shall present no person from envy, hatred, or malice, neither shall you leave any person unpresented for love, fear, favor, affection, or hope of reward, but you shall present things truly as they come to your knowledge, according to the best of your understanding, so help you God.30

If a grand jury is to serve as an effective filter—or if you prefer, felony pre-conviction integrity unit—in our criminal justice system, it must remain largely autonomous. As “Texas courts have long described … [a grand jury should be] a separate tribunal, independent of the control of judges and prosecutors.”31 A Texas grand jury should be both a shield and a sword—investigating and presenting—to protect the innocent and pursue the guilty. i


1 See The Texas Prosecutor, Vol. 42, No.1, January–February 2012 issue.
2 See Wikipedia (ever a useful starting place for general research, but sometimes less than authoritative), available at: http://en.wikipedia.org/wiki/ Grand_jury.
3 Most of the information in this paragraph is drawn from Professor Susan W. Brenner’s website on grand juries in the U.S.A. available at: http://uspolitics.about.com/gi/o.htm?zi=1/XJ&zTi=1&sdn=uspolitics&cdn=newsissues&tm=56&gps=231_486_1276_573&f=00&tt=2&bt=0&bts=1&st=11&zu=http%3A//www.udayton.edu/%7Egrandjur/index.htm. Professor Brenner is the NCR distinguished Professor of Law and Technology at the University of Dayton School of Law.
4 The saying is apparently attributed to Judge Sol Wachtler, the former Chief Judge of New York State. See www.websters-online-dictionary.org/ definitions/grand+jury?cx=partner-pub-0939 450753529744%3Av0qd01-tdlq&cof=FORID% 3A9&ie=UTF-8&q=grand+jury&sa=Search#906. May he be sorry he coined it!
5 I borrow this apt analogy from Williamson County District Attorney John Bradley’s Grand Jury presentation at the 2011 TDCAA Elected Prosecutor Conference.
6 Traditionally, most criminal cases are resolved by plea bargain agreements and only a few felony proceedings are initiated by information.
7 See, e.g., Costello v. United States, 350 U.S. 359, 362 (1956) (“in this country … the grand jury has convened as a body of laymen, free from technical rules, acting in secret, pledged to indict no one because of prejudice and to free no one because of special favor”).
8 See Tex. Code Crim. Proc. arts. 20.09, 20.17–19.
9 See Tex. Code Crim. Proc. art. 20.09.
10 A recent illustration of a grand jury’s ability to investigate the elected district attorney is to be found in In re Guerra, District and County Attorney for Willacy County, Texas, 235 S.W. 3d 392, 415 (Tex. App.—Corpus Christi, 2007) (orig. proceeding) (conditionally granting writ of mandamus to have magistrate order’s appointing an attorney pro tem set aside, but also observing that, in the face of a grand jury initiating an investigation of a prosecutor, a trial court may disqualify the prosecutor and appoint an attorney pro tem “to preserve the integrity of the court and aid in the administration of justice”).
11 See Tex. Code Crim. Proc. art. 20.07.
12 See Tex. Code Crim. Proc. art. 20.10.
13 See Tex. Code Crim. Proc. art. 20.11.
14 United States v. Calandra, 414 U.S. 338, 346 (1974); United States v. Dionisio, 410 U.S. 1, 12-15 (1973).
15 See Tex. Code Crim. Proc. art. 20.15; Ex parte Edone, 740 S.W.2d 446, 448-49 (Tex. Crim. App.1987) (testimony); Ex parte Marek, 635 S.W.2d 35, (Tex Crim. App. 1983) (documents).
16 United States v. Sells Engineering, 463 U.S. 418, 424 (1983).
17 Id.
18 Ex parte Edone, 740 S.W.2d 446, 448 (Tex. Crim. App. 1987).
19 See id.
20 The irreverent analogy that jumps to mind is the relationship between someone and his dog.
21 See, e.g., id., at 408 n.55.
22 See Tex. Code Crim. Proc. arts. 20.03, 20.04, 20.10, 20.11, 20.15, 20.19, 20.20.
23 See Tex. Code Crim. Proc. arts. 20.03, 20.11.
24 See Tex. Code Crim. Proc. art. 20.20.
25 See Tex. Code Crim. Proc. art. 20.05.
26 Tex. Code Crim. Proc. art. 20.06.
27 Stern v. State ex rel. Ansel, 869 S. W.2d 614, 621 (Tex. App.—Houston [14th Dist.] 1994) (writ denied) (referring to the prosecutors duty to take custody of evidence submitted for the grand jury’s consideration).
28 See id., quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19 (1979) (footnotes and citations omitted).
29 Sells Engineering, 463 U.S. at 424, quoting United States v. Johnson, 319 U.S. 503, 513 (1943).
30  Tex. Code Crim. Proc. art. 19.34.
31 Whittington v. State, 680 S.W.2d 505, 512 (Tex. App. —Tyler 1984, pet. ref’d).