Posted on
May 9, 2013 in
One of the few great virtues of American criminal justice is that it is committed in the light of day. Courts are open to the public, and generally—not always; anonymous juries are becoming more common, which ironically means that the terrorists have won—the accused gets to know who is judging him. In any case, he gets some say, through the process of jury selection, in who judges him.
He doesn’t get any say in who makes the accusation against him, but in Texas, where there is a constitutional right to be tried on a grand-jury indictment, he can at least know who the grand jurors were.
Article 19.08 of the Texas Code of Criminal Procedure lists the qualifications for a grand juror:
1. The person must be a citizen of the state, and of the county in which the person is to serve, and be qualified under the Constitution and laws to vote in said county, provided that the person’s failure to register to vote shall not be held to disqualify the person in this instance;
2. The person must be of sound mind and good moral character;
3. The person must be able to read and write;
4. The person must not have been convicted of misdemeanor theft or a felony;
5. The person must not be under indictment or other legal accusation for misdemeanor theft or a felony;
6. The person must not be related within the third degree of consanguinity or second degree of affinity, as determined under Chapter 573, Government Code, to any person selected to serve or serving on the same grand jury;
7. The person must not have served as grand juror or jury commissioner in the year before the date on which the term of court for which the person has been selected as grand juror begins;
8. The person must not be a complainant in any matter to be heard by the grand jury during the term of court for which the person has been selected as a grand juror.
Only by knowing who the grand jurors are can the accused know that they have overcome these low hurdles. Fortunately, under Texas Code of Criminal Procedure Article 19.42 grand jurors’ names are a matter of public record:
Art. 19.42. PERSONAL INFORMATION ABOUT GRAND JURORS.
(a) Except as provided by Subsection (b), information collected by the court, court personnel, or prosecuting attorney during the grand jury selection process about a person who serves as a grand juror, including the person’s home address, home telephone number, social security number, driver’s license number, and other personal information, is confidential and may not be disclosed by the court, court personnel, or prosecuting attorney.
A bloated senator from Wichita Falls, Craig Estes, would change that, amending Article 19.42 to make the names of grand jurors secret, revealable only on a showing of good cause. Estes’s bill has passed the Senate, and is up for hearing on Monday in the House.
Estes styles himself a “conservative”; I don’t think that word means what he thinks it means: there is nothing conservative about turning grand juries into star chambers.
Aside from the effect on the accused’s ability to ensure that he has been indicted by a lawfully composed grand jury, there’s the little matter of the public’s right to know what its government is doing. If Estes has his way and grand jurors are allowed to go to work disguised with hoods (quick: in your mind, are those hoods black or white?) stories like this one will never come to light.
It is my understanding that District Attorney Anderson pushed this bill because you outed him and his wife last year….
I went to Austin yesterday to testify against this bill. I was shocked to see how unrepresented the defense bar is generally at the Legislature. Government lawyers that are paid by the hour are for the most part all that appear to testify at these hearings. Needless to say most of those lawyers are State's lawyers or they work for an agency of the State. The prosecutor who was pushing this bill claimed all defense attorneys agreed with this bill. I can't understand how that could be possible, but maybe it is true. This is a bill that allows a body that has immunity in everything they do the ability to do their tasks in absolute secrecy. The public has no right to know that a particular judge selects the same grand jury foreman for more than every other of his/her grand juries. If there is an agenda, nobody will ever know. Maybe we get what we deserve.
Mr. Leitner:
I viewed the testimony on SB834 from May 13. Your testimony was exactly "on point" and correct. What was unsaid, but probably should have been, is that the grand juror who knows that his name is public or subject to disclosure would be guarded against political pressure to indict for improper purposes.
However, more importantly, at least for me, is to point out that Rep. Carter's statement that both the TDCAA and the Texas Defenders Service supoported this bill. The "Texas Defender Service" aka "Texas Resouce Group," is a small capital assistance reource group with a grant from the George Soros Foundation that has been activly involved with the legislature this year. Their lobbyist actively lobbied for and promoted the reciprocal discovery bill for the defense. They are now supporting making grand jurors names secret. The impression that is left with some in the legislature is that the are speaking for the criminal bar of Texas. They do not speak for TCDLA.
Additionally, TCDLA and HCCLA were in complete agreement on opposing the reciprocal discovery bill that was supported by the TDCAA, individual DA's and TDS. The TCDLA and HCCLA members were successful in blocking a reciprocal discovery provision in the SB1611 that waits for the governor's signature.
TCDLA believes that its opposition to SB834, the Grand Jury bill, will not be voted out this session. Your testimony was powerful, appreciated and effective.
Regards,
Bobby Mims – Tyler
I take it that in Texas you are not granted full citizenship rights upon the end of a sentence? Being formerly convicted apparently keeps you off a grand jury in Texas from the way it reads. I guess if you have never been caught or indicted, then you are not a sinner? <cackles> Ric
Bobby, I'm not sure what you're talking about but the Texas Defender Service opposed the bill while TCDLA remained on the sidelines, see the Senate witness list. I'm glad y'all showed up on the House side, but I'm not surprised that Leitner was "shocked to see how unrepresented the defense bar is generally at the Legislature." This is my 8th session and as long as I've been going to the capitol the defense bar has been poorly represented. You should thank your stars for the Texas Defender Service or at least doublecheck before you misrepresent their position on bills. I confirmed you were wrong in about 30 seconds on the capitol website.
Scott (Grits):
I do not want to get into some online discussion with you but you are incorrect. If you had taken 11/2 hours to watch the video of the testimony on SB 834 you would have viewed not only Mr. Leitner's testimony and that of TCDLA Allen Place testimony on the bill. The Texas Defenders Service supported this bill that would have made the names of grand jurors secret. Rep. Carter advised that the bill was supported by the TDS.
I am thankful for the help of TDS when they are right on legislation. Unfortunately, we have disagreed with them on Grand Juror names being made secret and on reciprocal discovery.
SB 834 is not likely to be passed out of committee and Gov. Perry signed the Michael Morton act sans reciprocal discovery actively lobbied for by TDS and their lobbyist. But for the efforts of TCDLA lobbyists the criminal defense lawyers of Texas would be required to provide witness lists, witness statements and notice of defenses to prosecutors.
That is pretty effective representation. I commend the web video of the SB834 hearing for your edification.
Regards,
Bobby Mims