In light of the fact that the Ferguson grand jury is likely to render its decision in the near future, I thought I would offer some links to sources that provide background information on grand juries.
As of late, Texas grand juries have been under a lot of criticism so much so that State Senator John Whitmire has introduced legislation (SB 135) to modify how grand jurors are selected. If SB 135 becomes law, district judges would select grand jury panels instead of a commissioner. Many felt that the panels selected by commissioners were too homogeneous.
Most of us are aware of social media's influence on petit jurors. Who hasn't heard about attorneys using social media to investigate jurors or jurors using social media to contact each other or third parties? What is less known is the influence of social media on grand jurors. This is due primarily to the fact that grand jurors are sworn to secrecy. Thus, little is known about what happens once those grand jury doors are closed.
Well, it appears everything that occurs in the grand jury room does not necessarily stay in the grand jury room. There are media reports that one grand juror leaked information about the current Ferguson, Missouri investigation. This leaked information (not enough evidence to indict the police officer) was subsequently tweeted before being taken down. However, we all know that once something is put out on social media it is next to impossible to complete remove it.
At one time in this country's history the grand jury exercised independent judgment and was held out as a bulwark protecting citizens from overzealous prosecutors. This is one of the reasons why the Right to Grand Jury was enshrined in the 5th Amendment of the U.S. Constitution.
Well, those days are long gone and are unlikely to return any time soon. Today's grand jurors rarely if ever exercise independent judgment and as illustrated by the article below now basically serve as adjuncts of the prosecution. This in turn raises the question of whether society even needs grand juries. I have long argued that if we are going to have grand juries then they need their own legal advisor. They can't rely on the prosecutor who has a vested interest in the outcome of the case.
Last week Harris County grand juries were in the media spotlight. Below are two hyperlinks to newspaper articles that examined some questionable grand jury practices in Harris County, Texas where Houston is located. In my opinion, the two most disturbing aspects of the Harris County grand jury process are the use of the (1) shooting simulator; and (2) the selection process.
Shooting Simulator: During grand jury orientation, grand jurors are provided a virtual simulation experience in which they play the role of a police officer confronting a suspect. Many believe that this firearms simulator training has led to grand juries clearing the Harris County Police Department in 288 consecutive shootings.
Selection Process: The state of Texas permits two methods of selecting grand juries. The first relies on random selection. The second uses commissioners. Under the second method, which is commonly used in Harris County, the local district judge appoints between three to five commissioners who pick certain people from the community to become potential grand jurors. The judge then questions these prospective grand jurors and selects 12 with two alternates. Not surprisingly, this second method does little to ensure that grand juries will be diversified or representative of the community.
To read more about Harris County grand juries go here and here.
In 1999, a Boulder County Grand Jury issued a True Bill charging the parentsof JonBenet Ramsey with Child Abuse Resulting in Death. However, the prosecutor, who presented the evidence to the grand jury, declined to sign the True Bill; therefore, the parents were never indicted. The prosecutor stated that "I and my prosecutorial team believe we do not have sufficient evidence to warrant the filing of charges against anyone who has been investigated at this time." To read the True Bill, which is only four pages, go here. To read more about the story go here.
Here is an interesting story about what can happen when citizens are allowed to empanel grand juries-a role traditionally reserved to the prosecutor. At least six states permit its citizens, if they gather enough signatures, to empanel a grand jury. While this may sound like a good idea in theory, e.g., to fight government corruption, it has the potential to become a political tool.
In one example, a group was able to get enough signatures (2% of the registered voters in the county) to investigate a bronze sculpture in the Overland Park Arboretum. According to those who convened the grand jury, the sculpture is obscene. While some may see this is as direct democracy in action, others like the author of the article view it as "legalized mob justice." To date, Overland Park officials have had to expend significant resources to defend the sculpture from criminal charges.
As the blog BLT indicates, the legal saga involving an improperly dismissed grand juror has finally come to an end. The U.S Court of Appeals for the D.C. Circuit has ruled that Peter Atherton cannot sue a prosecutor and a court official for improperly dismissing him from a grand jury.
This case arose from Atherton's service as a grand juror. Atherton claimed that the prosecutor who brought charges before the grand jury had him removed because he asked too many questions. The prosecutor claimed that Atherton was being disruptive and failed to follow instructions. Atherton argued that he could only be removed by a judge, not the prosecutor. The appellate court ultimately determined that the prosecutor and another court official had qualified immunity and the issue about who could remove a grand juror was unclear at the time of Atherton's dismissal.
Although Atherton's suit was ultimately dismissed, his case has led to a new court rule that requires judicial consultation prior to the removal of any grand juror in D.C. Superior Court. His case also might give prosecutor's second thoughts about how they treat grand jurors and the grand jury process as a whole.