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Function of Juries & Jurors Doing Justice | 09 Apr 2015

-Grand Jury Is Right to Comment on Government Corruption

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Jury BoxBoth the Dallas News and the Texas Tribune recently called a Travis County, Texas grand jury on the carpet in their editorial sections for the grand jury’s public statement regarding a government official who was not indicted but had been censured by the state legislature. The 390th Grand Jury addressed a special report to Judge Julie Kocurek regarding its consideration of charges against University of Texas Regent Wallace L. Hall, Jr. containing scathing commentary regarding their views of his behavior

Special Report of the 390th Grand Jury
Regarding the Investigation of the Conduct of a
University of Texas System Regent

Based on the information we reviewed we are appalled at the Regent’s abusive and unaccountable behavior.

Hall used his positional power to the point of abuse. The over leveraging of his power resulted in lost talent, lowered morale, exposure of confidential student information, and unreasonable expenses.

The grand jury wrapped up its report with a recommendation that Regent Hall be removed from his position and for a number of changes to University of Texas Board of Regents policies and practices. Both the Dallas News and the Texas Tribune displayed their ignorance of the role of the grand jury and scolded them for supposedly stepping out of bounds.

Editorial: Hits and Misses

In our legal system, a grand jury has a clear and simple mandate: Either indict someone based on probable cause or issue a “no bill.” Nowhere is a grand jury called upon to opine about someone under investigation or to dabble in governmental policy. Yet a Travis County grand jury seated to investigate University of Texas Regent Wallace Hall did just that. The grand jury found no evidence to indict Hall for his work uncovering an admissions scandal that led to the planned resignation of UT-Austin President Bill Powers. But jurors issued a report that smears Hall and makes it more difficult for regents to obtain public information, thus making it harder for them to do their jobs in overseeing the UT System. If this jury had stuck to its legal mission, we would have been better off.

Analysis: A Grand Jury With a Taste for Commentary

Grand juries are the citizen panels that review the work of prosecutors and decide whether there is enough evidence to take someone to trial on criminal charges.

If the answer is yes, the grand jury issues an indictment, everybody who is not already lawyered up hires a lawyer, and they hold a trial to determine whether the person who was charged in the indictment is innocent or guilty.

If the answer is no, the grand jury issues a “no bill,” saying that the information jurors saw was too thin to justify criminal charges.

And then they’re supposed to shut up. In fact, there is a quaint, old-fashioned idea buried in all of this: In a perfect system — not to imply that there is such a thing — nobody is supposed to know that you were investigated if the result is something short of a charge.

Although government officials often treat modern grand juries as if they are there merely to sit down, shut up, and rubber stamp indictments assembly line-style, today’s mostly meek and obedient grand juries are a far cry from the independent and critical bodies they were in early America and before. “There is nothing new about grand juries issuing proclamations other than indictments and ‘no true bills.’ Such grand jury proclamations were were routine events in early America,” says Roger I. Roots, J.D., Ph.D., a member of FIJA’s Advisory Board.

In his book The Conviction Factory: The Collapse of America’s Criminal Courts, Dr. Roots documents the far more extensive role grand juries played in opposition to government abuses:

The actions of grand juries figured prominently in the beginnings of the American Revolution… A Philadelphia grand jury condemned the use of the tea tax to compensate British officials, encouraged a rejection of all British goods, and called for organization with other colonies to demand redress of grievances.

As tensions with the Parliament and the Crown increased, colonial grand juries encouraged individuals to support the effort of independence. “In some instances,” according to legal historians, “the calls to arms were sounded by the grand jurors themselves; in others, the sparks came from the patriotic oratory by the presiding judges in their charges to the grand jury.” The public proclamations of these grand juries were often circulated in local and national newspapers in an effort to “fuel the revolutionary fire.”

Thus was the grand jury enshrined in America’s constitutional criminal procedure. It was an antigovernment institution with power to confront, to stop and to denounce the state, its prosecutors and all its armies and officers.

What of the Texas Tribune‘s argument that if an indictment results in a No Bill, in a perfect system the public would not even know the accused had been under investigation? Keep in mind that the individual under investigation was no ordinary citizen, but a tax-paid government official being investigated for actions conducted under color of his public duties. Roots discusses in his book the now lost presentment power of grand juries:

A presentment is a grand jury communication to the public concerning the grand jury’s investigation. In early American common law, the presentment was a customary way for grand juries to express grievances against the government or to accuse public employees or officials of misconduct. A presentment was generally drafted from the knowledge and findings of the jurors themselves, rather than a prosecutor, and signed individually by each juror who agreed with it. A presentment stood public with or without approval of a prosecutor or court.

He further explains how the secrecy aspect of the grand jury has evolved over time from a protection of the power of the people to investigate government now to cover behind which government can hide its abuses from public scrutiny:

The application of grand jury secrecy in modern courts is fundamentally different from the way secrecy worked under the common law. When the Fifth Amendment grand jury secrecy clause was ratified in 1791, secrecy was a power of grand jurors—a right to investigate on their own in defiance of the state…

A review of American history reveals that grand juries of the Framers’ era were secret only in their taking of evidence (if the grand jurors so choose) and internal deliberations. An indicted defendant generally had a right to know the identities of those who testified, and in many jurisdictions, all bills issued by grand juries generally had to list the names of all witnesses who appeared on the face or the back of the bills. The public had wide access to grand juries and could scrutinize everything from their composition to their political biases. Thomas Jefferson wrote in 1793 that, “our judges are in the habit of printing their [grand jury] charges in all the newspapers.”…

While originally intended to serve the investigatory function of the grand jury, secrecy is now used to conceal from the public that which the government desires the public not see.

It is common for the press to fiercely defend the crucial role it plays in government accountability and its right to speak on controversial matters of interest to the public, as they properly should. Indeed, the Texas Tribune emphasizes in its report on its first five years its commitment to providing the public with more government transparency and government accountability.

“For five years we’ve delivered on our promise to cover public policy and politics with ambition and moxie — giving average citizens more reliable access to nonpartisan information, holding elected and appointed officials accountable and providing the greatest possible transparency into the inner workings of government,” said Texas Tribune CEO Evan Smith.

That makes it all the more disappointing to hear not one, but at least two media outlets essentially telling a grand jury to “sit down and shut up” rather than exercising one of its traditional and proper functions to expose corruption and abuse by a government official and call for him to be held accountable. Even if they are entirely ignorant of the history and purpose of the grand jury in American history, the media could at least support grand jurors’ supposedly First Amendment-guaranteed right to speak on an equal basis with their own.

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