Jason Bennyhoff
The law on grand juries doesn’t change often, but it did recently. Here’s an update on such proceedings and how to remedy what might go wrong with them.
Grand jury practice can be a particularly unsexy portion of the prosecutorial practice of law because it generally changes little and nothing usually goes wrong. But what if something does change or something does go wrong? The 84th Texas Legislature passed changes to grand jury practice, and although not terribly common, problems do occur in these proceedings. This article is designed to update practitioners on the most recent changes and give helpful examples of what can go wrong, along with suggestions on how to remedy those issues.
The most recent legislative changes
The most notable change to grand jury practice was the elimination of the “key man” system of selecting grand jurors.1 House Bill 2150 eliminated this option, which allowed the judge to select grand jury commissioners, who would then select members of the community to appear as potential grand jurors. The key-man system was repealed, requiring courts to use the only remaining option of the “wheel” or “cattle call” system, wherein grand jurors are selected at random from the community in the same manner as for civil trials.2
Article 19.26 of the Code of Criminal Procedure was amended to reflect the elimination of the key-man system in that it now requires that grand jurors be selected at random from the county’s jury wheel. However, this section also allows the judge to adjust the grand jury’s composition if the first 16 people selected at random from the community do not represent a fair cross-section of the population.3 The statute has been amended to allow the judge charged with impaneling the grand jury to “select” grand jurors from a fair cross section of the population.4 The statute previously read that if “14 qualified jurors are found to be present, the court shall proceed to impanel the grand jury.”5 Interestingly, this change would seem to fail to alleviate the concerns of those who opposed the previous key-man system in that it still allows for the impaneling judge’s intervention—most complaints about the key-man system related to the judge’s perceived ability to influence the grand jury process by selecting the commissioners. One can hardly help but wonder if this procedure will someday be subject to the same complaints.
Article 19.31 was amended to add several specific challenges for cause to a potential grand juror,6 and Article 19.315 was added to require a grand juror to recuse himself when he could be subject to a challenge for cause under Article 19.31 until the reason for the recusal no longer exists.7
What could possibly go wrong?
Several issues can and do arise in grand jury practice. What happens when a disqualified person serves on a grand jury? What happens when someone who was originally qualified later on does something to bring her qualifications into question? What happens if a defendant claims that the grand jury that indicted him was composed in a racially discriminatory manner? These are issues that have arisen in the past and for which caselaw provides guidance.
Grand juror qualifications. First ask, “What constitutes a disqualifying event?” Article 19.08 of the Texas Code of Criminal Procedure requires a grand juror to:
1) be a citizen of the state and county in which the person is to serve,
2) be of sound mind and good moral character,
3) be able to read and write,
4) not have been convicted of misdemeanor theft or a felony,
5) not be charged with misdemeanor theft or a felony,
6) not be related within the third degree of consanguinity or second degree of affinity to any person selected to the grand jury,
7) not have served as a grand juror within the previous year, and
8) not be a complainant in any matter to be heard by the grand jury. If a potential grand juror cannot meet these qualifications, then he is disqualified from grand jury service.8
But what, you ask, happens if a disqualified person serves on the grand jury? As any appellate lawyer will ask you, “Has the issue been waived?” “A challenge to the array of jurors or to any person presented for grand jury service must be made before the grand jury is empaneled.”9 Where a disqualified person serves on a grand jury, the defendant will waive any objection to a subsequent indictment issued by that grand jury unless he objected to the array before the disqualified person was seated on the grand jury.10
This rule seems clear enough in theory, but there is language in several decisions that suggests that a defendant may raise a complaint about the qualifications of a grand juror by way of a pre-trial motion to quash the indictment, and this has occurred in numerous scenarios.11
In Mullings v. State, the 11th Court of Appeals examined whether the officers of a nonprofit corporation, which was alleged to have been the victim of a crime, were themselves complainants and therefore disqualified from serving as grand jurors in that case.12 The court decided that the officers were not disqualified under Article 19.08 of the Code of Criminal Procedure.13
In Howard v. State, the 9th Court of Appeals considered whether a grand juror, who was qualified when impaneled, became disqualified after moving out of the county during the grand jury’s term.14 The court held that the grand juror’s move across county lines did not disqualify him but explicitly declined to touch on whether any other action might disqualify him (i.e., being convicted of a crime).15
Unlike many grand jury issues that have been rarely, if ever, contested, whether a grand jury is composed of members representative of the community has been extensively litigated. “Every criminal defendant is entitled to be indicted by a grand jury whose members have been selected in a non-discriminatory manner.”16 To make a successful challenge to a grand jury based on its members having been selected in a racially discriminatory manner, the movant must establish that the grand jury that indicted him was so composed, not just that prior grand juries in the same county were composed of non-representative members.17 “Only if the [movant’s] class is substantially underrepresented on the indicting grand jury does the makeup of prior grand juries become relevant to explain whether this underrepresentation on the indicting grand jury is a statistical accident or the result of purposeful discrimination.”18 The movant will also have to show evidence of the racial composition of the members of the county in which he is indicted to establish that the composition of the grand jury was not representative of the county.19
A defendant may obtain federal habeas relief on the grounds that his due process rights were violated by virtue of the racial composition of the grand jury that indicted him if he can:
1) establish that the group against whom discrimination is asserted is a recognizable, distinct class singled out for different treatment;
2) prove that the group has been underrepresented over a significant period of time; and
3) support the presumption thus created by showing that the selection process is susceptible to abuse or is not racially neutral.20
Conclusion
Though some areas of grand jury practice remain unlitigated, others have clear direction from caselaw and recent legislative changes. Please feel free to contact me if I can be of any assistance, and have fun making new law if you get the chance to litigate a grand jury issue.
Endnotes
1 Tex. Code Crim. Proc. Art. 19.01, effective Sept. 1, 2015 (HB 2150, §1).
2 Id.
3 Tex. Code Crim. Proc. Art. 19.26, effective Sept. 1, 2015 (HB 2150, §8).
4 Id.
5 Tex. Code Crim. Proc. Art. 19.26, acts 2003, 78th Leg., ch. 889, §1, effective Sept. 1, 2003.
6 Tex. Code Crim. Proc. Art. 19.31 adds challenges for insanity, various medical conditions, being a target of a grand jury investigation, etc., effective Sept. 1, 2015 (HB 2150, §10).
7 Tex. Code Crim. Proc. Art. 19.315 enacted effective Sept. 1, 2015 (HB 2150, §11).
8 Tex. Code Crim. Proc. Art. 19.08.
9 Caraway v. State, 911 S.W.2d 400, 401 (Tex. App.—Texarkana 1995, no pet.), citing Tex. Code Crim. Proc. art. 19.27.
10 Id.
11 See, e.g., Ex parte Covin, 277 S.W.2d 109 (Tex. Crim. App. 1955) (stating, albeit in dicta, that grand juror’s lack of qualifications could be raised by motion to quash); Mullings v. State, 917 S.W.2d 334, 336 (Tex. App.—Eastland 1996, pet. dism’d as improvidently granted) (assuming without deciding that complaint that grand juror was a complainant could be heard by way of pre-trial motion to quash the indictment); Acosta v. State, 640 S.W.2d 381, 383 (Tex. App.—San Antonio 1982, habeas relief granted, jdgm’t vacated on other grounds by 672 S.W.2d 470) (“Challenge to the array may be by a motion to quash the indictment before trial”).
12 Mullings, 917 S.W.2d at 336.
13 Id.
14 Howard v. State, 704 S.W.2d 575, 579 (Tex. App.—1986, no pet.).
15 Id.
16 Espinoza v. State, 604 S.W.2d 908, 909 (Tex. Crim. App. 1980).
17 Id. at 909-10.
18 Pimentel v. State, 710 S.W.2d 764, 777 (Tex. App.—San Antonio 1986, pet. ref’d).
19 Evans v. State, 656 S.W.2d 65, 66 (Tex. Crim. App. 1983).
20 Enriquez v. Procunier, 752 F.2d 11, 115 (5th Cir. 1984).