Intern, Center for Effective Justice
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Daniel Moore | July 30, 2018
During the 2015 legislative session, Texas lawmakers made some changes to the State’s grand jury system. A major change included ending the controversial “pick-a-pal” system, which was criticized for allowing people with conflicting interests to be tapped as jurors. When lawmakers returned to Austin in 2017, grand jury reform bills that would have protected against overzealous prosecution ran out of time and failed to become law. When the Legislature convenes next January, more reforms are necessary to restore the grand jury to the safeguard that the Founding Fathers intended it to be.
It is often said that a prosecutor could get a grand jury to indict a ham sandwich. This is largely because a grand jury receives the facts of the case solely from the perspective of the State. A simple but necessary reform that Texas lawmakers should consider is requiring prosecutors to share exculpatory evidence with grand juries. While Texas requires such evidence be presented later in the criminal justice process, it should require this provision during grand jury proceedings, as well.
Unlike a trial, a grand jury is not considered adversarial. The purpose of a grand jury is to decide if probable cause exists for prosecution. Conviction requires proof beyond a reasonable doubt.
Under Texas law, neither the accused nor witnesses may have an attorney present during grand jury proceedings. Texas should give them a reasonable amount of time to find an attorney, and allow attorneys to merely advise, but not address, the grand jury. In states that have already adopted these reforms, both prosecutors and defense attorneys view the changes favorably. Both sides agree that these changes have strengthened the administration of justice, as the intricacies of the proceedings are better understood.
Imagine being forced to testify as a witness and repeatedly being threatened by the State with the possibility of jail time and your children being taken from you if you keep telling the truth—as was the case of Ericka Dockery. She initially opted for the truth, and as a result, spent 120 days in jail. A prosecutor was convinced that Ericka was lying and charged her with perjury. She was released from jail only after she agreed to recant and testify against the defendant in his trial while initially testifying for the defendant before the grand jury. Seven years after the conviction, the defendant was acquitted when evidence was found in a detective’s garage that upheld Ericka’s testimony during the grand jury proceedings.
Consider these reforms in light of Ericka’s case. Allowing grand jury witnesses to be advised by an attorney would alert them of their rights, and a requirement to present exculpatory evidence would help restrain government abuse.
These reforms will move Texas away from the idiom that grand juries indict ham sandwiches and help restore a system that has proper procedural roadblocks in place.