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.”