“Justice should not only be done, but should manifestly and undoubtedly be seen to be done.”1
From the public perception, grand juries are a largely overlooked step in the criminal justice system. Usually, they do not attract attention. Most of them complete their work diligently and unremarkably. But occasionally, even seasoned prosecutors can be surprised by their conduct. Certainly, a grand jury’s decision to “true bill” or “no bill” can be bewildering, but a grand jury can alarm in other, more public ways.
Over the last few years, several grand juries across the State have attracted uncustomary attention. As illustrations, in a politically charged case arising from the last Denton city mayoral race, the process of selecting grand jurors came to the forefront.2 Additionally, a few years back, a Willacy County grand jury investigated a former district and county attorney.3 So what gives with our grand juries?
Before we jump up excitedly identifying “witch hunts” or “captured,” “rogue,” or “runaway” juries, all of which may or may not be true at some time or other, let’s look at two aspects of our state grand jury system: the methods by which our grand juries are selected and their degree of independence. Most of the time, not much thought may be given the former because its practice is long-established, and little consideration may be given to the latter because, normally, grand jurors are busy enough with cases presented by the prosecution and are not exactly looking for any extra work in exchange for their meager pay.
These two topics will be delivered in two separate issues: this first article addressing the empanelment of the grand jury and a second, upcoming piece on the authority of the grand jury. As you might expect, our state grand jury law has been strongly influenced by federal and English grand jury law, but within that context, Texas has adopted its own statutes governing the selection and operations of a grand jury.
The Code of Criminal Procedure provides two methods by which a grand jury can be selected. Under the first method, a district judge appoints between three and five “jury commissioners” who in turn select the grand jurors.4 The chosen jury commissioners—aided by the princely sum of $10 a day for their services—must be intelligent and literate, qualified jurors in the particular county, have no suit requiring a jury in the impaneling court, be residents of different portions of the county, and not have served as a jury commissioner more than once within any 12-month period.5 Alternatively, under the second method of selecting grand jurors, between 20 and 125 citizens are summoned in the same manner as petit jurors.6 Whichever method of grand jury selection is employed, between 15 and 40 citizens are chosen as grand jurors.7
To serve as grand jurors the citizens gathered under either method must satisfy the same qualifications. A grand juror must be: a citizen of the state and county in which the citizen is to serve, able to vote in the particular county, of sound mind and of good moral character, literate, not accused or convicted of a crime, not related to another grand juror within the third degree of consanguinity or second degree of affinity, not have served within the previous year as a grand juror or jury commissioner, and not a complainant in any matter to be heard by the same grand jury.8
While the identical minimum qualifications are required of serving grand jurors, the two methods used to select grand jurors obviously invite two different pools of citizens to become grand jurors. The jury commissioner selection method is often called the “key-man” system and the petit juror selection method the “random” or “wheel” system. Collin, Dallas, Denton, and Tarrant Counties, as do most others, use the key-man system but Bexar, El Paso, and some Harris County courts employ the random system. Maybe other counties or their courts use the random system, but almost certainly not many.
With two selection systems in play it is natural to ask whether there are any practical differences in using them and whether one system furthers justice better than the other. In fact, the existence of the two methods of grand jury selection in Texas reflects what the majority of states might perceive as an incomplete transition. In the federal system and most of the states today, the random system of grand jury selection prevails. The random system has replaced the key-man system in all but California and Texas.
Back in 1977, the Supreme Court warned that, although it has upheld the facial constitutionality of the key-man system, the Texas system is “highly subjective” and “susceptible of abuse as applied.”9 Indeed, it observed later in the same opinion, “Because of the many facets of human motivation, it would be unwise to presume as a matter of law that human beings of one definable group will not discriminate against other members of their group.”10 Castenada was the last of the Court’s series of six opinions—the first issued in 1940 and the last in 1977—involving the selection of grand jurors in Texas.11 In each of these cases, the defendants challenged the racial composition of the grand juries. Nearly a half century has passed since the High Court’s last opinion on the Texas key-man system but, in light of the random selection system adopted in most of the nation, Texas continues to taunt Washington by its reluctance to either adopt the random system or prescribe that the key-man system result in grand juries that are representative of the community.
The key-man system attracts challenges on grounds that it is subject to abuse. The principal complaint is that the jurors are drawn from those directly connected with the criminal justice system including attorneys, bailiffs, court reporters, probation officers, and the like. Also, many jurors are drawn from those persons who are considered “pillars of the community,” and retirees. Many of these may have strong ties with law enforcement officers who bring their cases and appear before a grand jury. It is argued that all these selections are inherently more likely to buy into whatever the judge, prosecutor, or officers say. Subject to the bar on repeated service within a twelve-month period, the recycling of jurors also occurs. In this manner, a large slice of the community can be overlooked or ignored for grand jury selection. Worse, the selection of “repeats” can be viewed as effectively disenfranchising portions of the population, i.e., those elements that the judge and commissioners don’t know. Accordingly, it is argued that those grand jurors selected under the key-man system inadequately reflect a fair cross-section of society.
But perhaps it is the appearance of impropriety, which is fostered all too easily by the key-man system, that remains its principal fault. As a single judge selects a limited number of jury commissioners and the jury commissioners chose the grand jurors this method has been interpreted as engendering nothing better than a “pick-a-pal” process. This can lead to strong ties between the grand jurors and elected officials or government employees who are investigated by the grand jury and also with police officers. With this information, the critical public is, perhaps, left believing that “where there’s smoke, there’s fire”—that favoritism and cronyism infect the criminal justice system from the very start of formal proceedings.12
The principal advantage of the key-man system is that it can be a more expedient method of picking grand jurors. It is much easier on the judges than calling in and questioning large panels as they must for regular petit jurors. The system avoids problems of trying to press into service those citizens who would not volunteer because of disagreements with the system, lack of interest, economic, family, or health reasons. Conscientious judges can use the key-man system to ensure that a fair cross-section of society is represented by its grand jurors—something that the random selection system cannot guarantee, simply because of its fortuitous nature.
If, as the Supreme Court has stated, “[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community,” are our grand juries selected by the key-man system “truly representative of their communities?”13 The honest answer is, on occasion at least, no.14
Because defendants have little to no ability to challenge the selection of grand jurors, it is important that whatever system a county select, the judges ensure fairness in the process.15 Many jurisdictions have demonstrated that the random system is workable, and by adopting it, they have also managed to eliminate in great part the appearance of impropriety.
Apparently lending its endorsement to the proposition, the Supreme Court has observed, “It has been said that random selection methods similar to the federal system would probably avoid most of the potential for abuse found in the key-man system.”16 Not only that, but if the grand jurors are truly independent they serve as your basic and/or preliminary conviction integrity unit—a valuable filter between the investigation and charging processes. (I’ll write more on that in the next article.)
Counties are already in the business of selecting petit jurors for trial, so the task of switching to the random system for grand jurors is simply one of calling more or larger pools. It is almost axiomatic that, if we truly have an interest in seeking justice, it is vital that justice is also seen by the public. If, under the key-man system, judges carefully select their commissioners to gather grand jurors so they are “truly representative of society,” there should be minimal danger of running afoul of constitutional law. Otherwise, the random-selection system offers the community and the judges the best protection.
1 Liteky v. United States, 510, U.S. 540, 565 (1994), quoting Lord Chief Justice Hewart in Ex parte McCarthy,  1 K.B. 256, All E.R. 233 (U. K. 1923).
2 Grand jury system questioned, Denton Record Chronicle, Oct. 16, 2011 at www.pretrial.org/ NewsAndArticles/PretrialPressDocuments/DentonRC.pdf.
3 See, e.g., In re Guerra, District and County Attorney of Willacy County, 235 S.W.3d 392 (Tex. App.—Corpus Christi 2007) (orig. proceeding).
4 See Tex. Code Crim. Proc. art. 19.01(a).
6 See Tex Code Crim. Proc. art. 19.01(b).
7 See Tex. Code Crim. Proc. art. 19.06.
8 See Tex Code Crim. Proc. art. 19.08.
9 Castenada v. Partida, 430 U.S. 482, 497 (1977) (denial of Equal Protection by exclusion of Mexican-Americans from Hidalgo County grand jury).
10 Id., at 499.
11 See Castenada, 430 U.S. 482; Hernandez v. Texas, 347 U.S. 475 (1954); Cassell v. Texas, 339 U.S. 282 (1950); Akins v. Texas, 325 U.S. 398 (1945); Hill v. Texas, 316 U.S. 400 (1943); Smith v. Texas, 311 U.S. 128 (1940).
12 See, e.g., Larry Karson, The Implications of a Key-Man System for Selecting a Grand Jury: An Exploratory Study, The Southwest Journal of Criminal Justice, Vol. 3, No. 1 (2006), at www.utsa.edu/ swjcj/archives/3.1/Karson.pdf.
13 Smith, 311U.S at 130.
14 No one supporting the random selection system could seriously argue that it is a total panacea. Of course it can be improved, but it should as a matter of course provide more heterogeneous and less subjective results than the un-tailored key-man system.
15 See Tex. Code Crim. Proc. art. 19.27. But, as the Texas cases in the Supreme Court have demonstrated, constitutional challenges may still be raised on appeal.
16 Castenada, 430 U.S. at 497, n.18.