Understanding the Grand Jury System, Part 3: Perceived Flaws in the Texas Grand Jury System

In this last of a three part series on grand juries in the USA, Houston, Texas criminal attorney George Parnham explains a little understood part of our criminal justice system.

The United States is virtually the only common law jurisdiction in the world that continues to use the grand jury to screen criminal indictments, and the system is used on both federal and state levels. While all states in the U.S. currently have provisions for grand juries, only half of the states actually employ them and twenty-two require their use, to varying extents. Rather than using a grand jury, a more modern trend is to hold preliminary hearings before a trial court judge to determine probable cause that a defendant committed a serious felony.
 In Texas (and Harris County particularly), the Texas grand jury system has come under scrutiny with allegations of witness intimidation and cronyism.

Grand juries are held in secrecy for good reasons: witnesses may hesitate to appear and deliver honest testimony if they are on public record, and defendants who are accused but not indicted could suffer consequences simply for being exposed to the process. But questions of transparency go beyond the secret nature of the hearings; it is difficult to know how often people with potential conflicts of interest are appointed to grand juries, whether they are racially and economically diverse or if witnesses are intimidated because much of the proceedings and documents are confidential.
Texas law allows judges in its 254 counties to decide for themselves whether to have grand jurors chosen at random or selected by a "key man": a method frequently used by judges in Austin, Dallas and Houston.
Potential for abuse or manipulation increases as these judges do not select grand juries at random, instead  appointing a commissioner who often turns to retired friends or connections in the legal and law enforcement community to find jurors sympathetic to their own attitude.

This “key man” system, used only in Texas and California, has faced several legal challenges with allegations that it can foster favoritism and taint grand jury makeup.
Jurors are commonly drawn from particular segments of the community that may have strong ties with law enforcement officers, and may be more likely to enforce whatever the judge, prosecutor or officers say without proper scrutiny of facts. Texas defendants have challenged the racial composition of grand juries numerous times, and although the U.S. Supreme Court has upheld the constitutionality of the key man system they have warned that it is “highly subjective” and “susceptible of abuse.”

Understanding the Grand Jury System, Part 2: Inequities in the Grand Jury System

In this three part series on grand juries in the USA, Houston, Texas criminal attorney George Parnham explains a little understood part of our criminal justice system.

Grand Juries have recently made headline news in the USA after they have decline to indict police officers in cases which involved what many people consider unreasonable use of force.

On July 17, 2014, Eric Garner died in Staten Island, New York, after a police officer put him in a chokehold. Medical examiners concluded that Garner was killed by "compression of neck (choke hold), compression of chest and prone positioning during physical restraint by police", however the NYPD policy prohibits the use of chokeholds and law enforcement personnel contend that it was merely a "headlock".
On December 3, 2014 a grand jury decided not to indict officer Daniel Pantaleo, the NYPD officer accused of choking Garner to death. The event stirred numerous public protests and rallies with charges of police brutality. The Justice Department has announced an independent federal investigation.

On August 9, 2014 in the St. Louis suburb of Ferguson, Missouri, Michael Brown, an 18-year-old black man was fatally shot by Darren Wilson, 28, a white Ferguson police officer. The disputed circumstances of the shooting and the resultant protests and civil unrest received considerable attention in the U.S. and abroad, and sparked a vigorous debate about law enforcement's relationship with African-Americans, and police use of force doctrine in Missouri and nationwide.
The Prosecuting Attorney decided to bring the case in front of a grand jury to determine whether there was probable cause to indict Wilson for his actions. On November 24, it was announced that the jury had decided not to indict Wilson. Legal analysts raised concerns over the prosecutor's unorthodox approach, asserting that this process could have influenced the grand jury to decide not to indict, and highlighted significant differences between a typical grand jury proceeding in Missouri and Wilson's case.

Grand Juries almost always indict in criminal cases, with the common exception being cases which involve police officers. A recent Houston Chronicle investigation found that “police have been nearly immune from criminal charges in shootings” in Houston and other large cities in recent years. In Harris County, Texas, for example, grand juries haven’t indicted a Houston police officer since 2004; in Dallas, grand juries reviewed 81 shootings between 2008 and 2012 and returned just one indictment.


There are at least three possible explanations as to why grand juries are less likely to indict police officers; the first is juror bias, in that jurors may tend to trust police officers even when the evidence says otherwise. Second is prosecutorial bias; because prosecutors depend on the police while working on criminal cases, they may be inclined to present a less compelling case against officers.

A third possible explanation may simply be that prosecutors normally only bring a case to a grand jury if they think they can get an indictment. But in high-profile cases such as a police shooting, public pressure can force them to bring charges even if the case itself is weak.

The decisions by grand juries not to indict officers in these and other cases have spurred various proposals to reform grand juries. One measure being considered by Congress would require that in an alleged crime  involving a police officer, the governor would appoint a special prosecutor to conduct a public probable cause hearing that is open to the public. If passed, law enforcement would forfeit federal funding unless they adopt the new rules.
In Texas senators recently introduced bills to eliminate what is referred to as the "key man" or "pick-a-pal" system, requiring the courts to randomly summon jurors instead of allowing a district judge to pick three to five people to serve as grand jury commissioners, who are then charged with finding 30 prospective grand jurors and selecting 12 who qualify. Critics have long argued that grand jurors in Texas are often pulled from those with strong ties to the criminal justice system.
 Some of the current proposals may deserve consideration but they would have greater long-term impact and meaning if they improve transparency within the criminal justice system more generally, and are not limited to cases just involving police. 

Understanding the Grand Jury System, Part 1: Federal Grand Juries

In this three part series on grand juries in the USA, Houston, Texas criminal attorney George Parnham explains a little understood part of our criminal justice system.
In certain federal and state crimes, a grand jury is convened to review evidence and hear witness testimony in order to determine if an individual should be indicted. This process is a mystery to most defendants, and even many attorneys are unfamiliar with how to handle the grand jury process.

The "grand jury" was instituted in England about the middle of the twelfth century, intended to determine cause for criminal prosecution. Though originally intended to hold the local community responsible for bringing its malefactors to justice, it has come to be regarded over the centuries as a safeguard against unwarranted prosecution and was incorporated into the Fifth Amendment to the United States Constitution, which provides that "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger..."


Individuals subject to grand jury proceedings do not have a constitutional right to counsel in the grand jury room, nor do they have a right to confront and cross-examine witnesses. Additionally, individuals in grand jury proceedings can be charged with holding the court in contempt (punishable with incarceration for the remaining term of the grand jury) if they refuse to appear before the jury. All evidence is presented by a prosecutor in a cloak of secrecy, as the prosecutor, grand jurors, and the grand jury stenographer are prohibited from disclosing what happened before the grand jury unless ordered to do so in a judicial proceeding.

Grand jury proceedings are secret. No judge is present; the proceedings are led by a prosecutor; and the defendant has no right to present his case or (in many instances) to be informed of the proceedings at all. While court reporters usually transcribe the proceedings, the records are sealed. The grand jury can compel a witness to testify, but the target of a grand jury investigation has no right to testify or put on a defense.

The most persistent criticism of grand juries is that jurors are not a representative sampling of the community, and are not qualified for jury service because they do not possess a satisfactory ability to ask pertinent questions, or sufficient understanding of local government and the concept of due process. Unlike potential jurors in regular trials grand jurors are not screened for bias or other improper factors. They are rarely read any instruction on the law. The prosecutor drafts the charges and decides which witnesses to call, and is not obliged to present evidence in favor of those being investigated. The jurors job is only to judge on what the prosecutor produced.

According to the American Bar Association (ABA), the grand jury has come under increasing criticism for being a mere "rubber stamp" for the prosecution without adequate procedural safeguards. Critics argue that the grand jury has largely lost its historic role of protecting citizens from unfounded accusations by the government; they provide little protection to accused suspects and are much more useful to prosecutors.   Grand jurors often hear only the prosecutor's side of the case and are usually persuaded by them: they almost always indict people on the prosecutor's recommendation.

If you have been accused of a serious crime in the state of Texas, you need a reliable and experienced attorney. Visit http://www.parnhamandassociates.com for information on your rights.

Age Innapropriate: 17-year-olds are "teens", not adults deserving of prison time.

Age inappropriate: Texas must recognize 17-year-olds are teens, not adults deserving of prison time.

"In Texas, you have to be 21 to apply for a concealed handgun, 18 to play the lottery and 18 to get a body piercing without a parent's consent. Yet a nearly century-old Texas law treats a 17-year-old who shoplifts an iPhone as an adult criminal. He is held with adults in jail, tried in adult criminal court, sent to adult prison if incarcerated and issued a permanent adult criminal record. In 41 other states, such a youth would enter the juvenile justice system instead.

It's not just a question of whether 17-year-olds know the difference between right and wrong. Many teens that age have achieved the basic intellectual abilities of adults. With parental consent, 17-year-olds can enlist in the U.S. military. But according to behavioral research and brain science, the process of psychosocial maturation — in other words, development of the internal governor that compels us against engaging in risky behavior — is not complete until their adult years.

 Not only brain science but a slew of depressing statistics supports the common-sense notion that 17-year-olds merit different treatment than adults. Juveniles are five times more likely to be assaulted in adult rather than in juvenile facilities, often in the first 48 hours of incarceration, according to U.S. District Judge Reginald Walton, Chairman of the National Prison Rape Elimination Commission.
Youths under the age of 18 are 36 times more likely to commit suicide in adult institutions, says University of Texas professor Michele Deitch. Similarly, after their release, youths incarcerated in adult facilities are more likely to struggle to get a job or housing because of their adult criminal record.

The adult system does not offer the education, rehabilitative services or the strict probation rules that the juvenile system uses to hold younger teenagers accountable, reduce the likelihood that they will commit future crimes and help them turn their lives around. Interventions that incorporate substance-abuse treatment into community-based services and that emphasize school continuity may be particularly well suited to reduce recidivism among 17-year-olds, according to some experts. Most of the crimes committed by 17-year-olds are nonviolent misdemeanors.

Everyone knows that prison is often a school for crime, where hardened criminals mold young people by their example. It is counterproductive and cruel to impose the lifelong collateral consequences of the adult criminal system on 17-year-olds who might respond to rehabilitation. To remedy this inequity, the Legislature should expand the age of juvenile court jurisdiction to include 17-year-olds, except where special circumstances indicate adult-level supervision is required. Problems with implementation should not excuse inaction. Lawmakers can provide counties lacking juvenile facilities with the flexibility and funding to make alternative arrangements. Seventeen-year-olds are not children. But they aren't adults, either, and it's time Texas stops treating them as such. We shouldn't throw away the key on a life yet to be lived."

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The above editorial was published in the Houston Chronicle on Jan. 8, 2015.
Houston criminal attorney George Parnham has issued a response, stating that:

“I certainly do concur with the editorial opinion about raising the age of majority to at least 18.  Medical science has proven that the frontal lobe of the brain, that portion that is responsible for ‘connecting the dots’ relative to risk assessment and decision making, is not fully developed at the age of 17.  Ironically, the mid-twenties is more appropriate.  A 17 year old who takes a car belonging to someone else does that act in all probability for the thrill of “joy riding.”  Should that same car be taken by a 30 year old, the ultimate intent is to steal the car for one’s own use.  I applaud the recent changes brought by the Supreme Court in dealing with juveniles and the death penalty, as well as life without parole.  I would only hope that the State Legislature would follow the same impetus.”