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.