before the Texas Senate Committee on Criminal Justice
in support to SB 135
March 21, 2015
I am the Founder and President of the Constitution Society, website at http://constitution.org. I urge the Texas Legislature to adopt SB 135, to require all grand juries be selected at random rather than through the “key man” procedure in use in some countries.
This committee may, however, amend this bill, to take it in a more constitutional direction, to provide that grand juries comply with all of the following traditional standards for proper grand juries:
- Selected at random from the general public, with perhaps some filtering, but without "stacking".
- Selection by a neutral party (not the judge or prosecutor).
- Size of 23.
- Decision by 12.
- Election of foreperson by the members.
- Term of service long enough to learn how to do it.
- Limits on terms of service to avoid entrenchment.
- Adequate training of grand jurors.
- Prevention of undue influence by interested parties, especially judge or prosecutors.
- Secrecy of grand jury deliberations, while they are going on, but with allowance of disclosures in their presentments.
- Enough time to examine each case, or enough grand juries.
- No impediment to access by public to members to present complaints or give testimony, except for reasonable scheduling.
- Acceptance of any person, not just a professional prosecutor, being appointed to prosecute a case by the grand jury granting him an indictment.
- Acceptance that a grand jury indictment removes official immunity from criminal prosecution.
- Acceptance that a grand jury finding of sufficient evidence of misconduct removes official immunity from civil prosecution.
- Establishment of rule that a grand jury must determine whether a court has jurisdiction before returning an indictment for that court.
- Avoidance of excessive or abusive use of grand jury to harass, intimidate, discredit, or injure persons.
- Prevention of misuse during trials of evidence obtained by grand jury.
I urge this committee to amend this bill as outlined above.
Grand Jury Reform http://www.constitution.org/jury/gj/gj-us.htm
Midland Reporter-Telegram: http://www.mrt.com/news/article_8b11b140-d047-11e4-869d-9f998c2c990d.html
Here are a few links of interest:
Here’s an excerpt from a recent Wall Street Journal report on a Bowling Green study of police shootings: http://www.wsj.com/articles/police-rarely-criminally-charged-for-on-duty-shootings-1416874955
New research by a Bowling Green State University criminologist shows that 41 officers in the U.S. were charged with either murder or manslaughter in connection with on-duty shootings over a seven-year period ending in 2011. Over that same period, the Federal Bureau of Investigation reported 2,718 justified homicides by law enforcement, an incomplete count, according to experts.
FiveThirtyEight collected a broader array of statistics on the prosecution of police for use of excessive force: http://fivethirtyeight.com/datalab/allegations-of-police-misconduct-rarely-result-in-charges/ . They confirm that police being tried for shooting a suspect in the line of duty is a rare occurrence.
Tennesee v. Garner, 471 U.S. 1 (1985) which held that:
§ This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. . . .(3)
The first journalist to pick up this problem with Lawrence O’Donnell of MSNBC, himself a former prosecutor: http://www.msnbc.com/the-last-word/watch/shocking-mistake-in-darren-wilson-grand-jury-364273731666 . As O’Donnell explains with quotations from the transcript, the grand jury was given a copy of the law at the start of their consideration of the Wilson case, then told at the end that a Supreme Court decision had “created problems” with that law. Then, the grand jurors were told to ignore the Missouri law – but given no other standard to use in assessing whether the use of deadly force was lawful.
According to the source of all knowledge (Wikipedia), 29 states still “employ some form of use grand jury.”
According to the Survey of Court Organization (http://cdm16501.contentdm.oclc.org/cdm/ref/collection/juries/id/180), 18 states require indictments for felony prosecutions, but most states do have grand juries for at least some purposes (presumably, in some states prosecution can flow from either a grand jury indictment or alternatively at the sole discretion of the prosecutor through an information).
Grand juries usually have to decide by a 2/3rds or 3/4ths vote – unanimity (as far as I know) is nowhere required. In the Ferguson case, the grand jury had 9 whites and 3 blacks with a ¾ voting rule. The vote was secret but obviously it was numerically possible for the grand jury to block a “true bill” with only white votes.
Federal Rules of Criminal Procedure, Rule 6 governs federal grand juries:
http://www.law.cornell.edu/rules/frcrmp/rule_6 . In the federal system, one needs 12 jurors to return a “true bill” but the number of jurors on a panel can vary between 16 and 23. As Jim rightly notes, jurors cannot be screened out of a panel in advance for conflicts of interest with particular cases – they are empaneled to hear months of cases at a time. That said, the federal system permits challenges to individual jurors who are not “legally qualified” to sit on the grand jury.
How grand juries are selected at the state level depends on state law which varies widely:
- For example, Texas alone has two different systems for grand jury selection: http://www.tdcaa.com/journal/lone-star-grand-jury-selection-and-independence
- The Missouri process seems to envision construction of a master list http://civilprocedure.uslegal.com/trial/jury-selection/missouri-jury-selection/ from which the jurors in Missouri are chosen by a judge. http://www.thewire.com/business/2014/08/what-to-expect-at-tomorrows-grand-jury-in-the-michael-brown-case/378777/ . The Missouri rules indicate that no juror may be disqualified from serving “because of race, color, religion, sex, national origin, or economic status” which seems to imply that there could be challenges under this legal standard.
The Ferguson grand jury was unusual because the proceedings were made public. Grand jury testimony is usually secret, and any grand juror can be prosecuted for disclosing grand jury testimony. This is one reason why we know so little about how grand juries operate. In virtually all cases, no one is talking.
On DA elections: This really useful paper by Ronald Wright at Wake Forest http://moritzlaw.osu.edu/students/groups/osjcl/files/2012/05/Wright-FinalPDF.pdf summarizes what is and is not known about DA elections. Here are some re-election figures:
The chief prosecutors in the 2,344 separate prosecutorial districts in the United States hold very secure jobs. We can begin with the success rate of incumbents across all general election races: the sitting prosecutors won 71% of the general elections. The more pertinent number, however, is the success rate of incumbent prosecutors in elections when they seek re-election. Because the incumbent sought re-election in only 75% of all general election campaigns, the incumbent success rate when running for office was 95%.