Nov. 14, 2004, 4:11PM
|• Graphic: Grand jurors by profession.
HOW THEY'RE PICKED
A 1940 ruling by the U.S. Supreme Court requires that grand juries— the panels of citizens that decide whether criminal suspects will be indicted — represent "a broad cross-section" of the community.
But 64 years later, law enforcement officers and others with courthouse jobs that make them less likely to sympathize with a defendant are a strong presence on Harris County grand juries. And even though Hispanics make up a third of the county's population, only 9 percent of grand jurors are Hispanic, and most of those jurors are nonvoting alternates.
For example, four of the 12 grand jurors from the August 2004 262nd State District Court have ties to the local legal system. Two — including the foreman — are retired Houston police officers. One was a former administrator with the High School for Law Enforcement and Criminal Justice. Another had worked as a supervisor in the Harris County District Clerk's Office, the administrative office for criminal and civil proceedings.
The narrow variety of grand jurors came to light in a University of Houston-Downtown study conducted by criminal justice instructor Larry Karson, who reviewed 32 Harris County grand juries impaneled in 2002 and 2003, with further reporting by the Houston Chronicle.
Part of the problem is due to the selection process. Of Texas' five largest counties, only Harris, Travis and Tarrant still choose grand jurors exclusively through commissioners selected by the presiding judge, who often end up being his colleagues or employees, who then turn to their colleagues.
Of the 129 Harris County grand jury commissioners selected in 2002 and 2003, 65 — just more than 50 percent — were in some way linked to the area's legal establishment. The study identified those individuals as judges, attorneys, court employees, bail-bond agents, probation officers and law enforcement officers. One judge even selected three of his court employees as grand jury commissioners.
"It's not that (the commissioners) are intentionally conspiring or doing something bad," Karson said. "But it's not a fair representation of the community to have half of your grand jury commissioners come out of the court system."
Karson and others said that with Harris County's tough-on-crime reputation, it is especially important for all involved to appear fair and impartial.
"When you're indicting somebody for the ultimate crime for which we give the ultimate penalty, it's important that the system not just be fair but, in addition, look fair," said Murry B. Cohen, a respected former jurist who served on the state's 1st Court of Appeals before returning to practice law in June 2002. "The system should strive to avoid creating legitimate questions about its own legitimacy."
The study also found:
•During 2002 and 2003, at least one grand jury and one trial-court
jury operated in violation of state law by seating members who already
had served as a commissioner or juror more than once in the previous 12
•A Houston police officer served as a member of one of the grand juries that investigated the Houston Police Department crime lab scandal.
•Retirees frequently and repeatedly serve as grand jurors. Karson and Jim Brooks, a grand jury foreman who is a retiree, said older people tend to take the word of authority figures such as district attorneys more often than younger people do.
State District Judge Cliff Stricklin of Dallas County said that when he first assumed the bench, he used the commissioner system but has since gone to the jury-pool method, in which qualified individuals are chosen from the regular trial-court jury pool.
"I think it opens the doors to people who wouldn't normally even know about how to serve on a grand jury," said Stricklin, a Republican.
But in Harris County, the selection of grand juries remains tilted toward those connected to the system. Grand jury commissioners are selected by the 21 state criminal district court judges of Harris County, most of whom were career local prosecutors before becoming judges.
Most local judges contacted by the Chronicle were quick to defend the commissioner system.
"My grand juries, as a rule, have been very diverse, and I work very hard to find people who will serve from different neighborhoods and different socioeconomic backgrounds," said state District Judge Kent Ellis. "I think focusing on the commissioners is the wrong place to look."
State District Judge Bill Harmon didn't look that far. In November 2002, Harmon chose three employees of his court to serve as grand jury commissioners. He declined to discuss those selections with the Chronicle.
Though Harmon was the only Harris County judge to limit his choices to employees of his own court, most judges chose people connected to the system. That includes former state District Judge Ted Poe, who was just elected to Congress.
In February 2002, Poe's selections included Elaine Stolte, a former court employee who is now executive director of the Harris County Children's Assessment Center, a quasi-law-enforcement agency that deals with victims of suspected child abuse.
Poe also selected Judge Eva Guzman of the 14th Court of Appeals as a grand jury commissioner. She was one of only a handful of Hispanics to serve as a commissioner in 2002 and 2003.
Karson said several Hispanics were named to fill nonvoting alternate positions on grand juries.
"There also was not one Hispanic grand jury foreman," Karson said. "And then they try to give you the appearance of Hispanic participation by appointing them as alternates who don't vote."
But while Poe has no apologies for his commissioner selections, nor the use of the commissioner method of selecting grand juries, he was, nevertheless, surprised by the study's findings. And he said he thinks it would be a good idea to have a mix of the two selection methods.
Poe also would like to see an end to the practice of what he calls "grand jury shopping" by the District Attorney's Office. There are no restrictions on how many times prosecutors can present criminal allegations to as many grand juries as they need to obtain an indictment, he said.
"The District Attorney's Office should present cases to those grand juries in a lottery system. That's the fairest way for the defendant, the victim and the state."
But Andy Tobias, the grand jury coordinator for local prosecutors, said there is a rule in the District Attorney's Office prohibiting "jury shopping." He adds that the only time prosecutors go to a second grand jury is in cases where a police officer has been involved in a shooting and a prosecutor discovers that a law enforcement officer is a member of the initial grand jury.
That in-house rule, however, did not prohibit prosecutors from pursuing a capital murder indictment from a grand jury with a retired Houston police officer in a case involving a slain HPD officer.
In April 2003, Houston police officer Charles Clark was shot to death while responding to a robbery at a check-cashing store. Two men were subsequently charged with capital murder. One of the two has been convicted and sentenced to death. The suspects were indicted by a 262nd District Court grand jury that included former HPD officer Andy Geffert, who served as an aide to former Police Chief B.K. Johnson.
Similarly, HPD officer Ora L. Chandler, assigned to the physical abuse unit of the department's juvenile division, served as a member of the grand jury that investigated wide-ranging problems at the HPD crime lab, which sometimes processed her work.
Chandler said she was upset by the crime lab debacle and took a harsher view of it than did some other grand jury members.
"I don't think I was empathetic toward the crime lab workers," Chandler said.
Although there is nothing statutorily improper with police officers sitting on grand juries that investigate police matters, there are specific restrictions about how frequently grand jury members can serve.
State law prohibits any person from serving as a grand jury commissioner and/or grand juror more than once in 12 months.
But during the two years on which the UH-DT study focused, at least one Harris County grand jury and one group of grand jury commissioners were impaneled despite violations of that rule.
In August 2003, Sgt. Cindy Vara of the Precinct 1 Constable's Office served in violation of the statute when she was appointed as a commissioner by state District Judge Don Stricklin after having been a commissioner for state District Judge Carol Davies in November 2002.
Likewise, in August 2002, Xavier Pulido, a Harris County adult-probation officer, was selected as a grand juror by state District Judge Paul Murphy after having served as a grand jury commissioner in February 2002 for state District Judge Susan Brown.
Both Pulido and Vara told the Chronicle they could not recall exactly when they served, and neither was aware of any possible conflict with state law.
Pulido and Vara are not the only grand jurors and commissioners to frequently serve. County grand jury records are brimming with examples of citizens who are repeatedly named as grand jurors and commissioners year after year.
State District Judge Mike Anderson, who presides over the 262nd court, says he is proud of his choice of grand jurors, and he singled out former officers Geffert and Massey as men of great integrity. Anderson also points out that, considering the amount of time involved in serving, it's not easy to find people to sit on a grand jury.
"There's not a huge contingent of people who want to do this," Anderson said.
He said, however, he would not be opposed to looking at the possibility of Harris County using some sort of mix of the commissioner and jury pool methods of selecting grand juries in order to get panels more representative of the community.
"I don't have all the answers, and I'm all about learning," Anderson said.
As for jurors or commissioners serving too often, the head of the district attorney's appellate division said the violations are without consequence if the criminal cases involved already have been adjudicated.
"If we're talking about indictments handed down some period of time ago, and those cases have already been disposed of, it's too late to complain about it," Assistant District Attorney Bill Delmore said.
But Troy McKinney, a recent past president of the Harris County Criminal Defense Lawyers Association, said the way grand juries operate in Harris County is "unconstitutional."
"The grand jury is supposed to be a buffer between the state and the citizenry to prevent abuses," McKinney said.
"But (the judges and prosecutors) just make up the rules that they think make it the most expedient for them, regardless of whether it complies with the law or not."
Tobias acknowledged that he used to forward the names of people who wanted to serve on grand juries directly to courts. He says he now tells such volunteers to call the courts themselves.
In January, state Sen. John Whitmire, D-Houston, plans to hold hearings into problems at both the HPD and Texas Department of Public Safety crime laboratories. He said he also would like to take a look at some of the concerns about the grand jury system.
"I want to throw this into our hearings and just pull some district attorneys and judges in there and ask them to explain it to us," Whitmire said. "There needs to be some transparency to the system."