How Are Grand Jurors Selected

By | December 8, 2014


Recent Grand Jury Decisions

On August 9, 2014, Officer Darren Wilson of the Ferguson, Missouri police department told Michael Brown and his friend Dorian Johnson to walk on the sidewalk instead of down the middle of the street. From that allegedly followed an altercation.

Ultimately, Officer Wilson fatally shot Michael Brown.

On November 24, 2014, the prosecuting attorney for St. Louis, Missouri announced that the grand jury had decided not to indict Officer Wilson for his actions.

On July 17, 2014, Eric Garner was allegedly selling “loosies,” which are single cigarettes from packs without tax stamps. When NYPD officers Justin Damico and Daniel Pantaleo went to arrest Mr. Garner, Officer Pantaleo put a chokehold on Mr. Garner. NYPD policy prohibits the use of chokeholds. The video of this event clearly shows Mr. Garner saying “I can’t breathe” several times.

Mr. Garner died as a result of the chokehold.

On December 3, 2014, a grand jury decided not to indict Pantaleo.

Many questions arise from these incidents, among them “why did these two black men die at the hands of white officers over such insignificant alleged offenses?” and “how could the grand jury fail to indict either of these officers?”

Obviously I don’t know what went on in the secret deliberations of the grand juries in Missouri and New York.

I do know about the grand jury process as I experienced it as an Assistant District Attorney in Travis County, Texas.

The grand juries with which I dealt often were composed of well-intentioned, very pro-law enforcement, relatively wealthy individuals. They weren’t always very pro-law enforcement.

They weren’t always wildly rich. But they were devoting hours of their time for very little compensation, so they had to be comfortable enough with their earnings that they could take many hours each week away from their work.

Some grand juries were so pro-law enforcement oriented that those of us Assistant D.A.s who worked in the grand jury division of the District Attorney’s office referred to them as “ham sandwich” grand juries. By that we meant “that grand jury would indict a ham sandwich of murder if we asked them to.”

We didn’t take cases to “ham sandwich” grand juries when those cases required careful thought and sincere consideration of the possibility of not indicting someone.

Mind you, just because a grand jury will think carefully and sincerely consider not indicting someone doesn’t mean they weren’t still very pro-law enforcement.

So the question is: how are grand jurors selected?

Article 19.01 of the Texas Code of Criminal Procedure sets out two ways in which grand jurors may be selected.

The first is to appoint not less than three, nor more than five people to act as grand jury commissioners. Their job, under article 19.06 is to select anywhere from 15 to 40 people from the county to be summoned as grand jurors. The commissioners shall, to the extent possible, select grand jurors who the commissioners determine represent a broad cross-section of the population of the county, considering the factors of race, sex, and age.

The second way to select grand jurors is that a district judge may direct that 20 to 125 prospective grand jurors be selected and summoned in the same manner as for the selection and summons of panels for the trial of civil cases in the district courts. The judge shall try the qualifications for and excuses from service as a grand juror and impanel the completed grand jury in the same manner as provided for grand jurors selected by a jury commission.

The first way, in my experience, was always how grand jurors were selected. One District Judge told me that grand jury commissioners were typically former grand jurors, who would ask a friend if they would like to possibly serve on a grand jury, and that they would typically warn them of the financial hardship that comes with the job.

So the very pro-law enforcement former grand jurors are selecting the future grand jurors.