The grand jury is a mysterious concept: it’s a group of ordinary citizens who weigh in on a criminal case, but the work they do is secret. According to Texas law, the only people allowed in the room during grand jury proceedings are grand jurors, bailiffs, the prosecutor, the witness being examined, and—under certain circumstances—an interpretor, a stenographer, or a person to allow a witness to testify via videoconferencing. Except under rare circumstances, the results of the proceedings are not public record.
The job that a grand jury is tasked with, though, is rather clear: As the Harris County District Courts explain on their website, where they encourage citizens to apply to serve as grand jurors, “A grand jury consists of twelve people whose job is to review criminal complaints and decide if there is sufficient evidence to issue an indictment. The standard of proof for an indictment is probable cause.”
In other words, the prosecutor’s job is to bring a case to a grand jury when he or she believes that that there’s cause for an indictment; the grand jury’s job is to determine whether the prosecutor’s case is as strong as she thinks it is. Grand juries, ultimately, are a check on the state’s ability to prosecute.
Except, as a stunning two-part series in the Houston Chronicle by reporter Lisa Falkenberg revealed, that’s not always the way grand juries operate. Falkenberg examined a case that was entered into the public record by appeals attorneys for a witness whose experience being questioned by the grand jury ultimately resulted in criminal charges for herself. What she found was a striking example of grand jurors actively collaborating with prosecutors to apparently intimidate a witness into telling them the story about the suspect that they wanted to hear. The examples from Falkenberg’s report are shocking:
They seemed convinced that Ericka Jean Dockery’s boyfriend of six months, Alfred Dewayne Brown, had murdered veteran Houston police officer Charles R. Clark during a three-man burglary of a check-cashing place, and they didn’t seem to be willing to believe Dockery’s testimony that he was at her house the morning of the murder.
“If we find out that you’re not telling the truth, we’re coming after you,” one grand juror tells Dockery.
“You won’t be able to get a job flipping burgers,” says another.
Later on, grand jurors partner with the prosecutor to offer TV-style zingers to Dockery:
At first, the fact that Dockery seemed to be “a good, nice, hard-working lady,” in the words of one grand juror, gave her credibility with the group. But jurors soon seized on her vulnerabilities and fear.
“Hey, Dan,” the foreman calls to the prosecutor. “What are the punishments for perjury and aggravated perjury?”
“It’s up to 10 years,” Rizzo responds.
“In prison. OK,” the foreman says.
“Oh no,” says another grand juror as if on cue, echoing other commentary that reads at times like a Greek chorus.
That’d pass for clever dialogue on an episode of Law & Order, but going after a witness with threats of prosecution and losing her children is rather the opposite of the job of a grand jury. Prosecutors, who are sworn to pursue justice, might be justified in following up hunches to ensure that a person they believe is guilty doesn’t avoid an indictment because of a dishonest witness. But a grand jury, which is made up of ordinary citizens who are there to weigh whether the state’s case is strong enough to warrant an indictment, isn’t tasked with pursuing their hunches or trying to determine if the witness is telling the truth.
As criminal defense attorney Pat McCann told Falkenberg, “When she went in there, Mr. Brown had an alibi. When they were finished browbeating her with her children, he didn’t. That’s the single biggest misuse and abuse of the grand jury system I have ever seen.”
Of course, it’s not necessarily surprising that grand jurors responded the way that they did: If you give a bunch of ordinary citizens the authority to feel like the good guys on a cop show, and then ensure that the entire proceedings are carried out in secret and without oversight, it shouldn’t be a shock when some of them choose to take it.
Dockery’s story, of course, is especially egregious—if it weren’t, we wouldn’t know about it in the first place—because it ultimately included her being charged with perjury for a story that kept changing upon threats of punishment from the grand jurors. Dockery wasn’t initially under investigation; she wasn’t accused of a crime; she was a witness who didn’t tell the grand jurors what they wanted to hear in order to issue an indictment of the suspect they were after. While a grand jury isn’t supposed to be “after” anybody—they’re tasked with interrogating the state’s case to see if it warrants prosecution—the ones who questioned Dockery clearly were. She was left to face the choice of jail, or of delivering to the grand jurors the story that they wanted, and ultimately, after seven weeks, chose the latter.
Of course we’ll never be able to determine with 100% certainty exactly what happened in Dockery’s case. It’s not impossible that she had been lying to the grand jury, and that after seven weeks, she decided to tell the truth. But even if that is the case, it doesn’t justify the grand jury’s decision to act as a dozen additional prosecutorial voices. Our system isn’t set up to put witnesses in front of a tribunal of voices who accuse them of lying, even if it’s theoretically possible that they are.
Civil rights advocates hope to spread the community outrage sparked by a case in which a woman was allegedly intimidated by a Harris County grand jury to change her testimony then was jailed when she did.
At a press conference Monday, the Greater Houston Coalition for Justice will use the case to highlight concerns about the fairness and abusive potential of the way grand juries are selected by many local judges and the lack of transparency in their proceedings.
The issue that the coalition seems to be focused on is transparency. Grand juries are secret for a few reasons: Witnesses might hesitate to appear and speak truthfully if what they said were a matter of public record, and people who are accused but not indicted would suffer consequences for merely having been considered candidates for indictment. These reasons have been maintained by courts, and they make sense: It’s hard to imagine a witness in, say, an organized crime case testifying truthfully if their testimony could become public before the case ever went to trial. But according to coalition spokesman Johnny Mata, questions of transparency aren’t limited strictly to the fact that the proceedings occur in secret. Via the Chronicle:
Mata said it is difficult to know how often people with potential conflicts of interest are appointed to grand juries, whether they are racially and economically diverse or if witnesses are intimidated because much of the proceedings and documents are confidential. He said the potential for abuse or manipulation increases because many area judges do not select grand juries at random as is done at trial. Instead, they use a model where an appointed commissioner finds jurors, often turning to retired friends or connections in the legal and law enforcement community.
Those issues don’t necessarily tackle secrecy, but speak to a sense in the wake of the revelations in Dockery’s case that something should be done. The system for selecting grand jurors seems like a viable candidate for change—and has been for a long time. The “key man” system that Mata refers to, which is used in only Texas and California, in which commissioners, appointed by judges, select grand jurors they know from their communities, has come under fire before. As the Austin American-Statesman reported in 2012:
The process has faced several legal challenges, with allegations that it can foster cronyism and favoritism and taint grand jury makeup.
“Many jurors are drawn from those persons who are considered pillars of the community and retirees,” John Stride, a senior appellate attorney for the Texas District and County Attorneys Association, wrote in an article for the organization this spring. “Many of these may have strong ties with law enforcement officers … (and are therefore) more likely to buy into whatever the judge, prosecutor or officers say.”
Texas defendants have challenged the racial composition of grand juries numerous times, and the U.S. Supreme Court has upheld the constitutionality of the key man system but warned that it is “highly subjective” and “susceptible of abuse.”
“It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community,” the court said in a 1977 opinion, its most recent on the matter.
Regardless of the specifics in the case of Ericka Jean Dockery, a system that casts doubt on the integrity of the criminal justice system—and which hasn’t been reviewed in 37 years, at which point even the court that affirmed its constitutionality warned that it was “susceptible of abuse,” and which has been abandoned in 48 states—is probably a ripe target for reform.