Wheels of justice grind slowly on death row
By Lisa Falkenberg
May 13, 2014 | Updated: May 14, 2014 9:49am

Jessica Kourkounis, Contract
New evidence has come to light in the case of Alfred Dewayne Brown, left, with defense lawyer Robert Morrow at trial in 2005.

The Harris County prosecutor stood before 12 jurors, pleading with them to kill Alfred Dewayne Brown.

And for a while, the 23-year-old Brown sat and listened – just as he had for days to lawyers and experts and witnesses calling him a murderer capable of a brazen, callous crime: shooting Charles R. Clark, a veteran Houston police officer on the verge of retirement who was just trying to stop a three-man burglary when his aging pistol jammed. The store’s clerk, Alfredia Jones, was also killed, just days after returning from maternity leave.
Finally, Brown raised his hand in court like a pupil in class and jumped to his feet, according to Chronicle archives, blurting out the message he’d been telling officials all along.

“Excuse me. I didn’t rob nobody. I didn’t shoot nobody,” he said in a shaky voice. “I didn’t do this crime, man.”

Judge Mark Kent Ellis told him he’d have to stay silent if he wanted to stay. And he did. Stone silent. Even days later as the jury, in the presence of extra bailiffs, sentenced him to death.

That was in October 2005. Brown went to death row. He kept claiming he was innocent, that he was at his girlfriend’s apartment that morning when some guys he knew from the neighborhood tried to rob a check-cashing store and ended up committing murder instead.
It didn’t matter. On death row, claiming innocence is a pastime. And Brown wasn’t one of those celebrity Texas death row guys. He was a nobody. He was the illiterate son of poison streets whose early neglect may have contributed to the fact that his IQ, according to trial testimony, falls just short of the standard for mental retardation. He soundly lost his direct appeal.

Finally, in 2007, one of those big do-gooder law firms, Pittsburgh-based K&L Gates LLP, decided to take Brown’s case.

Among other things, attorneys honed in on Brown’s alibi: He claimed he had made a phone call on that fateful morning of April 3, 2003 from his girlfriend’s apartment to another land line where she was working as a home health aide. He said he called around 10 a.m. – the same time prosecutors told jurors Brown was at an apartment complex with the other perpetrators, washing up, changing clothes and watching news coverage of the murders.

Search for phone logs
At trial, Brown’s attorneys presented no evidence to back up his claim. Brown’s new attorneys looked everywhere for phone records. District attorneys said they didn’t have them. The phone company said they’d been destroyed.

The search went on. For six years.

Then, last spring, Brown’s attorneys got word from Lynn Hardaway, chief of the DA’s post-conviction writs division, that a homicide investigator in the case had found some old records while cleaning out his garage.

In the stack was a phone log apparently provided by the U.S. Marshal’s Service in April 2003 that showed a call from the girlfriend’s home number was made to her work at about the time Brown said it was – 10:08 a.m.

Mike Anderson, district attorney at the time, quickly agreed to a new trial on the grounds that Brown’s due process rights had been violated. Prosecutors are bound by a court decision known as “Brady” to turn over material evidence that can help the defense.
The DA’s office admitted to an egregious error but maintained in court papers that the failure to disclose the documents “was inadvertent and not in bad faith.”

“I think there were a lot of records, and this got overlooked,” said Hardaway, who still believes Brown is guilty. “It was one piece of paper.”

‘Please hurry’

But an innocent oversight is doubtful when you consider another document in the garage stack – one that shows one of the prosecutors had requested the records, apparently soon after Brown’s girlfriend told the grand jury about the phone call. The girlfriend ended up testifying against Brown in trial but has since recanted, saying she was pressured to lie, according to court records.

In a May 28 hearing, Judge Ellis seemed moved by the new evidence and signed an order for a new trial. He asked the appeals court in Austin to act just as swiftly.

“For you guys and gals on the Court of Criminal Appeals, I’m signing this because I agree with it,” the judge said. “I believe that the circumstances in which we find ourselves at this time merit a new trial in Mr. Brown’s case and I hope that you will … as soon as practical afford us the opportunity to retry the case.”

He closed: “So, please hurry. Okay?”

All the appeals court had to do is rubber-stamp the order. It could have simply written the letters “O” and “K.” Yet, after nearly a year, the court has done nothing.

The delay has puzzled even Judge Ellis: “I wish I knew,” he said when I asked what was taking so long. “They move in mysterious ways in Austin.”

Even those whom fate has dealt the cruelest hand are entitled to a fair trial. How long is a man who very well could be innocent supposed to sit still and silent on death row while the ladies and gentlemen in black robes take their sweet time dallying over his fate?

A disturbing glimpse into the shrouded world of the Texas grand jury system

“Sir, I don’t know anything else,” the young mother of three told a Harris County prosecutor on an April morning in 2003.

But the prosecutor, Dan Rizzo, didn’t believe her. And neither did the Harris County grand jury listening to her testimony.

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.

Dockery tells the group that if she believed Brown actually killed people, she’d turn him in herself: “If he did it, he deserves to get whatever is coming to him. Truly,” she says.

In May, I reported that a land-line phone record supporting Brown’s contention that he called Dockery that morning from her apartment phone had mysteriously turned up in a homicide detective’s garage, more than seven years after he was convicted and sentenced to death. The Harris County District Attorney’s Office maintained Rizzo, now retired, must have inadvertently lost the record, and agreed to a new trial. The Texas Court of Criminal Appeals inexplicably has sat on the case for more than a year.

Initially, Dockery’s story meshed with Brown’s. She told grand jurors he was indeed asleep on her couch at the early morning hour when prosecutors believed he was scouting venues.
Dockery also confirmed the land-line call to her workplace – made at the same time prosecutors placed Brown at an apartment complex with suspects, changing clothes and watching TV news coverage of the crime.

Neither the prosecutor nor the grand jury would take Dockery’s “truth” for an answer.
The young woman, a home health aide who made Subway sandwiches by night, had no attorney. No experience dealing with authorities. No criminal history aside from traffic tickets.

She caved. At Brown’s capital murder trial in October 2005, Dockery was a key prosecution witness, helping seal her boyfriend’s death sentence by telling the court that when she asked him if he did it, he had confessed, saying, “ ’I was there. I was there.’ ”
How she got from one point to another would be hard to imagine. But thanks to a formerly confidential document in Brown’s court file, we don’t have to imagine.

Part of public record
In a rare, disturbing glimpse into the shrouded world of the Texas grand jury system, we can read with our own eyes the beginnings of the young woman’s tortured evolution.

Appellate attorneys were so outraged by a 146-page transcript of Dockery’s testimony before the 208th Harris County grand jury on April 21, 2003, that they entered it into the public record for judges to review.

In it, grand jurors don’t just inquire. They interrogate. They intimidate. They appear to abandon their duty to serve as a check on overzealous government prosecution and instead join the team.

“Unbelievable,” veteran criminal defense attorney Pat McCann said after I asked him to read the document. “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.”

Rizzo and Lynn Hardaway with the DA’s office declined comment, citing a state law that keeps grand jury proceedings secret.

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.

Every word challenged

“I’m just trying to answer all your questions to the best of my ability,” Dockery says.
A bit later, a female juror asks pointedly: “What are you protecting him from?”

“I’m not protecting him from anything. No ma’am. I wouldn’t dare do that,” Dockery eventually responds. As Rizzo and the grand jurors parse Dockery’s every word and challenge each statement, she complains they’re confusing her.

“No, we’re not confusing you,” a grand juror says. “We just want to find out the truth.”
Although Dockery says repeatedly that she knew it was Brown on her couch that morning, the foreman tries to get her to subscribe to an implausible theory that it was somebody else on her couch.

She doesn’t budge. The group takes a break – one of several.

When the grand jury returns, the foreman says the members are not convinced by Dockery’s story and “wanted to express our concern” for her children if she doesn’t come clean.

“That’s why we’re really pulling this testimony,” the foreman tells her.

The foreman adds that if the evidence shows she’s perjuring herself “then you know the kids are going to be taken by Child Protective Services, and you’re going to the penitentiary and you won’t see your kids for a long time.”

‘Think about your kids’

Rizzo goes on to accuse Dockery of misleading the grand jury. Then, after being told again and again to think about her children, Dockery changes her story a bit. She says Brown was not at the house when she left for work.

“No, no, no,” she finally blurts out.

“One minute, Ericka,” a grand juror says a bit later, apparently sensing an opportunity.

He wasn’t in the house when you put your kids on the bus either, was (he)?”

“I’m trying to remember,” she says.

“Think about your kids, darling,” a grand juror says.

“I’m trying to remember,” Dockery says.

“That’s what we’re concerned about here, is your kids,” the foreman says.

“He was not at the house,” a grand juror urges.

“We’re as much concerned about your kids as you are,” the foreman says. “So, tell the truth.”

“He was not in the house when you put your kids on the bus, was he?” a grand juror says.

“Tell the truth, girl.”

“Yes,” Dockery says finally. “He was there.”
A bit later, Dockery acquiesces on that point, saying that Brown was not in her house earlier that morning, either.

Pivotal phone call

There’s a long break. Whatever happened during that time must have been profound. Dockery comes back in and tells yet another, completely different, story – that she left her house far earlier than she’d said previously, to rekindle a relationship with an old lover, and therefore doesn’t know what time Brown left.

Rizzo, his patience seemingly wearing thin, suggests again he doesn’t believe her story. “I think that you’re up to your neck involved in this deal,” he says.

He is intent on getting Dockery to admit she made a call to one of the suspects, as he says records show.
“I never called. I never called,” she says.
“Girl, you just made a big mistake,” a grand juror says.
One of them advises her to get an attorney.
“We’re done,” Rizzo announces.
And although Dockery had never been implicated in the crime, a grand juror closes out Dockery’s testimony by leveling the harshest, most intimidating allegation yet.
“I think she was with him at the check cashing place.”
Months later, Dockery found herself in jail charged with perjury for allegedly lying about what time she last saw Brown the day of the murder and whether she called another suspect. She faced bail she couldn’t pay and, apparently, one cruel choice – stay locked up away from her children, or tell them what they wanted to hear.

 

Houston Chronicle

(Read part II of Dockery’s story)

Mother of 3 pressured into changing story, but jailed anyway
By Lisa Falkenberg
July 17, 2014 | Updated: July 18, 2014 8:29am
For 120 days, Ericka Dockery sat in a Harris County jail cell on Baker Street, a place she would later describe as hellish, “nasty,” full of fights, “unclean women,” and a world away from the most important part of her life – her three children.
Dockery had a choice: Stay locked up, or tell authorities the story they wanted to hear so they could prosecute her boyfriend for capital murder.
Nearly seven weeks in, Dockery chose the latter.
On Oct. 9, 2003, she dictated a jailhouse letter, a desperate plea to state district Judge Mark Kent Ellis, asking him to consider her children, then ages 11, 8 and 6, and vowing to be “a productive mother and citizen if allowed to go home.”
“The time here without them is almost unbearable,” she wrote in the letter, obtained from Alfred Dewayne Brown’s court file.
As I recounted in Thursday’s column, Dockery was a home health aide who had worked nights making Subway sandwiches when she found herself charged with three counts of felony aggravated perjury – allegedly for lying to grand jurors after they pressured her to change her story in a 2003 cop-killing case.
Dockery had testified to the grand jury that her then-boyfriend, Brown, was at her apartment when prosecutors believed he was with guys he knew from the neighborhood, scouting venues for a burglary that would lead to the murder of Houston police officer Charles R. Clark.
Dockery also testified that Brown made a landline call to her workplace around the time of the crime, a contention that would have supported his alibi but was never supported with evidence at trial. It wasn’t until more than seven years after Brown’s 2005 conviction and death sentence that a phone record documenting the landline call turned up in a detective’s garage. Last year, the judge agreed to a new trial, but the state’s highest criminal court has been dallying for over a year on whether to allow it.
Back in 2003, the lead Harris County prosecutor, Dan Rizzo, believed early on that Brown was the murderer, and the grand jury apparently agreed. A transcript of the secret proceedings details how the group intimidated Dockery into changing her story by threatening to take away her children and send her to prison.
She did change her story, but Rizzo saw to it that she was charged with perjury anyway – perhaps to compel her cooperation, perhaps to help discredit her with the jury if she ever tried to defend Brown again.
Guilty of ‘loving my children’
Another grand jury indicted her, in part for testifying that the last time she saw Brown on the morning of the murder was 8:30 a.m., when she later said it was 6:50 a.m. And in part for denying she had made a phone call to another of the murder suspects when phone records showed that she had.
Why Dockery would deny making the phone call to an acquaintance of her boyfriend’s, if in fact she did, is still a mystery to me. She may have lied out of fear, or perhaps she forgot the call or didn’t realize she had miss-dialed. Whatever the reason, it gave Rizzo rope to bind her.
Bail was set at $5,000 for each count and wasn’t lowered, even though Dockery wasn’t much of a flight risk – she had local ties, a steady job, and no criminal record beyond traffic tickets and children.
Dockery couldn’t pay it. So, she appealed to Judge Ellis, and confessed her guilt of aggravated perjury.
“At the time I appeared in front of the grand jury I answered their questions to the best of my belief and knowledge,” Dockery wrote, adding that she didn’t know at the time that Brown was not at her apartment. “He (Brown) asked me to lie and tell anyone who asked that he was in fact at my home when in fact he was not.”
She claimed that Brown’s brother had threatened to kill her and her children if she gave any statement conflicting with Brown’s.
“Out of fear for the safety of my children, I remained silent,” she wrote the judge.
She gave details about the crime that she said she had gleaned from others, and reiterated her plea for leniency.
“Again your honor, I just want to say that I am guilty of aggravated perjury and of loving my children more than anything else in the world and would do whatever necessary to protective (sic) them and keep them safe from harm,” she wrote.
Under prosecution’s thumb
“Whatever necessary” apparently meant cooperating with the prosecutors and becoming their key witness.
Among conditions of Dockery’s release from jail, she agreed to a 10 p.m. curfew, drug testing twice a month and to wear an ankle monitor. The last one made sure she stuck around. But it wasn’t enough.
To make sure she stuck to her story, Dockery was required to call a homicide detective once a week.
Two criminal defense attorneys told me they’d never heard of such a thing. Rizzo, the prosecutor, defended the requirement for a witness who was expected to give important testimony at trial.
“That’s fairly typical for someone we’re not sure is going to be there, to just keep in contact so you don’t have to go looking for them again,” he said, adding that he believed the calls to the homicide detective came only after Dockery gave a sworn statement on her version of events.
Randall Ayers, who was Dockery’s court-appointed defense attorney at the time, said the intent of the provision was clear, but it was one to which his client readily agreed.
“Obviously, I think their goal was to keep her under their thumb,” Ayers said. “Of course I was concerned but there’s nothing I could really do. The judge required it. It was just how it was.”
Dockery held up her end of the bargain.
She testified at Brown’s capital murder trial in October 2005 that, once, when she asked if he had done it, he told her “I was there. I was there.”
It was the first time Dockery had ever mentioned that statement, according to Brown’s appeal.
A persuasive visitor
After Brown’s conviction and death sentence, Dockery tried to get on with her life. In November 2005, she was granted two years community supervision. And in 2007, Judge Ellis ended her supervision early and she avoided a conviction through deferred adjudication.
Years later, when an investigator for Brown’s appellate attorneys came knocking on her door, hoping she would help lead them to the truth, Dockery turned the woman away and ordered her off the lawn.
Then one day they sent someone else, a capital murder exoneree who had survived his own tortured journey through the criminal justice system.
“Look, sister,” Anthony Graves told her before she could close the door. “I just want to tell you what happened to me.”
And she let him in.

Houston Chronicle

Cop was foreman of grand jury in cop-killing
By Lisa Falkenberg
July 24, 2014 | Updated: July 25, 2014 11:10am
We can’t hear his voice as he browbeats the mother of three within the secret confines of the grand jury room. We can’t see his face as he dogs her to stop supporting her boyfriend’s alibi in a cop-killing case.
But we know when the grand jury foreman is talking. We know because the 146-page transcript notes it in all capital letters. And we know by his words.
He’s the one who calls out to the Harris County prosecutor with the familiarity of a guy asking a buddy to pass a beer, “Hey Dan, what are the punishments for perjury and aggravated perjury?”
He’s the one who tells the 27-year-old witness, Ericka Dockery, that if she perjures herself, “then you know the kids are going to be taken by Child Protective Services, and you’re going to the penitentiary and you won’t see your kids for a long time.”
He’s the one who tries to get Dockery to subscribe to the implausible theory that it was someone else – not her boyfriend, Alfred Dewayne Brown – sleeping on her couch just before the murder at a check cashing store, even though she insisted again and again she knew it was Brown by his build, his tennis shoes, and the color of the shirt she bought him.
Understandably, the cold-blooded murder of a police officer rouses strong emotions. Dockery was questioned only 18 days after veteran Houston Police Officer Charles R. Clark was gunned down in April of 2003 trying to stop a three-man burglary at a check-cashing store. Clark was 45, on the brink of retirement, and married. Officers had worked throughout the night to hunt down his killer. The loss was fresh.
But if the foreman seems a little too passionate to be impartial, a little too invested to fairly lead a grand jury investigating an officer’s murder, maybe it’s because he was.
The foreman, records reveal, was himself a veteran Houston police officer.
Records obtained through a Texas Public Information Act request show that Senior Police Officer James Koteras, sworn in in July of 1972, led an investigation into the death of his own colleague.
A confidential grand jury record released by state district Judge Denise Collins shows that Koteras identified his occupation in 2003 as “Retired-Houston Police Officer.” But police and city payroll records and officials confirm that Koteras was an active-duty officer in HPD’s auto theft division until his retirement in March 2008.
Technically, Koteras is still on the city payroll today, receiving compensation for time he accrued as an officer. The date discrepancy is not necessarily Koteras’ fault, as his occupation may have been updated in a subsequent grand jury service.
Regardless, Dockery didn’t stand a chance against a deck that stacked.
The blatant conflict is stunning even in a county known for its cozy, pick-a-pal grand jury system stocked with police- and prosecution-friendly elites. Any naïve notion that the grand jury would act as a check on overzealous prosecution withered when Koteras failed to recuse himself.
“I would personally recuse myself,” HPD Chief Charles McClelland said Thursday when I asked what he’d do in a similar situation, “because of just the air or the perception of what the community may feel. But that’s me personally.”
Judge Collins, who impaneled the grand jury, seems as disturbed as anybody at reports of the harshness with which grand jurors interrogated Dockery.
“It’s terrible, it’s terrible,” the judge told me. “That shouldn’t have happened. I hope that was an aberration. No, grand jurors do not work for the state.”
Still, she stands by her decision to appoint a law enforcement officer to the body, noting that she also appoints defense attorneys as well.
“I just don’t think you should just eliminate people because of what they do,” she said. “They’re a citizen as well.”
I don’t disagree with her on that. And I also don’t blame her for Koteras’ role in Brown’s case. The judge had no direct oversight over which cases he handled or how he handled them. She isn’t the one who assigned a grand jury led by a cop to a cop-killing case.
That was the decision of Dan Rizzo, former Harris County assistant district attorney who served as lead prosecutor.
His choice of Koteras “would scream conflict of interest to nearly all reasonable people,” says University of Houston law professor David R. Dow. “The DA’s office is full of reasonable people. So the only logical conclusion is that they just didn’t care about this conflict.”
When I asked Rizzo about the conflict he drew a blank.
“It’s one of those things that I just don’t remember,” he said. But he added: “That alone would not cause me to say a grand jury was not an objective grand jury.”
Rizzo, now retired, was a seasoned prosecutor in 2003. He had easy access to the same type of form I obtained in which Koteras listed his occupation. He had to have known about the conflict. And in truth, he would have welcomed the advantage.
Not that he needed it over a group of largely black suspects from a bad part of town. Dockery worked as a home health aide and made Subway sandwiches at night. She had no one to advise her with the grand jury. Lawyers aren’t allowed inside, but she didn’t even have one waiting in the hall.
Rizzo’s selection of Koteras’ grand jury worked out well for his case. After the group threatened Dockery, she changed her story. She was charged with perjury anyway for good measure, locked up away from her children until she agreed to become the prosecution’s key witness against Brown.
Her testimony helped seal Brown’s conviction and death sentence in 2005. That could have been the end of the story if a phone record supporting Brown’s alibi that he was at Dockery’s apartment around the time of the murder hadn’t surfaced last year in a homicide detective’s garage. The district attorney’s office and the trial judge quickly agreed to a new trial, but the Texas Criminal Court of Appeals has yet to rule on the case more than a year later.
Koteras has not responded to my attempts to reach him. I haven’t been able to ask him why he didn’t simply recuse himself from the proceeding and allow the rest of the quorum to hear Brown’s case.
Three other grand jurors who served on the 2003 panel said their faded memories didn’t recall any undue pressure on Dockery, or any perceived bias from the police officer acting as foreman.
“We talked about it and all,” grand juror MaryAnna Montalbano said about Koteras’ occupation. “If it affected him and he served any way, that’s not good.” But she didn’t recall him acting unfairly.
Another grand juror, Richard Alan Ogle, who teaches writing at UH-Downtown, said having a police officer on a grand jury “probably does influence some cases.” But whether it had an impact on this one, he couldn’t remember.
Ogle remembered feeling that Dockery’s testimony “didn’t sound right” and that “her body language, the way she talked, some inconsistencies in what she said” raised suspicions.
Most telling, though, was my interview with grand juror Randy Russell, a recent president of the 100 Club, the nonprofit that helps support dependents of peace officers and firefighters who die in the line of duty.
When I started describing the case to jog his memory, Russell insisted I had the wrong guy.
“It definitely wasn’t me. And I’ll tell you why,” he said. “We had an HPD sergeant (sic) who was the foreman of our panel and we did not hear any cases involving police officers.”
I read him the names of the other grand jurors, including Koteras’, and it all started coming back. He then assured me that, despite the fact that an officer was at the helm, the panel was independent and “it wasn’t a rubber stamp kind of thing.”
Still, one thing continued to stump him.
“I don’t know why we heard that case,” he said.
I don’t know why, either. But I have an idea. And the reason wasn’t justice. It was the farthest thing from it.
In addition to intimidation, threats and imprisonment, a grand jury led by a cop was another powerful weapon for a prosecutor determined to get justice for a fallen officer. But it was a blunt instrument used against a person who couldn’t fight back.

Houston Chronicle
Does ‘pick-a-pal’ system give you a grand jury of your peers?
Houston Chron By Lisa Falkenberg
August 13, 2014 | Updated: August 14, 2014 5:53pm
The horrible thing about judges, magistrates, detectives, policemen and other “legal officials” isn’t that they’re wicked or stupid, 20th Century English luminary G. K. Chesterton once wrote.
It’s that they’re jaded.
“Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place,” Chesterton wrote. “They do not see the awful court of judgment; they only see their own workshop.”
In an essay on jury service, he suggested that something as important as a person’s guilt or innocence shouldn’t be left to trained people, but rather, their judgments should be infused with “fresh blood and fresh thoughts from the streets.”
In other words, common people who bring common sense, empathy and logic not constrained by legal theory, politics, or rote concern over next week’s paycheck.
If we want a library catalogued or a solar system discovered, Chesterton wrote, our civilization employs specialists. “When it wishes anything done which is really serious, it collects twelve of the ordinary men standing around.”
Alfred Dewayne Brown could have used twelve ordinary folks standing around when he was accused of killing a Houston police officer in 2003.
And so could his girlfriend, Ericka Dockery, an alibi witness who was bullied and threatened by a Harris County grand jury into changing her story.
Instead of clear eyes and open minds, they got a group of repeat-grand jurors led by a damn-near professional.
Newly obtained court records show that the foreman, James Koteras, was not only an active Houston police officer and colleague of the murdered officer, he was a grand juror who had served at least six times by 2003. Records show he has served on at least 10 grand juries since 1992.
This is outrageous on many levels. It flies in the face of Texas law, which requires grand juries to represent “a broad cross-section” of the community.
State District Judge Denise Collins, who empaneled Koteras’ grand jury, said she usually asks potential grand jurors how many times they’ve served before approving them, but she doesn’t recall whether she did so in Koteras’ case. She says if he had told her he’d served six times, she wouldn’t have approved him.
“I don’t think it’s a good idea to keep putting the same people on the grand jury,” Collins said this week, but she added, “sometimes, you get desperate.”
Several years ago, Collins turned to a new method of choosing grand jurors: she selects them herself from pools of people randomly called for regular jury duty.
As for Brown and Dockery, they didn’t get a grand jury willing to protect their rights and serve as a check against overzealous prosecution. They didn’t get a grand jury willing to uphold its oath to conduct inquiries with diligence and honesty.
They got a grand jury whose own apparent zeal and jaded view robbed Brown of his only alibi witness and helped deprive Dockery of her freedom.
In Koteras’ eyes, Brown may have seemed the usual suspect. A poor black man – and in this case, illiterate – who had socialized with the wrong crowd and whose girlfriend was probably doing what other girlfriends in these cases have done: lying to protect her boyfriend.
As I’ve reported in a series of columns on the case, Dockery ended up charged with felony perjury for her conflicting statements to the grand jury and locked up at the Harris County jail for four months away from her three children until she agreed to testify against Brown.
Although Koteras’ grand jury didn’t indict Brown, the one that did also included a cop: a former officer who, according to Chronicle archives, had served as an aide to a former chief. In 2005, Brown was convicted of capital murder and sentenced to death.
New evidence unearthed in a detective’s garage suggests Brown may have been telling the truth. The trial judge and prosecutors have agreed to a new trial, but the Texas Court of Criminal Appeals has sat on the case for more than a year while Brown waits on death row.
The circumstances that led us here are outrageous. But few people familiar with the Texas grand jury process are surprised. It’s what happens in a relic of a system – discarded by 48 other states – that lets an elected judge pick a pal, called a commissioner, to pick more pals to guard the gates of due process.
“At some point,” says criminal defense attorney Clay Conrad, “the system has just gotten so inbred it’s just sort of a parody of what it’s supposed to be, which is a citizen panel chosen at semi-random to determine whether the government had enough evidence to go forward. Now it’s a panel of cops and retired cops who’ve done this many times before and it acts as a rubber stamp.”
Conrad isn’t so jaded that he doesn’t want to do something about a dangerously flawed system.
And neither are judges like Collins, who have moved away from the “pick-a-pal” system of grand jury selection. But there are plenty more who cling to it, likely because it’s easier, and it’s the way it’s always been done. A Chronicle story last year reported that 12 of the 21 criminal district courts are still using pick-a-pal to fill their grand juries.
How many of those include ordinary, fair-minded folks? How many are stacked with people like James Koteras?
How many would you trust with your case?

 

he Washington Post
Houston grand juries: too white, too law-and-order, and too cozy with cops
by Radley Balko August 1
A couple weeks ago, I posted about a disturbing murder case in Houston in which a grand jury berated and threatened a witness until she changed her story. Houston Chronicle columnist Lisa Falkenberg first broke the story.
Here’s a quick recap: The witness in the 2003 case was Ericka Jean Dockery, the then-girlfriend of Alfred Dewayne Brown, who was accused of murdering a Houston police officer during an armed robbery. Dockery was Brown’s alibi. He claimed he was at her house when the murder took place. Brown also claimed to have called Brown at her work from her house that morning. Dockery initially supported Brown’s story. But after aggressive questioning from a Harris County grand jury, including threats to charge her with perjury and take away her children, Dockery changed her story, and became a key witness for the prosecution. Brown was convicted and sentenced to death.
Seven years later, a phone record confirming Brown’s story about calling Dockery from her apartment was found in the garage of one of the Houston detectives investigating the case.
This case is troubling for a number of reasons, but what’s most striking — and unusual — is the release of the transcripts from the grand jury. The grand jury is in some ways a relic from a different time, when we didn’t have full-time prosecutors, and charges and allegations were brought by private citizens. Today, a grand jury, made up of a panel of private citizens, is supposed to stand as a check on overzealous police and prosecutors. In truth, grand juries are notorious for their willingness to do whatever prosecutors ask of them. Hence, the old saying that a grand jury will indict a ham sandwich.
Last weekend, Falkenberg wrote a follow-up column with a pretty explosive detail. The foreman of the grand jury in the Brown case was a Houston police officer.
Records obtained through a Texas Public Information Act request show that Senior Police Officer James Koteras, sworn in in July of 1972, led an investigation into the death of his own colleague.
A confidential grand jury record released by state district Judge Denise Collins shows that Koteras identified his occupation in 2003 as “Retired-Houston Police Officer.” But police and city payroll records and officials confirm that Koteras was an active-duty officer in HPD’s auto theft division until his retirement in March 2008.
Technically, Koteras is still on the city payroll today, receiving compensation for time he accrued as an officer.
So a then-active-duty Houston police officer served as the foreman on a grand jury that as investigating the murder of another Houston police officer. And as Falkenberg points out, the most aggressive questioning of Dockery came from Koteras. Even if Koteras had been retired at the time, as he claimed on his questionnaire, putting a recently retired cop on a grand jury is antithetical to the entire point of a grand jury, especially one that’s investigating the killing of a cop.
Falkenberg also found that another of this particular grand jury also had ties to police. Randy Russell was “a recent president of the 100 Club, the nonprofit that helps support dependents of peace officers and firefighters who die in the line of duty.” Again, it’s hard to see how anyone could see this as objective.
Falkenberg contacted the judge in the case, Texas state district Judge Denise Collins. She said she was disturbed by the way Dockery was treated, but defended her decision to put a police officer on the grand jury. Falkenberg also contacted the prosecutor who handled the case, former Harris County assistant district attorney Dan Rizzo. He too said he saw nothing wrong with Koteras serving as foreman, telling Falkenberg, “That alone would not cause me to say a grand jury was not an objective grand jury.”
As it turns out, isn’t it all uncommon for former cops, former prosecutors, and members of the law enforcement community to serve on grand juries in Texas. It isn’t even uncommon for active police to serve on them. Clay Conrad is a Texas criminal defense attorney. He’s currently challenging the indictment of one of his client on the grounds that the way Harris County grand juries are selected is inherently biased. “It happens all the time,” Conrad says. “They love to pack grand juries with former police officers.
The Brown case seems to have motivated some social justice groups to start calling for reform. But legal scholars have long raised questions about the system Texas uses to select grand juries. And in Harris County in particular — the death penalty capital of America — there are longstanding allegations that Houston grand juries are far too white, far too connected to judges and prosecutors, and far too cozy with law enforcement.
The Key-Man System
Texas judges can select a grand jury in one of two ways. The first way is similar to the traditional manner in which petit (trial) jurors are chosen: Potential jurors are picked from a random pool taken from public records like voter rolls or property records. But Texas judges can also use what’s called a “key man” system. Under the key-man system, the judge picks one or more people to serve as “commissioners.” The commissioners then choose from a pool of people who have volunteered for grand jury duty.
Critics say the key-man system is not only too susceptible to corruption, but even with good intentions selects for juries that are whiter, wealthier, more sympathetic to law enforcement, and more likely to indict. One of those critics is Joseph Gutheinz, a former federal law enforcement investigator and Army intelligence officer who served on a Harris County grand jury in 2008. Gutheinz was so disturbed by what he saw that he wrote an op-ed in the Houston Chronicle lambasting the key-man system.
“It was a real eye-opener,” Gutheinz tells me. “The make-up of the grand jury will inevitably reflect the political party of the judge. You can expect to see precinct chairs and party hacks. And lots of law enforcement interests.”
Gutheinz, who describes himself as a staunch conservative and a lifelong Republican, says he was also stunned by the lack of diversity on Harris County grand juries. “I’m not a liberal by any stretch of the imagination. But I was shocked at how white the grand juries are. Houston has a huge minority population. But the grand jury selectors always seem to find a lot of white people. It’s just fundamentally unfair.”
The key-man system has long been controversial. The system dubbed “pick a pal” by critics was long a way to implement systematic segregation in the courtroom. “It goes back to reconstruction and Jim Crow, where it was used to keep blacks and sympathetic whites off of grand juries,” Conrad says. In a 2012 article for “The Prosecutor,” Texas District and County Attorneys Association (TDCAA) Senior -Appellate Attorney John Stride warned that the system faces a major perception problem.
The key-man system attracts challenges on grounds that it is subject to abuse. The principal complaint is that the jurors are drawn from those directly connected with the criminal justice system including attorneys, bailiffs, court reporters, probation officers, and the like. Also, many jurors are drawn from those persons who are considered “pillars of the community,” and retirees. Many of these may have strong ties with law enforcement officers who bring their cases and appear before a grand jury. It is argued that all these selections are inherently more likely to buy into whatever the judge, prosecutor, or officers say. Subject to the bar on repeated service within a twelve-month period, the recycling of jurors also occurs. In this manner, a large slice of the community can be overlooked or ignored for grand jury selection. Worse, the selection of “repeats” can be viewed as effectively disenfranchising portions of the population, i.e., those elements that the judge and commissioners don’t know. Accordingly, it is argued that those grand jurors selected under the key-man system inadequately reflect a fair cross-section of society.
Only Texas and California still use the system, and it is barred from use in federal courts.
There have also been a number of recent scandals in Texas related to the pick-a-pal system. Just last month, judges in Hidalgo County came under fire for allowing local politicians to stack grand juries with cronies. In 2011, a Denton County man known locally for being a persistent government critic, especially of then-Denton Mayor Mark Burroughs was indicted by a grand jury on corruption charges. An investigation by the Denton Record-Chronicle found that the grand jury included the head of a city department, a former mayor, a member of Burrough’s reelection committee, and four people who had donated to his campaign.
In a 2004 study, University of Houston criminologist Larry Karson found plenty of evidence to support key-man critics. Karson looked at grand commissioners selected in Harris County 2002 and 2003 (the latter being the year Brown was indicted). It found that of the 129 people to serve as commissioners (again, these are the people who pick the grand juries), more than half were employed in some way by the criminal justice system. Two of the commissioners were former prosecutors. Incredibly, one was a sitting judge on the state appellate court “responsible for reviewing appeals from the very district court judge that she nominated grand jury candidates for.” Another 11 commissioners worked for the county’s probation office. Six more were retired law enforcement officers.
Karson then looked at the makeup of grand juries themselves. According to census data at the time, Harris County was 21.2 percent Hispanic. But Hispanics made up just under 9 percent of the county’s grand juries. Of the 32 grand juries in which the study’s author could determine the foreman, none of the foremen were Hispanic. And when Hispanics were selected, judges were twice as likely to appoint them as non-voting alternates than to the grand jury itself.
That study inspired a 2004 Houston Chronicle investigation, which found yet more examples of police officers serving on grand juries that were investigating crimes that may have been committed by or against other law enforcement officials. The paper found that a separate grand jury investigating the same police robbery and police shooting for which Brown was accused also included two an active duty Houston cop. The judge who picked one of those two officers, the late District Judge Mike Anderson, later left his bench to run for Harris County district attorney. He won. (Interestingly, then-DA Pat Lykos — whom Anderson defeated in the primary — was herself later the subject of a grand jury investigation that Lykos and her supporters say was politically motivated.) The office is currently held by Anderson’s widow, Devon Anderson, who is also a former judge. The Chronicle found that another Houston cop was chosen for the grand jury that investigated allegations of corruption and mishandling of evidence at the Houston crime lab. Another Houston police sergeant was chosen as a grand jury commissioner by two different judges in a 10-month span.
Another 2000 study of the key-man system in Santa Cruz, California found that it can “lead to racially and ethnically unrepresentative juries, undermine public confidence in the grand jury system, and further perpetuate the notion of racial discrimination and disenfranchisement in the criminal justice system.”
But John Brewer, an assistant district attorney in Harris County, says that needn’t be the case. Brewer serves as head of the Grand Jury Division in the Harris County District Attorney’s Office. He also wrote a recent primer on grand juries for the TDCAA. “To say that there’s something about the key-man system that prevents diversity on grand juries, I don’t think that is fair,” Brewer says. “I think every judge in Harris County is completely aware of and has a desire and preference for having a diverse grand jury.”
Brewer argues that the barriers to more diverse grand juries are more about practicality than prejudice. Harris County grand juries meet twice a week, from 8 or 9 in the morning until the early to mid afternoon. A term lasts for three months. “Finding people to contribute that kind of time really starts to shrink your pool,” Brewer says. The time requirement tends to select for people who are either retired or wealthy enough to be able to take that sort of time off from their jobs. The pool process requires judges to sift through hundreds of candidates to find those who have the time to serve. The key-man process allows the judge-appointed selectors to choose from applicants who have already volunteered, which saves a lot of time.
But Gutheinz counters that it further slants grand juries toward police and prosecutors. “Think about who would volunteer to serve on a grand jury, or even know that volunteering is possible” Gutheinz says. “These are going to be people who already know how the system works, who are going to be sympathetic to law enforcement, and people who are predisposed to indicting people instead of independently considering the facts.”
Brewer says the key-man system isn’t inherently flawed, but acknowledges that it can be problematic if it isn’t implemented properly. “The devil is in the details,” he says.
Or it may just be in which judge is picking panels. A 2012 investigation of grand juries in Travis County by the the Austin-American Statesman found that while Hispanics were underrepresented, blacks were actually overrepresented. More interesting, grand juries chosen through the key-man system were actually more diverse than grand juries selected through the pool process. But that may be due to two black judges whose grand juries empaneled blacks at five times the black population in the county. The paper also pointed out that white judges were more likely to over-represent white people on their grand juries.
The key-man system, then, could actually help bring more diverse and independent grand juries if it’s used by judges who make those goals a priority. On the other hand, it can be used to select grand juries that lack diversity, demonstrate bias toward police and prosecutors, or use the process for political means. The question, then, is which of these is happening in Harris County.

Too cozy with cops
Gutheniz and Conrad both say they are troubled but not surprised that the grand jury foreman in the Brown case was a Houston police officer. Both say that the county’s grand juries are far too cozy with law enforcement.
“Grand juries are often invited to go on ride-alongs with Houston cops,” Gutheinz says. “They get free time on police shooting ranges. They used to give them rides on police helicopters. There’s a systematic effort to make them sympathize with police, and to see the world as police do.”
Brewer acknowledged Gutheinz’s allegations about both ride-alongs and the shooting range, but saw nothing wrong with either. “The ride-alongs enable grand jurors to visualize what police officers are doing,” Brewer says. “It isn’t to inculcate them with the views of a police officer. And I think it’s inappropriate to suggest that.”
Since 2003, the Harris County DA’s office has also offered to put grand jurors in a police shooting simulator. Here’s how the A.P. described it earlier this year:
The armed carjacker projected on a large screen threatens to kill you if you don’t give up your keys. Holding a modified gun that emits a beam, you pull the trigger when he draws his weapon, and seconds later fire again at another person who jumps in front with something in his hand.
The second person turns out to be a bystander holding a cellphone.
This interactive way of illustrating the use of deadly force is part of unusual training that Houston-area grand jurors can receive before they begin hearing cases, including those involving police officers.
The Harris County district attorney’s office in Houston calls the shooting simulator — which experts believe is only being used in Texas — an educational tool that helps grand jurors better understand what someone sees when confronted by a threat.
Critics like Gutheinz and Conrad say the simulator makes grand jurors less sympathize with police officers accused of unlawful shootings, and therefore less likely to indict them. And while police get regular training on the use of lethal force, and on how to recognize and act on threats, grand jurors are dropped into the simulations cold.
Brewer disagrees. If the goal is to get grand juries to make decisions based on all the information available, he says seeing an incident through a cop’s eyes is an important part of that process. “I’m saying, what if I could immerse you in a scenario in which you can see an incident as it actually happened, in 3-D, just as the officer did? Wouldn’t that be the most honest and accurate way for you to evaluate the officer’s actions?”
Gutheniz isn’t buying it. “It’s revealing that he’s say he wants grand jurors to see these incidents from a police officer’s perspective. That says a lot. Is he also taking grand jurors to spend a day at a social worker’s office, or at a public defender’s office?”
Brewer disputed the analogy. “The exact corollary would be for me to arrange for grand jurors to spend a day with a criminal, and I certainly can’t do that.”
Gutheinz found that statement to be revealing, too. “It just shows that they think everyone brought before a grand jury is guilty, and they want to condition the grand juries to think that, too.”
Brewer insists that grand juries indict police officers all the time. “Good Lord, there are bunches of cases,” he says.
But while police officers do sometimes get indicted for crimes like dealing drugs or taking bribes, indictments for excessive force or officer-involved shootings are much rarer. In its story on the simulators, the A.P. noted that the state is currently in the midst of “a streak of nearly 300 cases in which grand juries have cleared Houston police officers in shootings.” That includes a case last year in which a grand jury declined to indict a cop who shot and killed a wheelchair-bound double amputee who was armed with only a pen.
Last year, another Houston Chronicle investigation found that the city’s police officers “have been nearly immune from criminal charges in shootings,” despite the fact that from 2008 to 2012, about a quarter of the 121 people shot by cops were unarmed. The last Houston police officer indicted for a shooting came in 2004. The paper also found that many of the city’s judges weren’t even aware of the simulator. (It’s notable that, almost as an aside, the paper notes that the editor of the Houston police union newsletter not only has served as a grand jury foreman, but was also at the time serving as a commissioner, one of the people who picks grand juries under the key-man system.)
“They pick and condition these grand juries to be sympathetic to cops,” Gutheinz says. “So when a controversial police shooting comes up, they can present the case to a faceless, unaccountable grand jury with no recommendation. The grand jury no-bills, the cop gets off, and the prosecutor doesn’t have to face any consequences.”
Brewer wouldn’t comment specifically on the Brown case, but he did say he could see the problem with having a police officer as foreman of a grand jury investigating a police shooting. “In a scenario like that, if it were me, I’d probably try to present the case to another grand jury. But more because of appearances than because I think the officer would be biased. But keep in mind that if you take the case to another grand jury, the critics will say, ‘Well now you’re forum shopping.’”
Brewer says he sees nothing inherently wrong with putting police officers on grand juries. In fact, he says,he’s far more concerned about a different problem. “If you’re going to worry about something, worry about defense attorneys getting onto grand juries. I worry that we have these unfettered defense attorneys who get on grand juries, and are looked at by other grand jurors as if they’re an irrefutable authority on criminal law. So you don’t get any indictments. It happens very often.”
“That’s ridiculous,” Conrad says. “Occasionally a defense attorney will get onto a grand jury, but it’s usually a defense attorney who was formerly a prosecutor. But it isn’t common, and it isn’t a problem. Retired police officers are far more common.”
Gutheinz says he again Brewer’s concern to be revealing. “I was a defense attorney when I served on a grand jury, but I was seen as a safe pick because of my law enforcement background and my conservative politics. You have to understand that the only side grand juries usually get are from police and prosecutors. So it’s telling that Mr. Brewer would be worried about those few occasions where someone might be able to articulate the other side.”

Seeking guidance from the courts
Despite the steady concerns about the key-man system from legal scholars, defense attorneys, and criminal justice activists, so far there’s been little desire to change it. Brewer says that by his estimate, older judges tend to favor it, while newer judges tend to opt for the pool system, although he emphasizes that’s just a guess. Brewer also says that he isn’t aware of any systematic attempt to quantify the ethnic, racial, or professional makeup of Harris County jurors.
In fact, one recent bill in the Texas legislature would actually have made grand juries less transparent. A 2013 bill sponsored by state Sen. Craig Estes would have sealed the identities of grand jurors even after their terms expire. If the bill had passed — it died in committee — revelations like those in the Brown case would forever remain under seal. On the other side, a separate bill in the Texas house the same year would have required grand juries to record all interviews with witnesses, not just with defendants. That bill too looks to have died before a vote.
Conrad’s law firm is currently planning a challenge to the key-man system through his representation of William Driver, an oil company executive who was beaten and Tased by an off-duty cop and three other police officers at a rodeo. “He was just waiting outside a tent for some friends to come out. The cop was working security, and I guess didn’t think my client showed the proper respect for his authority,” Conrad says. “They Tased him three times while he was on the ground handcuffed, causing temporary brain damage.”
The police claim Driver appeared intoxicated, and became belligerent and profane when told he couldn’t enter a restricted area.
According to Conrad, a witness attempted to record the altercation on his cell phone, but the police also attacked the witness, confiscated the phone, and deleted the video. Conrad’s firm was able to recover the video and presented to prosecutors, believing the video would vindicate their client and possibly even lead to the indictment of the officers. It didn’t. Instead, Driver was indicted on a charge of assaulting a police officer.
Conrad’s associate Paul Looney challenged Driver’s indictment on the grounds that the grand jury had been predisposed to sympathize with police, particularly with the use of the simulator. In April, Texas District Judge Frank Price rejected that argument. Conrad and Looney plan to appeal.
“The grand jury system is centuries old, but there’s surprisingly little case law about how to choose the members in a way that’s impartial, fair, and representative,” Conrad says. “Somewhere between stacking grand juries with police officers and stacking them with criminal defense attorneys, there’s a line. But no one has any idea where that line is. We’re asking for the courts to provide some guidance. We’re asking them to take their supervisory role seriously.”
That’s something Gutheinz has been clamoring for since 2008. “Before I served on the Harris County grand jury, I had testified before grand juries at the federal level. I can’t tell you how surprised and disturbed I was at the difference. Harris County is just a dependable component of the DA’s office. You’d be shocked at how little deliberation goes on. It’s inherently discriminatory against people of color — and basically anyone accused by a law enforcement officer. You have a bunch of white guys indicting people of color, young people, and poor people of all races with very little scrutiny. And at the same time, the same white guys are helping cops getting off for beating or killing those same people. Until that changes, I think all the indictments that come from Houston grand juries should be challenged.”
The Washington Post
Exclusive: Houston cop who threatened, harassed grand jury witness served on at least nine other grand juries
By Radley Balko August 8 at 11:04 AM
On Friday, I posted an in-depth look at some of the problems the grand jury system in Harris County, Texas (home to Houston). I have since obtained some court documents that seem to confirm the most serious accusations from the system’s toughest critics.
First, a quick review: My Friday post was based on a series of columns by Lisa Falkenberg at the Houston Chronicle exposing how a grand jury verbally abused and threatened a witness into changing her story in a 2003 murder investigation. On July 25, Falkenberg revealed that the foreman of the grand jury was a longtime Houston police officer named James Koteras. This is already a problem. Grand juries are supposed to be citizen panels that protect us from unfounded allegations by police and prosecutors. At least that’s the theory. To have cops serving on grand juries chips away at that buffer. But that’s really only where the problem begins.
The case Falkenberg has been covering is the investigation of Alfred Dewayne Brown, who was accused (and eventually convicted) of murdering a Houston police officer. To have a cop on that grand jury is quite a bit worse. Falkenberg also found that another member of the jury was the executive director of a benevolence organization for police and fireman.
My post took a broader look at the Harris County grand jury system, and found that cops have routinely served on Houston grand juries.

Some have probation officers, corrections officers, and other members of law enforcement in the criminal justice system. Moreover, critics allege that the “key-man” system that many Harris County judges use to pick grand jurors selects for law enforcement officials and their friends, family, and acquaintances. Critics say it’s too easily manipulated, and results in grand juries continually picked from the same pool of people — cops, retired cops, friends and family of cops, and older, whiter, wealthier, more conservative people who both have the time and money to serve, and are familiar enough with the system to even know to volunteer to serve on a grand jury in the first place.
Adding to the problem, grand jury members are invited to go on police ride-alongs, are given free time at police shooting ranges, and are invited to participate in 3D shooting simulators designed to make them empathetic with police officers. Those same grand jurors are then asked to assess the validity and credibility of the police officers who testify before them, not just in routine investigations, but in investigations of the killing of police officers, alleged abuse by police officers, police shootings, or police corruption.
The documents I’ve obtained this week show that Senior Officer James Koteras not only served on the grand jury that indicted Brown, he has served on at least nine other grand juries between 1989 and 2011. He served as foreman at least one other time, and as assistant foreman at least twice. According to Falkenberg, Koteras was an active duty Houston police officer until 2008. Grand jury lists are sometimes sealed (though not always), and courts aren’t always forthcoming with them. So my source has been unable to access any beyond 2011, but it’s possible that Koteras has served on additional grand juries since then.

The transcripts of grand jury proceedings are also typically sealed, but the transcripts in the Alfred Dewayne Brown case were released as part of his petition for a new trial. Brown stood accused of participating in an armed robbery in which one of the assailants shot and killed Houston police officer Charles R. Clark. Ericka Jean Dockery was Brown’s girlfriend at the time. She was also his alibi. Brown claimed that he was staying at her apartment the morning of the crime. He also said that after she left for work that morning, he called her at her office while he was still in her apartment.
Dockery initially verified Brown’s alibi. But after aggressive questioning, led by Koteras, she changed her story, and became a key witness for the prosecution. Koteras at one point tells Dockery that unless she changes her story, her children will be “taken by Child Protective Services, and you’re going to the penitentiary and you won’t see your kids for a long time.” Falkenberg adds in her July 25 column:
He’s the one who tries to get Dockery to subscribe to the implausible theory that it was someone else – not her boyfriend, Alfred Dewayne Brown – sleeping on her couch just before the murder at a check cashing store, even though she insisted again and again she knew it was Brown by his build, his tennis shoes, and the color of the shirt she bought him.
At one point, Koteras shows a familiarity with Assistant District Attorney Dan Rizzo that reveals a rather cozy relationship.
“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.
Dockery changed her story, and Brown was convicted and sentenced to death. Assistant District Attorney Dan Rizzo then filed felony perjury charges against her. There was no evidence indicating she was lying. The charges were based on the fact that Rizzo (now retired) and the Koteras-led grand jury didn’t believe her. Those charges were then leverage Rizzo could use to be sure she testified (or, if you want to be cynical, to be sure she testified the right way). After Brown’s conviction, Dockery retracted her testimony, and has since signed an affidavit indicating she felt pressured by the grand jury. Seven years after Brown’s conviction, evidence emerged showing that Dockery hadn’t lied. Phone records surfaced showing a call had been made from Dockery’s apartment to her office, just as Brown and Dockery had initially claimed. The records had been sitting in the garage of a Houston police officer.
Falkenberg interviewed three of the grand jurors who served with Koteras in 2003. Oddly, despite the transcripts, none of them remember any of their fellow grand jurors putting any pressure on Dockery, nor do they recall Koteras’ status as an active police officer affecting their investigations. One of the grand jurors, MaryAnne Montalbano, told Falkenberg, “We talked about it and all. If it affected him and he served any way, that’s not good.” According to the documents I’ve received, Montalbano also served with Koteras on a grand jury in 1992.
Falkenberg has also since interviewed lots of Houston judges and law enforcement officials who claim to be troubled by the way the Koteras grand jury treated Dockery, and by the fact that an active Houston police officer could serve on a grand jury investigating the death of another cop. Yet few of them see to see this as a product of a flawed system.
But these new revelations seem to confirm critics’ longstanding objections to the key-man system. Koteras was repeatedly chosen to serve on Harris County grand juries, including four since he served on the grand jury that interrogated Dockery and indicted Brown. Perversely, the very secrecy imposed on grand juries in order to protect citizens from reputation-ruining false allegations also prevented anyone outside the grand jury room from becoming aware of Koteras’s aggressive questioning of Dockery. And that allowed him to go on to serve on more grand juries. A protection for the accused has basically become a tool to tilt grand juries to favor police and prosecutors.
According to a public information officer at the Houston Police Department, the agency also continues to pay its officers their full salary while they serve on grand juries. Typically, a grand jury meets twice a week, from about 8 in the morning until early to mid-afternoon. Each grand jury term lasts three months. This means that Houston is paying police officers to both investigate crimes, and serve on the grand juries that then determine if those investigations merit criminal charges.
Other observations from the documents:
• The foreman of the 2004 grand jury was the now deceased Chester Massey, another retired Houston police officer.
• Koteras twice served on a grand jury for 339th District Court Judge Caprice Cosper, in November 2006 and November 2008. Four other people served on both of those grand juries. Koteras served as foreman for the 2006 session.
• In addition to Koteras, five other people served on both the November 2008 grand jury and on a February 2010 grand jury for 177th Circuit Court Judge Kevin Fine. Two of those people also served on the November 2006 grand jury , which means Koteras and those two others served together on grand juries in 2006, 2008, and 2010, in two different judicial districts.
In a city the size of Houston that sort of overlap can’t happen by chance. It can only happen in a system designed to select from a very shallow pool of potential grand jurors, or one where the selectors keep picking the same grand jurors for a particular reason.
Keep in mind, this is all from a review of only 10 grand juries spanning about 20 years on which James Koteras served as a member. Because of the unusual circumstances of the Brown case, we’re getting a tiny glimpse into a sliver of what happens in Houston grand jury rooms. But even here, we see evidence of law enforcement presence, selection from a shallow pool of jurors, and lots of repetition.
Grand juries in general have departed from the traditional idea that they’re supposed to protect us from unjust accusations. A recent Charlotte Observer article, for example, pointed out that in one four-hour session a Mecklenburg County, North Carolina grand jury heard 276 cases from prosecutors in just four hours — and issued 276 indictments. As the Observer pointed out, that isn’t just a perfect record, it’s a perfect record at the rate of one indictment every 52 seconds. Over two weeks, the grand jury heard 553 cases and issued 552 indictments. The only exception: a police officer accused of manslaughter.
But the Texas system — and the Harris County system in particular — seems particularly stacked against the accused. I ran these recent revelations by Jon Gould, a professor at the Department of Justice, Law & Criminology at American University who co-authored a 2011 report on grand juries for the National Association of Criminal Defense Lawyers. “This is highly unusual, and highly troubling,” Gould says. “You don’t see this sort of thing anywhere else in the country.” Gould says it’s unusual to see a police officer on a grand jury at all in most states, much less repeatedly. “To see a police officer go after a witness like that is troubling. But to then see that he has served on 10 grand juries . . . I’ve never heard of anything like that.”
Yet it doesn’t seem at all unusual for Harris County. In my last post, Harris County District Attorney John Brewer said he saw nothing wrong with putting police officers on grand juries. District Judge Denise Collins, who oversaw the Brown case, told Falkenberg the same thing.
In my last post, I also spoke with Clay Conrad and Joseph Gutheinz, two Houston-area criminal defense attorneys who have criticized the grand jury system there. When told about these latest documents showing just how often Koteras has been reporting to the grand jury room, neither seems surprised. “It’s outrageous,” Conrad says “But no, it isn’t surprising.” Gutheniz adds, “Not only isn’t it surprising, I can assure you that he isn’t the only one.”
This week, Gutheinz sent a request to the Civil Rights Division of the U.S. Department of Justice, asking the agency to investigate whether the way grand juries are empaneled in Harris County violates the constitutional rights of those who are accused of crimes.
Finally, it’s worth pointing out again that this was a death penalty case. And it appears that Koteras’ presence on the grand jury helped secure a conviction that may not have otherwise occurred. And all of this is happening in the county that executes more people than any other county in America, and by a wide margin. As of last year, Harris County had executed 116 people since 1976. Dallas County was second with 50. Gould points out that until only recently, Harris County judges also appointed attorneys for indigent defendants, including in capital cases. That system too was criticized for being too opaque and riddled with cronyism.
As of now, Alfred Dewayne Brown is still waiting to hear from a Texas appellate court about whether he’ll get a new trial.

Radley Balko blogs about criminal justice, the drug war and civil liberties for The Washington Post. He is the author of the book “Rise of the Warrior Cop: The Militarization of America’s Police Forces.”
Houston Chronicle
Grand juries
Potential jurors should be picked from a random pool taken from public records.
Houston Chronicle | August 22, 2014 | Updated: August 23, 2014 3:13pm
Photo By Mayra Beltran/Staff
Honorable Michael McSpadden, 209th District Court Judge, discusses issues with Grand Jury at the Criminal Justice Center on Friday, July 26, 2013, in Houston. ( Mayra Beltran / Houston Chronicle )
“Hey Dan. What are the punishments for perjury and aggravated perjury?”
“It’s up to 10 years.”
“In prison, OK.”
– Grand jury foreman James Koteras, a longtime Houston police officer, in a conversation with assistant district attorney Dan Rizzo while Rizzo was questioning a witness.
If, as the old saying goes, a grand jury will indict a ham sandwich, then officer Koteras would seem to be the guy eager to slather on the mustard. The friendly little colloquy noted above took place during the 2003 testimony of a woman named Ericka Jean Dockery, the girlfriend of Alfred Dewayne Brown, who stood accused of participating in an armed robbery in which one of the assailants shot and killed a Houston police officer. Dockery was Brown’s alilbi, and Koteras was buddying with Rizzo to shake her testimony.
We know about the interchange because of a remarkable series of columns this summer by the Chronicle’s Lisa Falkenberg. The transcripts of grand jury proceedings are normally sealed, but the transcripts in the Brown case were released as part of his petition for a new trial. They’re not only eye-opening; they’re persuasive evidence for a much-needed reform of the grand jury system in Texas.
As Falkenberg reported, Koteras at one point tells Dockery that unless she changes her story, her children will be “taken by Child Protective Services, and you’re going to the penitentiary and you won’t see your kids for a long time.” He and his fellow jurors eventually browbeat the young woman into completely changing her story. She ended up behind bars for six months, and Brown landed on death row, despite evidence that Dockery was telling the truth before being pressured into changing her testimony.
This is not the way the system is supposed to work. Grand juries are supposed to be, according to Texas law, “a broad cross-section of the community” acting as a check against overzealous police and prosecutors.
In practice, Texas grand juries do pretty much whatever prosecutors ask them to do. “At some point,” criminal defense attorney Clay Conrad told Falkenberg, “the system has just gotten so inbred it’s just sort of a parody of what it’s supposed to be, which is a citizen panel chosen at semi-random to determine whether the government had enough evidence to go forward. Now it’s a panel of cops and retired cops who have done this many times before, and it acts as a rubber stamp.”
Texas judges have two options for selecting a grand jury. They can pick potential jurors from a random pool taken from public records – the traditional method for picking jurors for trials – or they can use what’s known as the “key man” system. Under the latter, the judge picks a couple of people to serve as “commissioners,” who then choose from a pool of people who have volunteered for grand jury duty. In a 2004 study, University of Houston criminologist Karry Karson found that more than half of the 129 people picked to serve as commissioners in 2002 and 2003 were employed by the criminal justice system.
It’s little wonder that the system has been dubbed “pick-a-pal” by critics. The people who end up serving are older, whiter, wealthier and more conservative than the general population. A term lasts for three months and grand juries meet twice a week, so jurors are often retirees with free time. They frequently serve over and over. Falkenberg discovered that Koteras has served on at least 10 grand juries since 1992.
As long ago as 1977, the U.S. Supreme Court warned that the Texas system, although constitutional, is “highly subjective” and “susceptible of abuse as applied.” California and Texas are the only states that still use the key-man system. It is barred from use in federal courts.
Texas state law allows judges to choose how their grand jurors are called. Six of the 21 criminal courts in Harris County have rejected the key-man system in favor of purely random selection from pools of people called for regular jury duty. As we’ve said before on this page, it’s time for a wholesale switch. If the pick-a-pal judges refuse to do so, then the Texas Legislature next session needs to do it for them.

Houston Chronicle
In Harris County, secrecy that shrouds grand jurors includes their names
By Lisa Falkenberg
September 4, 2014 | Updated: September 4, 2014 8:01pm
By Lisa Falkenberg
Secrecy is essential for grand juries. No argument here.
In the right hands, the confidential cocoon of the grand jury room can be a refuge for the truth. In the wrong hands, it can be a dark place to conceal it.
We the people of Texas have only one window into the shrouded system, one tool to ensure judges are empaneling fair, diverse grand juries and aren’t filling them with country club pals, active duty cops, and mostly white elites. We have their names.
Texas law and Texas attorney general opinions say citizens get to know in whose hands we’re entrusting the broad powers to investigate, subpoena and indict.
A name isn’t much. But it’s something. And now, in Harris County, we don’t even have that.
Since January 2012, all 22 of our criminal court judges have begun quietly, unilaterally, signing orders to seal the names of grand jurors, according to newly obtained records. They’re doing it not just while the juror is serving, but indefinitely.
“We have filed our motions and we have sealed them and, quite frankly, that hasn’t been challenged,” state district Judge Denise Collins said.
Well, judge, I’m no lawyer, but consider this your first challenge. I don’t have time to visit 22 courts and wait to be called upon 22 times to make the same argument. So I’ll say it here.
Sealing public information is wrong. By some stretch of judicial discretion, it may be legal – that’s to be determined. But it violates the spirit of the law, and the public’s trust in the folks in black robes to fairly administer justice.
Texas law requires grand jurors to be empaneled in open court – for a reason. The public deserves a chance to look the panel over, assess qualifications and point out possible conflicts.
The sealing of the names is even more troubling in a county where many judges still use the antiquated “pick-a-pal” system to select grand jurors that’s been banned in federal courts and found vulnerable to abuse by the U.S. Supreme Court.
It’s even more vulnerable now.
With the names under seal, judges could empanel entire grand juries of cops. Judges could choose never to empanel another woman, or another African American. And we wouldn’t know.
So, what compelling reason would our honorable arbiters of justice have for hobbling the public’s only check on grand jurors? Are grand jurors enduring an epidemic of death threats? Are they demanding in unison their names be hidden?
Not so much.
Of the 22 judges I called, seven responded by deadline. Judge Collins was the only one whose privacy was born of a real-life example: Some of her grand jurors got calls at their homes and information packets from defense attorneys.
“And that makes them feel vulnerable,” she said. “They shouldn’t be compromised that way.”
Judge Susan Brown, speaking personally and not in her capacity as administrative judge, said it’s an issue of safety and security. Asked for examples of safety concerns, she offered a hypothetical.
“What if Joe Smith is the relative of a capital murder defendant who wants to know who indicted him and then there’s harm?” she said. “I think there has to be some gatekeeping.”
Brown said judges have a responsibility to protect jurors unless there’s “a good reason” to release their names.
But what’s a good reason? Is there ever a “good reason” for a judge who doesn’t want us to know he’s empaneling a bunch of her pals?
“I can’t answer that,” Brown said, refusing to entertain a hypothetical.
Surprisingly, several judges seemed unaware they were sealing names.
“I had no idea I was doing that,” said Judge Ruben Guerrero. “Have I been doing that?”
Judge Marc Carter asked his clerk about it. When she confirmed he’d signed the order, he was momentarily at a loss to explain.
“I have the dumbest answer on the planet,” Carter said candidly. “That’s the way I thought it was always done. It’s not something I’ve ever given any second thought to.”
In the judges’ defense, a lot of paper crosses their desks. And this particular sheet of paper has become a “standard order” presented by the district clerk’s office when judges empanel grand juries. Exactly how it began is a mystery.
Several judges, after hearing my protestations, said they sympathized with the open government argument. A few are entertaining my requests for the sealed records. One has already handed them over free of charge.
Only one judge – Brad Hart – said he’ll stop sealing. After doing his own homework, he decided transparency trumped his concerns about privacy.
“I do think we have to do whatever we can do to make sure the system and the process runs like it should and people can have as much faith in it as they can,” he said.
What a simple democratic notion – one that criminologist Larry Karson puts more bluntly: “Release it all. This isn’t Russia. You don’t use the court system as the secret police.”
Karson is the instructor at the University of Houston Downtown whose 2006 paper revealed a systemic effort in Harris County to keep Hispanics out of grand jury leadership roles and also found more than half the “commissioners” judges chose to select grand jurors had ties to the criminal justice system.
Karson also found out that some appointees were serving more frequently than the law allowed, and that one judge had appointed four grand jurors from his own church.
How did Karson find this out? Back then, grand jury names were public record.
With all due respect, Your Honors, stop sealing public information and hand over the records. They belong to us, the people who elected you.
Houston Chronicle
DA candidates agree “pick-a-pal” grand jury system must go
Houston Chron By Lisa Falkenberg
September 18, 2014 | Updated: September 18, 2014 6:59pm
Of all the platform positions Kim Ogg lists on her campaign handout, No. 5 is my favorite.
“Reform the unfair grand jury system. Period,” it reads.
Of course, it didn’t surprise me that Ogg, a former prosecutor and director of Crime Stoppers of Houston now running as a Democrat for Harris County District Attorney, would hold that view. Challengers love reform. And God love ’em for that.
What did surprise me is that the sitting District Attorney Devon Anderson, a former state district judge, agreed – at least in spirit.
“If I was on the bench today, I would not use the ‘key man’ system,” Anderson said, referring to the antiquated, good ol’ boy-type system that many Texas judges still use to appoint a few “key” people to select their grand jurors. “I would use the random jury pool.”
The random pool is how trial juries are selected, as you probably know if you’ve ever been called for jury duty. But the rules are different for grand jurors, who decide whether there’s probable cause for a case to go to trial. Texas law allows judges to appoint grand juries randomly or through the “key man” system, also called the “commissioner” or “pick-a-pal” system.
As I’ve written, the antiquated method often leads to skewed panels of older citizens from elite circles, many of whom have strong ties to law enforcement. The law requires grand juries to represent a cross-section of the community. Some judges can accomplish that through the “key man” system, but it can take a great deal of effort that others aren’t willing to expend.
The difference between the two DA candidates on addressing the issue seems to be motivation.
Ogg, who calls the “key man” system “outdated” and “a disservice to the public and to justice,” suggests the DA post is a good bully pulpit from which to push for change.
“I think the DA of the largest county in the state has a big voice in lawmaking, although we don’t have a vote,” Ogg said, adding that she’d do her “level best” as DA to reform the system by making her case with the Texas Legislature.
Anderson, meanwhile, pointed out it’s not her job to tell the county’s 22 criminal court judges what to do.
“I guess I can say ‘yeah, judges, y’all need to randomly select your grand jurors,’ but I sure am not going to say we’re not going to participate until that happens because we present hundreds of cases a week,” Anderson said. “We can’t slow the process for that. And getting those 22 people to agree on anything is like herding cats.”
This will be the rare occasion where I side with the bully – using that term only in jest. Ogg knows full well she can’t control the 22 cats, either, but she can beat the drum until they feel the pressure to change their old ways. Or until the legislature changes the law to require the random system, as the federal government did way back in 1968.
Some of the newer judges have already begun voluntarily schlepping over to the room where trial jurors convene to try and recruit average citizens to serve on grand jury panels. It’s time consuming, but a few have said they’ve found the effort worthwhile.
Anderson and Ogg made their comments on the grand jury process during a lively exchange before the Houston Chronicle editorial board earlier this week. I’m not a board member, but they let me attend because I was having trouble getting questions for the DA answered through her spokesman.
At the meeting, Anderson was responsive. I asked her what she thought of a 2003 transcript I reported on earlier this year in which grand jurors intimidated an alibi witness in a cop-killing case to change her story. The witness ended up testifying against her boyfriend Alfred Dewayne Brown, who was convicted of killing a police officer and remains on death row.
Newly discovered evidence has cast doubt on Brown’s conviction. Anderson’s late husband, former DA Mike Anderson, agreed to a new trial for Brown, but the Texas Court of Criminal Appeals has sat on the case.
“I thought it was shocking,” the district attorney said of the transcript. “It would have been interesting to see the witness’ demeanor. That’s the only thing about transcripts is they’re flat. If she had a real ‘screw you’ attitude, that may have accounted for some of it but it was disturbing, it was disturbing. I was troubled.”
Ogg agreed with that assessment.
It’s true the transcript reveals only so much, but, for the record, nothing about the witnesses’ courteous speech to grand jurors revealed a “screw you” attitude.
Anderson said she’s confident that current practices in her office would prevent another case like Brown’s from happening again. While the foreman of Brown’s initial grand jury was himself a Houston police officer, a colleague of the officer murdered, Anderson said prosecutors now check grand juror occupations to make sure no grand jurors who are current or former police officers hear officer-involved shooting cases.
“Eleven years ago, that didn’t happen I guess, but it’s happening today,” Anderson said.
That’s good to hear. But a written policy would be nice. And a broader one. The current practice apparently only applies to cases where an officer shot someone, not in cases where an officer is the shooting victim.
It’s progress, though, that both of the well-qualified women running for Harris County district attorney realize that our system of justice would be better if judges scrapped the ol’ boys club way of picking grand juries.
One candidate just has more confidence that she can do something about it.
“If one party, namely the DA, takes a strong stand and says we want random selection of grand jurors, we’re in a much stronger position to make that happen,” Ogg said. “That’s my idea on reform. You lead by public example.”

http://thinkprogress.org/justice/2014/11/26/3597322/justice-scalia-explains-what-was-wrong-with-the-ferguson-grand-jury/

 Justice Scalia Explains What Was Wrong With The Ferguson Grand Jury

by Judd Legum

Posted on November 26, 2014 at 10:13 am Updated: November 26, 2014 at 11:57 am

 “. . .neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

 CREDIT: AP Photo/David Tulis

 On Monday, Prosecutor Bob McCulloch announced that a grand jury had decided not to indict Darren Wilson, the officer who killed Michael Brown. But that decision was the result of a process that turned the purpose of a grand jury on its head.

Justice Antonin Scalia, in the 1992 Supreme Court case of United States v. Williams, explained what the role of a grand jury has been for hundreds of years.

    It is the grand jury’s function not ‘to enquire … upon what foundation [the charge may be] denied,’ or otherwise to try the suspect’s defenses, but only to examine ‘upon what foundation [the charge] is made’ by the prosecutor. Respublica v. Shaffer, 1 Dall. 236 (O. T. Phila. 1788); see also F. Wharton, Criminal Pleading and Practice § 360, pp. 248-249 (8th ed. 1880). As a consequence, neither in this country nor in England has the suspect under investigation by the grand jury ever been thought to have a right to testify or to have exculpatory evidence presented.

This passage was first highlighted by attorney Ian Samuel, a former clerk to Justice Scalia.

In contrast, McCulloch allowed Wilson to testify for hours before the grand jury and presented them with every scrap of exculpatory evidence available. In his press conference, McCulloch said that the grand jury did not indict because eyewitness testimony that established Wilson was acting in self-defense was contradicted by other exculpatory evidence. What McCulloch didn’t say is that he was under no obligation to present such evidence to the grand jury. The only reason one would present such evidence is to reduce the chances that the grand jury would indict Darren Wilson.

Compare Justice Scalia’s description of the role of the grand jury to what the prosecutors told the Ferguson grand jury before they started their deliberations:

And you must find probable cause to believe that Darren Wilson did not act in lawful self-defense and you must find probable cause to believe that Darren Wilson did not use lawful force in making an arrest. If you find those things, which is kind of like finding a negative, you cannot return an indictment on anything or true bill unless you find both of those things. Because both are complete defenses to any offense and they both have been raised in his, in the evidence.

As Justice Scalia explained the evidence to support these “complete defenses,” including Wilson’s testimony, was only included by McCulloch by ignoring how grand juries historically work.

There were several eyewitness accounts that strongly suggested Wilson did not act in self-defense. McCulloch could have, and his critics say should have, presented that evidence to the grand jury and likely returned an indictment in days, not months. It’s a low bar, which is why virtually all grand juries return indictments.

But McCulloch chose a different path.

 Harris County’s “Pick-a-Pal’ grand jury system allows the grand jury to be stacked with those that have close ties to the legal and criminal justice system, grand jury members, include judges, attorneys, court employees, bail bond agents, probation officers and law enforcement officers.

The jury foreman in Alfred Brown case was James Koteras, an active Houston police officer and colleague of the murdered officer. Another Houston Police Officer involved in the case is the husband of a Harris County Assistant District Attorney. See New Archives for related Houston Chronicle’s stories

In addition Harris County Grand Jurors are allowed to use firearms shooting simulator(s), as part of orientation that new grand jurors receive from the Harris County District Attorney’s Office. Grand jurors’ duties include reviewing police shootings, play the role of police officer in the simulations by using a modified gun to shoot a beam at the screen.

The use of the shooting simulator has prompted questions among defense attorneys and civil rights activists about whether it could prejudice grand juries. Harris County grand juries have cleared HPD officers in shootings 288 consecutive times.

Terri Burke, director of the American Civil Liberties Union in Texas, said grand juries should serve as a check on abusive police practices.

“This seems to be a brainwashing that all but guarantees immunity for the cops,” Burke said about the simulator. “It really seems outrageous and holds the potential of tainting the jury.”

The reality that police have been nearly immune from criminal charges in shootings concerns the most senior Harris County criminal judge, who noted that grand juries indict a much higher number of defendants in other types of cases.

“The big void on indictments of police officers is certainly alarming, and I just hope each grand jury had decided those cases based on the facts independently of what the district attorney wants them to do,” said 209th District Judge Mike McSpadden.

Roy Grant, a retired Houston pipefitter who served on a grand jury panel earlier this year, said he took part in the training simulator during his orientation. The 73-year-old said the use of the simulator contributes to grand juries clearing so many officers in civilian shootings.

“I don’t think that needs to be shown,” said Grant, who added he was the only black member of the grand jury. “I think it persuades a grand juror which way to vote when a police officer is involved.”

Big Jolly Politics
Harris County Grand Jury System needs reform
AUGUST 15, 2014By Don Hooper
Patricia Pollard: An example of a system gone wrong
There are many cliques around the Harris County Criminal Justice Center. In 2012, we saw these factions unite to support a false narrative about then District Attorney Pat Lykos and tarnish many good people in the process.
In the old days, for example, the courtrooms of Mike and Devon Anderson were used as dunking booths for certain prosecutors. They could make or break careers at the Harris County District Attorney’s Office. If the Andersons did not like a prosecutor in their court, they would simply send an email or make a call to the sixth floor of the DA’s Office and the prosecutor was forever marked as a dud.
Having heard a few of these stories, it is hard to understand why some of these duds actively supported Mike Anderson’s campaign for District Attorney in 2012. Perhaps we can chalk it up to Stockholm Syndrome. As time has passed, it is becoming clearer every day that these people simply want to protect the system and good ole boy/gal network at all costs.
Lisa Falkenberg, Houston Chronicle, and Radley Balko, Washington Post, recently wrote a series of stories about the Harris County criminal justice system (links to Lisa Falkenberg’s Houston Chronicle series 1, 2, 3, 4, 5 and Radley Balko’s Washington Post stories 1,2 ). They illustrate their argument through the view of Ericka Jean Dockery, a former girlfriend of an alleged cop killer, Alfred Dewayne Brown. We don’t know if Alfred Dewayne Brown is guilty or innocent; but, that is not the point. Some would like to label opponents of the current (in)justice system as lovers of cop killers; however, basic logic demonstrates the fundamental flaw in that claim. If you want the criminal justice system to be fair and just and convict the guilty, read on.
On April 3, 2003, Alfredia Jones, an employee at a check cashing store, and Charles Clark, a Houston Police Department Officer, were murdered during a store robbery. Ericka Dockery, Brown’s then-girlfriend, testified for the State during Brown’s trial. The following is an explanatory excerpt from an opinion from the Texas Court of Criminal Appeals (emphasis added):
Erika Dockery, who testified for the State, was appellant’s girlfriend at the time of the offense and lived with him at the Plum Creek Apartments. Her testimony established that appellant demanded that she lie to the grand jury investigating the crime and provide him with an alibi. She obliged, but later admitted that she had lied. She was charged with aggravated perjury, a fact that was made known to the jury, and she admitted to drug use. Dockery also testified that on the day of the crime, appellant was acting very unusually. He telephoned her and told her to watch a news broadcast regarding the crime, and she testified that when she saw him later that same day, he appeared nervous and was moaning and crying. Most importantly, Dockery testified that she had regularly visited appellant at the jail after his arrest, and on the last day she visited him, she pleaded with him: “I need – – I want to know the truth. Did you do this? . . . I want to know. Did you kill the lady? Did you shoot the policeman? I need to know. Did you do it?” Appellant eventually responded by putting his head down and saying, “I was there. I was there.”
On August 22, 2003, Dan Rizzo, an Assistant District Attorney, filed thee cases of aggravated perjury against Ericka Jean Dockery in cause numbers 959250, 959251, and 959252. On the complaint, Rizzo listed the following probable cause for the cases:
Affiant Pat Smith, a Harris County District Attorney Investigator read the official transcript of the grand jury testimony of the defendant Eric[k]a Jean Dockery where the defendant testified before the 208th Grand Jury of Harris County, Texas on Monday, April 21, 2003[.] Affiant read that the defendant testified on two occasions before the above grand jury that her then boyfriend, Alfred Brown, was present in her residence at 8:30 am on April 3, 2003[.] Affiant further states that said Alfred Brown is charged with the capital murder of Houston Police Officer C Clark and civilian A Jones that is alleged to have occurred on April 3, 2003 at 9:45 am. Affiant believes that the testimony of the defendant is material in that it is inconsistent with Alfred Brown’s guilt in that it would help give Alfred Brown an alibi for said capital murder[.] Affiant further read the Houston Police Department offense report concerning the above[-]described capital murder where two of the charged co[-]defendants of Alfred Brown admit that they committed an aggravated robbery with Alfred Brown on April 3, 2003 where he, Alfred Brown shot and killed Officer C Clark[.]
Affiant further read the official transcript of the grand jury testimony of the defendant where the defendant testified on April 21, 2003, before the 208th Grand Jury of Harris County, Texas and denied making a telephone call to one of the co[-]defendants of Alfred Brown, Eljah Joubert, at 10[:]26[ ] am on April 3, 2003. Affiant reviewed a detailed list of the cell phone activity of Elijah Joubert for the date April 3, 2003, which showed that Joubert received a call from Alma Berry’s home at 10[:]26[ ]am on April 3, 2003[.] Affiant read the Houston Police Department Offense report concerning the capital murder described above where Alma Berry said that on April 3, 2003, the defendant worked as a health care provider for Alma Berry at her home[.] Ms[.] Berry stated that she never called Elijah Joubert’s cell phone on April 3, 2003[.] Ms[.] Berry also stated that the defendant was present in her home working on April 3, 2003[.] Affiant believes that the statement where the defendant denies calling Joubert as material in that the defendant is attempting to [provide an] alibi [for] Brown, by saying that Brown and Joubert were not together during the morning of April 3,2003[.]
Let’s review the timeline so far. The murders occurred on April 3, 2003. On April 21, 2003, Dockery was brought before the 208th Grand Jury. Rizzo filed three aggravated perjury cases against Dockery on August 22, 2003. These three cases were indicted by the 351st Grand Jury on October 10, 2003.
On April 5, 2003, Rizzo filed two criminal complaints against Brown in cause numbers 0944751 and 0944752. The officer listed as the affiant is Houston Police Department officer Breck McDaniel, the husband of Assistant District Attorney Katherine McDaniel. These cases were indicted by Mike Anderson’s grand jury (262nd District Court) on July 16, 2003.
On July 26, 2005, the 228th Grand Jury (re-)indicted Brown for capital murder in cause number 1035159. This indictment was likely Rizzo’s effort to change the charging instrument’s language prior to trial. Previously, Rizzo filed two separate capital murder cases for each victim. The new indictment merged both victims into one capital murder charge: robbing Jones and killing Clark, a police officer.
According to the notes on the Harris County District Clerk’s website, jury selection in Brown’s case occurred from August 29 through September 16, 2005. The trial began on October 10, 2005. On October 24, 2005, Brown was removed from the courtroom during the trial because he loudly proclaimed his innocence during the prosecutor’s closing argument asking the jury to take Brown’s life. Specifically, Brown shouted, “He’s trying to take my life away for something I didn’t do. It’s hard sitting here and listening to him trying to take away my life for something I didn’t do.” The jury returned a death verdict for Brown on October 25, 2005.
On November 4, 2005, Dockery received two years of deferred adjudication (a type of probation) in the 351st District Court in cause number 959250. On the dismissals in cause numbers 959251 and 959252, Rizzo checked the reason for dismissal as “The Defendant was convicted in another case.”
April 3, 2003 Alfredia Jones and Houston Police Department Officer Charles Clark murdered in a check cashing store robbery
April 5, 2003 Rizzo files two cases of capital murder against Brown
April 21, 2003 Dockery brought before the 208th District Court
July 16, 2003 Mike Anderson’s grand jury (262nd District Court), led by Patricia Pollard, indicts Brown in two capital murder cases
August 22, 2003 Rizzo files three cases of aggravated perjury against Dockery
October 10, 2003 351st grand jury indicts Dockery in three cases of aggravated perjury
July 26, 2005 228th Grand Jury re-indicts Brown a month before trial begins
August 29 – September 16, 2005 Voir Dire in Brown capital murder case
October 10 – 25, 2005 Trial in Brown capital murder case
November 4, 2005 Dockery receives two years of deferred adjudication for one case of aggravated perjury
From all accounts, the evidence against Brown at trial included testimony from two star witnesses: (1) a co-defendant who received a deal that saved him from the death penalty and (2) Dockery, a woman who was charged with aggravated perjury after questioning from a grand jury. While Falkenberg and Balko’s reporting has focused on Dockery, we believe that the story is much bigger than one case.
On a rotational basis, the 22 felony district court judges in Harris County select three to five grand jury commissioners. These commissioners are charged with compiling a list of citizens to be summoned as grand jurors.
Five grand juries actively serve at any given time. Beginning in January of each year, five judges, on a numerical rotation, select and empanel a grand jury, which consists of twelve Harris County citizens. These citizens meet for two days each week for three months. To qualify for service, a grand juror must not have served on a grand jury within the last year. In other words, a citizen may serve on a grand jury every other year (e.g., 2014, 2016, 2018).
In the Dockery/Brown cases, we know that Dan Rizzo used three different grand juries in 2003. So, immediately following the murders, in April 2003, Rizzo questioned Dockery in front of the 208th grand jury. 102 days after Rizzo filed the two capital murder cases against Brown, the 262nd grand jury indicted Brown in both cases. Then, in October 2003, Rizzo presents Dockery’s cases to a third grand jury, the 351st grand jury, and they indict her in all three aggravated perjury cases. Why would Rizzo wait so long to present Brown’s case to a grand jury? The answer may be in the composition of Mike Anderson’s 2003 grand jury.
The foreman of Mike Anderson’s grand jury in the summer of 2003 was an individual named Patricia (Tricia) S. Pollard. That name should sound familiar to you.
To date, Pollard has served on six Harris County grand juries: five as foreman and one as assistant foreman. In her online bio, Pollard touts her service as grand jury foreman in May 2003. She claims that, under her leadership, the 262nd grand jury handled the greatest number of cases in Harris County Grand Jury history. How does she know this? And, why is she proud of this?
Pollard’s 2003 grand jury included Andy Geffert, a former Houston Police Department Officer. In 2004, Anderson came under fire for putting Geffert on a grand jury, especially one that returned indictments in Brown’s case, which involved the capital murder of a Houston Police Officer.
Following Pollard’s 2005 service, she wrote a letter to Governor Rick Perry and all members of the Texas Legislature claiming that she had discovered massive Medicaid fraud during her tenure on the grand jury. On January 18, 2006, she was asked to testify before the Senate Finance Committee. In her letter, Pollard alleged a “widespread, massive and repeated” fraud. During the hearing, several senators pushed her on this strong statement. Ultimately, Pollard conceded that she had no evidence to substantiate her allegation. Watch the video and see Pollard in action for yourself. As stated during the hearing, Mike Anderson was made aware of Pollard’s letter; so, he knew that she was a loose cannon as early as 2005 – 2006.
On September 14, 2006, Pollard donated $5,000 to Texans for Rick Perry. In March 2007, Governor Perry appointed Pollard to a six-year term on the Texas State University System Board of Regents and she was sworn in to this position by Devon Anderson. Pollard made two donations to Devon Anderson’s judicial campaign: one on September 27, 2007 and another on September 4, 2008. So, in 2011, when it came time to take back the courthouse from Pat Lykos, the Andersons went to their go to gal, Trisha Pollard.
Judge Devon Anderson swears in Patricia Pollard to the Texas State University System Board of Regents
During the DA campaign, David Jennings asked Mike Anderson about Patricia Pollard. Jennings documented the conversation.
Mike told me that he first met her about 10 years ago at a Habitat for Humanity event. She told him that she was a retired lawyer and would like to be on a grand jury. He thought that would be a great thing and appointed her to two grand juries during his term as a judge. He then told me that she excelled at the work and that any judge at the courthouse would fight to get her on their grand juries. He stated that she was very efficient and went out of her way to investigate cases. He mentioned one in particular in which she found out that an organization wasn’t doing criminal background checks on their volunteers, wrote a letter to the Governor, and got the policy changed. He also told me that Bellaire is a small community, so he runs into her from time to time but that was the extent of their relationship. I also asked him, if that was the extent of their relationship, why did his wife perform the duty of swearing Ms. Pollard in as a regent of Sam Houston State University? He told me he really didn’t know but in any case it had nothing to do with a grand jury.
Mike Anderson whispers to Patricia Pollard at the King Street Patriots DA debate in 2012
On December 29, 2010, 185th District Court Judge Susan Brown paid $2,925 to the law firm of Devon Anderson and Brock Thomas for “Legal Services and Legal Research.” Then, in August 2011, the 185th Grand Jury was sworn in for a three-month term and Brown appointed Pollard as the foreman. After Brown held secret meetings with the grand jury in violation of Texas law, the grand jury “went rogue” and began a witch hunt against Pat Lykos under the guise of the breath alcohol testing (BAT) vans. You should know that these BAT vans continue to be used by all law enforcement in Harris County, including the Houston Police Department.
You know the rest of the story. The Anderson campaign and consultant Allen Blakemore used the 185th grand jury “investigation” to defeat Lykos and “take back” the courthouse.
Meanwhile, in 2013, Pollard served on yet another grand jury – this time, for Kristin Guiney in the 179th District Court.
May 2003 Grand Jury Foreman 262nd District Court – Mike Anderson, Judge
August 2005 Grand Jury Foreman 262nd District Court – Mike Anderson, Judge
February 2007 Grand Jury Foreman 177th District Court – Devon Anderson, Judge
November 2009 Grand Jury Foreman 262nd District Court – Mike Anderson, Judge
August 2011 Grand Jury Foreman 185th District Court – Susan Brown, Judge
2013 Grand Jury Assistant Foreman 179th District Court – Kristin Guiney, Judge
While these facts are ripe for a John LaCarré or John Grisham thriller, they are the truth about the criminal justice system in Harris County. We currently have an appointed District Attorney who faced no opposition in the primary and apparently thinks that it is acceptable to use career grand jurors to indict defendants and conduct political inquisitions.
Patricia Pollard was given a ride on a Houston Police Department helicopter because she was a grand jury foreperson.
We need to eliminate the Harris County grand jury system’s commissioner picked “key-man” selection system to insure that the citizens on our grand juries are representative of our diverse community. Harris County is the last major metropolitan area in Texas to maintain this system and it is time for it to go.
(David Jennings contributed to this post.)
Related Posts
• Runaway Harris County Grand Jury or electoral conspiracy?
• Harris County DA Pat Lykos and that cursory internet search
• Harris County DA Lykos stands up to runaway grand jury
• Harris County DA, HPD Homicide scandal widens
• Harris County DA race, runaway grand jury, pioneer woman
• Harris County DA’s office: Back to the future?
FILED UNDER: HARRIS COUNTY TAGGED WITH: 185TH GRAND JURY, DEVON ANDERSON, GRAND JURY, MIKE ANDERSON, PATRICIA POLLARD, RUNAWAY GRAND JURY, SUSAN BROWN

 

 

Houston grand jury tarnished by foreman being a police officer
Jul 28, 2014

Read more: http://newsfixnow.com/2014/07/28/houston-grand-jury-tarnished-by-foreman-being-a-police-officer/#ixzz38rnNvawf
HOUSTON, TX – A grand jury being led by a cop? Sounds like a losing case before it even begins, doesn’t it?
Houston Police Department officer, James Koteras was thought to be retired in 2003 while serving as a foreman of a grand jury case. However, payroll records show Koteras was an active-duty cop in the auto theft division, until his real retirement in March 2008.
“In the grand jury system, you have police officers often times the foreman of the grand jury…by the way, the foreman of the grand jury can control what evidence comes in for an officer to see,” says civil rights attorney, Randall Kallinen.
The case itself is a conflict of interest for Koteras. He led the investigation in the death of his own colleague, HPD officer Charles Clark, who was shot in April 2003 at a check-cashing store, and that’s the very case the grand jury is deciding with Koteras on the panel!
The Coalition for Justice says this raises concerns that the grand jury selection system needs to be reformed. Shelby Stewart, a leader of Coalition to Defend Civil Rights & Human Dignity, says “When it comes to crimes and incidents where you have police officers, that do things wrong….nothing seems to happen.”
The Coalition for Justice and other community groups hope the district attorney can get involved in this police paradox.
Read more: http://newsfixnow.com/2014/07/28/houston-grand-jury-tarnished-by-foreman-being-a-police-officer/#ixzz38rn3KwHx

The Watch

Washington Posthttp://www.washingtonpost.com/
Transcript reveals shocking grand jury intimidation of witness

By Radley Balko July 17
Here’s an eye-opening report from the Houston Chronicle:
In a rare, disturbing glimpse into the shrouded world of the Texas grand jury system, we can read with our own eyes the beginnings of the young woman’s tortured evolution.

Appellate attorneys were so outraged by a 146-page transcript of Dockery’s testimony before the 208th Harris County grand jury on April 21, 2003, that they entered it into the public record for judges to review.

In it, grand jurors don’t just inquire. They interrogate. They intimidate. They appear to abandon their duty to serve as a check on overzealous government prosecution and instead join the team.
Grand juries are supposed to protect us from false allegations, but the old saying that prosecutors could get a grand jury to “indict a ham sandwich” reflects the reality that most fail on that front. Instead, as this study from the Cato Institute explains, they’re often used to harass and intimidate.

To set up what you’re about to read, the grand jury was investigating Erica Jean Dockery’s boyfriend Alfred Dewayne Brown for murdering a police officer during a robbery. She told police he was on her couch at the time the crime occurred. Grand juries are supposed to be impartial investigators, but here’s a portion of their questioning:
“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 . . .
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 . . .

“I’m just trying to answer all your questions to the best of my ability,” Dockery says.

A bit later, a female juror asks pointedly: “What are you protecting him from?”
“I’m not protecting him from anything. No ma’am. I wouldn’t dare do that,”

Dockery eventually responds. As Rizzo and the grand jurors parse Dockery’s every word and challenge each statement, she complains they’re confusing her.

“No, we’re not confusing you,” a grand juror says. “We just want to find out the truth.” . . .

Although Dockery says repeatedly that she knew it was Brown on her couch that morning, the foreman tries to get her to subscribe to an implausible theory that it was somebody else on her couch.

She doesn’t budge. The group takes a break – one of several.

When the grand jury returns, the foreman says the members are not convinced by Dockery’s story and “wanted to express our concern” for her children if she doesn’t come clean.

“That’s why we’re really pulling this testimony,” the foreman tells her.
The foreman adds that if the evidence shows she’s perjuring herself “then you know the kids are going to be taken by Child Protective Services, and you’re going to the penitentiary and you won’t see your kids for a long time.”
It goes on like that. They eventually browbeat Dockery into completely changing her story. She was then arrested for perjury. She couldn’t make bail. When she was released, she became the prosecution’s star witness. Brown was convicted and sentenced to death. According to the Chronicle’s Lisa Falkenberg, seven years later, a phone record showed up proving that Brown had called Dockery from her apartment on the morning of the murders, supporting his story — and hers, before she was pressured to change it. That important bit of exculpatory evidence was found in the garage of a Houston homicide detective. Brown is still waiting to learn if he’ll get a new trial.

We don’t often get to see the transcripts of grand jury proceedings. Here again, the secrecy is supposed to be for the protection of the wrongly accused. And here again, that same secrecy not only makes the process less transparent, often to the detriment of justice, it can also be used as a weapon.
Civil rights advocates to press for changes in grand jury selections
By Jayme Fraser | July 27, 2014 | Updated: July 27, 2014 9:28pm
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.

Ericka Jean Dockery, a mother of three, insisted the innocence of her boyfriend, who was suspected in a 2003 burglary where Houston Police Officer Charles R. Clark was killed. She told them he had been sleeping on her couch at the time of the crime. The grand jury reportedly intimidated her with discussion of perjury charges and warned that Child Protective Services would take her children away. When she finally did change her story, she was jailed for perjury. The jury foreman in the cop killing case was himself a police officer.

“This lady’s dilemma really has brought the grand jury system on trial before the public in the court of public opinion,” spokesman Johnny Mata said. “How many times does this happen that many people don’t become aware? Reading the transcripts that came out of it, I think people will become not only more aware, but more involved.”
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.
Reply, Reply All or Forward | More
Greater Houston Coalition Press Conference Monday July 29th

Greater Houston Coalition for Justice

Grand Jury System Arraigned for Trial in Harris County
by Cop grand jury foreman revelation in the “Court of Public Opinion”
News Conference statement
Johnny N. Mata
July 28, 2014

Houston,

The latest revelation where a police officer served as a foreman in a Harris County Grand Jury, in a cop-killing, Houston Chronicle’ article 7/24/14 } unveils a disconcerting exploitation of justice, and ignites’ the debate why the grand jury selection process is flawed and in need for reform. This latest revelation has arraigned the Harris County Grand Jury System for Trial in the Court of Public Opinion in Houston, Harris County.

According to the 146-page transcript the behavior of some grand jury members, especially Police Officer James Koteras, and former Dan Rizzo assistant Harris County district attorney, the lead prosecutor is reprehensible. It is a disservice to the family of fallen Houston Police Officer Charles R. Clark (who died in the line of duty) who are forced to relive a dreadful experience.

Ericka Dockery nightmare and prosecution unveils a disconcerting and hideous form of justice that the general public would not become aware under the secrecy of the grand jury processing’s.

This news conference is to put the public on notice, a call to action to the Citizens of Harris County, Texas, to Petition sitting judges, to improve the Selection of Grand Jury Members by Randomized Methods. To advocate for changes in the Texas Grand Jury System by by meeting with your Texas State Representatives and Senators.

In March 2014 the Coalition hosted a Town Hall meeting to discuss problems with the Harris County Grand Jury System and concerns that per a study by University of Houston assistant professor of criminal justice Larry Karson, who also served on the panel for the Town Hall meeting, conducted a study in 2004 that found more than half of the 129 grand jury commissioners selected in Harris County in a two-year span had close ties to the legal system.
The study found that judges, attorneys, court employees, bail bond agents, probation officers and law enforcement officers served on the grand jury.
The latest revelation where a police officer served as a foreman in a Harris County Grand Jury, in a cop-killing, Houston Chronicle’ article 7/24/14 } unveils a disconcerting desecration of justice, and ignites’ the debate why the grand jury selection process is flawed and in need for reform.

We feels that when law enforcement officers serve on grand juries, where an officer has been shot, police shooting or police misconduct is a conflict of interest and the grand jury is in need of reform.

The latest revelation where a police officer served as a foreman in a Harris County Grand Jury, in a police-killing, points to the fact that Harris County grand juries have cleared Houston police officers 288 consecutive times in police shootings
Per the Houston Chronicle Report Bulletproof: PART 1 (2013)
• From 2008 to 2012, HPD officers shot 121 people, 52 of them fatally, more than a quarter of the civilians shot by the Houston Police Department during that time were unarmed. Of the unarmed people shot, 10 died. Harris County grand juries have cleared HPD officers in shootings 288 consecutive times.

We asked the questions:
• Were law enforcement officers on the grand juries’ that cleared Houston police officers 288 consecutive times in police shootings?

• How many other law enforcement officers have severed on grand juries in other police officers shooting or other police misconduct?
FYI
The last time an HPD officer was charged for a shooting was in March 2004, when Arthur Carbonneau was indicted in the death of 14-year-old Eli Escobar Jr. Carbonneau was convicted of negligent homicide in that case. Since then Houston police officers have been cleared by Harris County grand juries 288 consecutive times for shootings.
###

Additional Houston Chronicle Articles on the Grand Jury
Houston Chronicle

STEVE McVICKER, Copyright 2004 Houston Chronicle | November 14, 2004
Study: Police ties common in grand juries
Are judges taking a narrow view of justice?

The grand jury selection method often seats jurors who have ties to law enforcement
A 1940 ruling by the U.S. Supreme Court requires that grand juries— the panels of citizens that decide whether criminal suspects will be indicted — represent “a broad cross-section” of the community.
But 64 years later, law enforcement officers and others with courthouse jobs that make them less likely to sympathize with a defendant are a strong presence on Harris County grand juries. And even though Hispanics make up a third of the county’s population, only 9 percent of grand jurors are Hispanic, and most of those jurors are nonvoting alternates.
For example, four of the 12 grand jurors from the August 2004 262nd State District Court have ties to the local legal system. Two — including the foreman — are retired Houston police officers. One was a former administrator with the High School for Law Enforcement and Criminal Justice. Another had worked as a supervisor in the Harris County District Clerk’s Office, the administrative office for criminal and civil proceedings.
The narrow variety of grand jurors came to light in a University of Houston-Downtown study conducted by criminal justice instructor Larry Karson, who reviewed 32 Harris County grand juries impaneled in 2002 and 2003, with further reporting by the Houston Chronicle.
Part of the problem is due to the selection process. Of Texas’ five largest counties, only Harris, Travis and Tarrant still choose grand jurors exclusively through commissioners selected by the presiding judge, who often end up being his colleagues or employees, who then turn to their colleagues.
Of the 129 Harris County grand jury commissioners selected in 2002 and 2003, 65 — just more than 50 percent — were in some way linked to the area’s legal establishment. The study identified those individuals as judges, attorneys, court employees, bail-bond agents, probation officers and law enforcement officers. One judge even selected three of his court employees as grand jury commissioners.
“It’s not that (the commissioners) are intentionally conspiring or doing something bad,” Karson said. “But it’s not a fair representation of the community to have half of your grand jury commissioners come out of the court system.”
For appearance’s sake
A Chronicle review earlier this year of 193 officers from 18 local law enforcement agencies who killed or wounded citizens in the past five years showed that since 1999, only two of those officers have been indicted. Additionally, according to the Texas Department of Criminal Justice, Harris County has more people on the state’s death row than do the next seven largest Texas counties — with a combined population twice that of Harris County.
Karson and others said that with Harris County’s tough-on-crime reputation, it is especially important for all involved to appear fair and impartial.
“When you’re indicting somebody for the ultimate crime for which we give the ultimate penalty, it’s important that the system not just be fair but, in addition, look fair,” said Murry B. Cohen, a respected former jurist who served on the state’s 1st Court of Appeals before returning to practice law in June 2002. “The system should strive to avoid creating legitimate questions about its own legitimacy.”
The study also found:
•During 2002 and 2003, at least one grand jury and one trial-court jury operated in violation of state law by seating members who already had served as a commissioner or juror more than once in the previous 12 months.
•A Houston police officer served as a member of one of the grand juries that investigated the Houston Police Department crime lab scandal.
•Retirees frequently and repeatedly serve as grand jurors. Karson and Jim Brooks, a grand jury foreman who is a retiree, said older people tend to take the word of authority figures such as district attorneys more often than younger people do.
State District Judge Cliff Stricklin of Dallas County said that when he first assumed the bench, he used the commissioner system but has since gone to the jury-pool method, in which qualified individuals are chosen from the regular trial-court jury pool.
“I think it opens the doors to people who wouldn’t normally even know about how to serve on a grand jury,” said Stricklin, a Republican.
But in Harris County, the selection of grand juries remains tilted toward those connected to the system. Grand jury commissioners are selected by the 21 state criminal district court judges of Harris County, most of whom were career local prosecutors before becoming judges.
Most local judges contacted by the Chronicle were quick to defend the commissioner system.
“My grand juries, as a rule, have been very diverse, and I work very hard to find people who will serve from different neighborhoods and different socioeconomic backgrounds,” said state District Judge Kent Ellis. “I think focusing on the commissioners is the wrong place to look.”
Picks are close at hand
A look at Ellis’ grand jury commissioner selections, however, reveals that he didn’t search very far to find them. In August 2002, Ellis chose two court reporters and an employee of the Harris County District Clerk’s Office. One year later, Ellis used two of the same three people as commissioners.
State District Judge Bill Harmon didn’t look that far. In November 2002, Harmon chose three employees of his court to serve as grand jury commissioners. He declined to discuss those selections with the Chronicle.
Though Harmon was the only Harris County judge to limit his choices to employees of his own court, most judges chose people connected to the system. That includes former state District Judge Ted Poe, who was just elected to Congress.
In February 2002, Poe’s selections included Elaine Stolte, a former court employee who is now executive director of the Harris County Children’s Assessment Center, a quasi-law-enforcement agency that deals with victims of suspected child abuse.
Poe also selected Judge Eva Guzman of the 14th Court of Appeals as a grand jury commissioner. She was one of only a handful of Hispanics to serve as a commissioner in 2002 and 2003.
Karson said several Hispanics were named to fill nonvoting alternate positions on grand juries.
“There also was not one Hispanic grand jury foreman,” Karson said. “And then they try to give you the appearance of Hispanic participation by appointing them as alternates who don’t vote.”
But while Poe has no apologies for his commissioner selections, nor the use of the commissioner method of selecting grand juries, he was, nevertheless, surprised by the study’s findings. And he said he thinks it would be a good idea to have a mix of the two selection methods.
Poe also would like to see an end to the practice of what he calls “grand jury shopping” by the District Attorney’s Office. There are no restrictions on how many times prosecutors can present criminal allegations to as many grand juries as they need to obtain an indictment, he said.
Prosecutors’ role
“I think the District Attorney’s Office selects the grand juries that they want to present cases to — especially the hard cases,” Poe said.
“The District Attorney’s Office should present cases to those grand juries in a lottery system. That’s the fairest way for the defendant, the victim and the state.”
But Andy Tobias, the grand jury coordinator for local prosecutors, said there is a rule in the District Attorney’s Office prohibiting “jury shopping.” He adds that the only time prosecutors go to a second grand jury is in cases where a police officer has been involved in a shooting and a prosecutor discovers that a law enforcement officer is a member of the initial grand jury.
That in-house rule, however, did not prohibit prosecutors from pursuing a capital murder indictment from a grand jury with a retired Houston police officer in a case involving a slain HPD officer.
In April 2003, Houston police officer Charles Clark was shot to death while responding to a robbery at a check-cashing store. Two men were subsequently charged with capital murder. One of the two has been convicted and sentenced to death. The suspects were indicted by a 262nd District Court grand jury that included former HPD officer Andy Geffert, who served as an aide to former Police Chief B.K. Johnson.
Similarly, HPD officer Ora L. Chandler, assigned to the physical abuse unit of the department’s juvenile division, served as a member of the grand jury that investigated wide-ranging problems at the HPD crime lab, which sometimes processed her work.
Breaking the rules
The grand jury returned no crime-lab-related indictments but issued a statement critical of both the lab and the District Attorney’s Office.
Chandler said she was upset by the crime lab debacle and took a harsher view of it than did some other grand jury members.
“I don’t think I was empathetic toward the crime lab workers,” Chandler said.
Although there is nothing statutorily improper with police officers sitting on grand juries that investigate police matters, there are specific restrictions about how frequently grand jury members can serve.
State law prohibits any person from serving as a grand jury commissioner and/or grand juror more than once in 12 months.
But during the two years on which the UH-DT study focused, at least one Harris County grand jury and one group of grand jury commissioners were impaneled despite violations of that rule.
In August 2003, Sgt. Cindy Vara of the Precinct 1 Constable’s Office served in violation of the statute when she was appointed as a commissioner by state District Judge Don Stricklin after having been a commissioner for state District Judge Carol Davies in November 2002.
Likewise, in August 2002, Xavier Pulido, a Harris County adult-probation officer, was selected as a grand juror by state District Judge Paul Murphy after having served as a grand jury commissioner in February 2002 for state District Judge Susan Brown.
Both Pulido and Vara told the Chronicle they could not recall exactly when they served, and neither was aware of any possible conflict with state law.
Pulido and Vara are not the only grand jurors and commissioners to frequently serve. County grand jury records are brimming with examples of citizens who are repeatedly named as grand jurors and commissioners year after year.
‘Unconstitutional’ operation
Of the 12 grand jurors from 262nd District Court who issued capital murder indictments in the shooting death of HPD’s Clark in 2003, four of them, including retired officer Geffert, were selected by the same court for grand jury duty in 2004.
State District Judge Mike Anderson, who presides over the 262nd court, says he is proud of his choice of grand jurors, and he singled out former officers Geffert and Massey as men of great integrity. Anderson also points out that, considering the amount of time involved in serving, it’s not easy to find people to sit on a grand jury.
“There’s not a huge contingent of people who want to do this,” Anderson said.
He said, however, he would not be opposed to looking at the possibility of Harris County using some sort of mix of the commissioner and jury pool methods of selecting grand juries in order to get panels more representative of the community.
“I don’t have all the answers, and I’m all about learning,” Anderson said.
As for jurors or commissioners serving too often, the head of the district attorney’s appellate division said the violations are without consequence if the criminal cases involved already have been adjudicated.
“If we’re talking about indictments handed down some period of time ago, and those cases have already been disposed of, it’s too late to complain about it,” Assistant District Attorney Bill Delmore said.
But Troy McKinney, a recent past president of the Harris County Criminal Defense Lawyers Association, said the way grand juries operate in Harris County is “unconstitutional.”
“The grand jury is supposed to be a buffer between the state and the citizenry to prevent abuses,” McKinney said.
“But (the judges and prosecutors) just make up the rules that they think make it the most expedient for them, regardless of whether it complies with the law or not.”
Tobias acknowledged that he used to forward the names of people who wanted to serve on grand juries directly to courts. He says he now tells such volunteers to call the courts themselves.
In January, state Sen. John Whitmire, D-Houston, plans to hold hearings into problems at both the HPD and Texas Department of Public Safety crime laboratories. He said he also would like to take a look at some of the concerns about the grand jury system.
“I want to throw this into our hearings and just pull some district attorneys and judges in there and ask them to explain it to us,” Whitmire said. “There needs to be some transparency to the system.”
steve.mcvicker@chron.com

Houston Chronicle
MARY FLOOD, Copyright 2007 Houston Chronicle | January 19, 2008
Q&A: Grand juries serve as a buffer
LEGAL Q&A
Page 1 of 1
Citizen grand juries have an important role in the criminal justice system in Texas and to explain it, Chronicle reporter Mary Flood spoke to several legal experts and law professors to get some questions answered about the process.
Q: What is a state grand jury and what’s it for?
A: The point of a grand jury is to provide a common-sense buffer between the government and the citizenry. The group is there basically to keep prosecutors from overstepping. Anyone arrested and charged with a felony has a right to see if a grand jury thinks there’s probable cause to keep the charges in place.
Grand juries are often used as investigative bodies. The grand jury, usually at the request of a prosecutor, subpoenas evidence and witnesses to come testify under oath.
There are federal grand juries too and they are called in a different manner. But in Harris County, a state grand jury is composed of 12 members and two alternates impaneled by a judge from a list provided by several “commissioners” the judge appoints. The panel meets for three months, but can be extended.
The idea is that the citizens on the grand jury should represent a cross-section of the community. But local grand juries have been criticized by the defense bar for having too many people who serve on multiple grand juries and too many people with connections to the justice system.
Q: How does a grand jury get its cases?
A: The primary way the citizens on a grand jury hear about potential crimes and criminals is through prosecutors who present a set of facts and sometimes witnesses before the panel. This accounts for the vast majority of the cases heard by grand juries.
Most cases take a few minutes as a prosecutor explains the basics of a robbery or a drug deal charge. But sometimes a series of witnesses are presented and the prosecutors ask them questions.
Once in awhile, citizens write to a grand jury and ask to speak about wrongdoing or present evidence themselves.
And the grand jurors may take it upon themselves to request to hear testimony or evidence on a particular case. For example, this has happened in Harris County in police shooting cases.
Q: Do prosecutors tell grand juries what they want them to do?
A: Yes, prosecutors make recommendations. They tell the grand jury whether they want an indictment, or a “true bill,” or no charge which is called a “no bill.”
The vast majority of the time, grand juries do what prosecutors ask. This is why defense attorneys often complain that grand juries are “rubber stamps” for prosecutors and repeat a New York judge’s oft-quoted statement about a prosecutor’s ability to “indict a ham sandwich.”
Q: If a grand jury found enough evidence to indict, can a prosecutor drop the charges?
A: Yes, a prosecutor can immediately drop the charges.
A grand jury decision does not bind the district attorney to prosecute the case.
This is because the prosecutor is the representative of the state, responsible for proceeding in criminal cases in which there appears to be sufficient evidence to likely get a conviction. The prosecutor also has a duty not to proceed when it appears there is not enough evidence.
The grand jury is designed to protect citizens from overzealous prosecutors. It is not designed to protect the public from prosecutors who won’t proceed on a case.
Q: Does it happen often that grand juries indict and prosecutors then dismiss the indictments?
A: This is rare, but it does happen.
When John B. Holmes was the Harris County district attorney, his office immediately dropped charges against some former city public works employees indicted by a grand jury in 2000.
Holmes said there wasn’t enough evidence to prosecute. He also recalls dropping a capital murder charge down to a murder charge, though a grand jury specifically indicted the case to proceed as a death penalty case.
Basically, it remains the prosecutor’s prerogative to lower or dismiss indicted charges.
Q: What can grand jurors do if they think it unjust that an indicted case won’t proceed?
A: If the grand jury is still in session, it can reindict.
Grand jurors can also write a report to the judge who impaneled them, which has also been done in some police shooting cases locally.
And grand jurors may be able to legally speak out. But deliberations and any evidence presented to a grand jury is secret and grand jurors could be found in contempt for revealing that information. They would have to walk a careful line to speak only about the process.
And just like any other citizen, grand jurors could write to other grand juries and ask that another panel look into the same matter.mary.flood@chron.com

JOSEPH RICHARD GUTHEINZ JR, Copyright 2008 Houston Chronicle | June 1, 2008
Grand jury system’s a bad joke on justice
Harris County grand jurors are too white, too far right. Minorities, Democrats pay unfair price
Page 1 of 1
I didn’t want to write this, but I feel compelled to after my recent term of service on a Harris County grand jury.
Our grand jury system in Harris County is broken. Something desperately needs to be done to fix it. Justice is at stake.
Grand juries shouldn’t be confused with the criminal and civil juries (petit juries) that dispense justice in our state district courts. A grand jury’s work is done long before a case comes to trial by jury. A grand jury consists of 12 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 Harris County, grand jurors are selected by grand jury commissioners chosen by state district court judges. These commissioners are instructed to select grand jurors who ”represent a broad cross section of the population of the county, considering the factors of race, sex and age.”
This is laughable. The grand jurors that are chosen in Harris County are too white and too conservative. Most grand juries here don’t even come close to reflecting the ethnic, racial and political makeup of Texas’ most populous county. I know mine didn’t.
Thanks to years of struggle, Americans of all backgrounds can vote in Harris County, as they can across the country. Poll taxes and literacy tests, which were both blatant efforts by the white majority to limit the right of minorities to vote, are a thing of the past. But while extending voting rights to all citizens has largely been a success, the right to serve on a Harris County grand jury is a throwback to our segregated past. In Harris County, it is little more than a clever way for the white Republican majority to limit minority and Democratic Party representation on grand juries.
If you were to take a survey of Harris County residents, my guess is that most would be uninformed about the existence, purpose and/or selection process to serve on a grand jury. By fostering an organization — the grand jury – that exists in the shadows of our legal system, the power elite effectively maintains a segregated grand jury system. By using a system that closely resembles the old spoils system, the winning political party gets to select who will serve as a grand juror.
While I respect the Harris County judges who are directly involved in the selection of the grand jury members or indirectly involved through the actions of their handpicked surrogates known as commissioners (as I respect those who serve and have served on the Harris County grand juries). However, after serving on a Harris County grand jury I can no longer respect the system. I find it to be inherently discriminatory and, therefore, fundamentally unfair.
Grand juries have tremendous powers to investigate and indict individuals on criminal charges. For this reason, it matters greatly who is appointed to serve on a grand jury. It’s clear to me that ordinary persons could find themselves in the cross-hairs of a partisan grand jury.
Contrary to what you may have guessed, I am not a liberal. On the contrary, I’m likely the most conservative person you will ever meet. My parents were both Marines, and I was an Army officer who became a federal law enforcement officer. I’m now retired. I am the military topics editor for the Conservative Voice, a Web site dedicated to ”faith, family, freedom,” and a member of the Republican National Lawyers Association. I was appointed by Gov. Rick Perry to a state advisory committee.
As a college instructor I frequently teach about the grand jury system in the United States and discuss how it has evolved since King Henry II created the first grand jury in England in 1166. I like to discuss how King John, probably at sword’s point, signed the Magna Carta in 1215, which gave the earliest known formal recognition of a grand jury system, a system then and there cemented into law. I like to discuss the constitutional right to a federal grand jury in the United States and the fact that not every state uses a grand jury to formally find probable cause to bind over a felon for trial, as is done at the federal level.
As a teaching tool for my students I have actually had them serve as members of a mock Harris County grand jury and decide whether a person in the news should be indicted or not. My students have played the role of the grand jury foreman, a person handpicked by the judge from the members of the grand jury selected to serve. In Harris County this person is most likely to be a Republican Party activist. A district court judge also picks the deputy or assistant foreman, who presides over the grand jury in the absence of the foreman. The grand jury secretary and sergeant at arms are handpicked by the foreman from the remaining 12 grand jury members serving on the grand jury.
At the end of January, I led my college class in a mock grand jury at the Friendswood municipal court, where my class considered the case against Marine Cpl. Cesar Laurean, who is accused of raping and subsequently killing Marine Cpl. Maria Lauterbach near their Marine Corps duty station of Camp Lejeune, N.C. Based on information revealed in press reports, my students indicted Laurean on five felony counts, including first-degree murder.
My interest in the grand jury system dates back before I taught the topic in college classes or practiced law or went to law school. I first became intrigued with the grand jury system when I served as a federal agent and had the privilege to testify before federal grand juries all over the United States. I was impressed then by the professionalism of both the federal prosecutors and the grand jurors themselves, who I found to be fair, knowledgeable and objective.
Unlike Harris County grand juries, federal grand juries are selected at random from those registered to vote in a particular jurisdiction, with the stated goal that the 23 people selected to serve on the grand jury represent a fair cross section of the community from which they were drawn.
I’m a hands-on person and prefer to teach from experience rather than simply a text book, so I volunteered to serve on one of the five grand juries impaneled in Harris County for the February 2008 term. In Texas, grand juries serve for three months unless extended.
The first difference I discovered between the federal system and the system Harris County employs pertains to selection process, which for Harris County is all-volunteer.
While I expected to be selected from a large panel of grand jury candidates, I was surprised when my entire panel consisted of only 14 individuals, neatly filling the 12 grand jury positions, with two alternates (the two alternates had previously been designated as such). I was never interviewed, communicated with or saw any of the grand jury commissioners designated by district judges to help select grand jury members.
Unlike the federal system, Texas only uses 12 grand jurors on a grand jury, which is fine, providing the selection process ensures that the grand jury will be representative of the community it serves. Unfortunately for the disproportionately high number of minority defendants in Harris County, it does not do this.
If this ultraconservative Republican was surprised by the lack of competition to be part of a grand jury in Harris County, I was absolutely astonished by the demographics which seem to spread across all the grand juries impaneled. They were largely made up people from my ”tribe,” which can best be described as white, quite right, conservative Republicans.
If you took a cross-section of most of the grand jurors who have served in Harris County over the last several years, I would probably look like a Ted Kennedy liberal by comparison. It is not that I am liberal, but that most of the others selected to serve on the grand juries are so conservative. Given my conservative credentials, that is quite telling.
Compounding the problem in this county is the reality that many grand jurors serve year after year, thus maintaining the status quo of an inherently segregated system.
I believe in the law and in fair play. I have no doubt that Harris County judges and grand jurors are all honorable people committed to doing the right thing — or at least view themselves as such. But there is something fundamentally unfair about a grand jury system that does not reflect the racial, political and ethnic diversity of the community it serves and the people it indicts.
The most honorable and fair-minded grand jurors bring with them their own understanding of truth, an understanding that could affect their finding of probable cause to vote for or against a true bill (indictment).
Grand jurors have a sacred duty to do right by their fellow men and women, a duty which can be innocently ”colored” by their race and political leanings.I’m glad I served on a grand jury. I just wish Harris County grand jurors represented the rich diversity of the community they serve. Alas, they do not.
When I was a federal agent investigating corporations I was always concerned about how a group mind-set could cause good people to do bad things. The danger with the Harris County grand jury system is twofold:
It lends itself to inadvertent and possibly purposeful discrimination.
It could lend itself to corruption.
How so?
When the grand jurors, the prosecutors and the judges generally share the same world view, there is little room for dissent. Good and bad may not be limited to what the law books state, but may include political animus. The grand jury could be used as a weapon to viciously pursue and destroy political opponents. Fair-minded grand jurors may be coerced into silence because of their own political self-interest or out of fear of being held in contempt by the judge they serve.
This is not to say that the system is now corrupt, but that it is corruptible. Even in writing this opinion piece I am severely constrained in what I am permitted to say. If I witnessed wrongdoing in the grand jury I was assigned to, I am sworn to silence and would be limited in my options in terms of whom I could tell. I could tell the judge who selected the grand jury of the wrongdoing I observed, but then I would be forced to rely on his or her honor to do the right thing.
Integrity is a funny thing. In broad daylight, people act as we would hope they should, but in the shadows of grand jury secrecy who knows how people will behave?
As an officer of the court, I would hope for and expect the best; but as a student of human behavior, I often fear the worst.
For those who expect better things should the Democratic Party sweep into power in Harris County in November, I wouldn’t be so sure. A transfer in power without a commitment to change would likely bring a continuation in the current discriminatory practices. The only difference, I fear, would be a reshuffling of the victims.

 

 

 

STEVE McVICKER, Copyright 2004 Houston Chronicle | November 14, 2004
Some Grand Juries Seated From Judges’ Backyards
• Grand Juries by Profession
• Four out of 12 members of an August 2004 262nd State District Court grand jury have ties to Law Enforcement.
• Selection system can favor those with law enforcement ties.
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Houston Chronicle
Study: Police ties common in grand juries
Are judges taking a narrow view of justice?
The grand jury selection method often seats jurors who have ties to law enforcement
STEVE McVICKER, Copyright 2004 Houston Chronicle | November 14, 2004
A 1940 ruling by the U.S. Supreme Court requires that grand juries— the panels of citizens that decide whether criminal suspects will be indicted — represent “a broad cross-section” of the community.
But 64 years later, law enforcement officers and others with courthouse jobs that make them less likely to sympathize with a defendant are a strong presence on Harris County grand juries. And even though Hispanics make up a third of the county’s population, only 9 percent of grand jurors are Hispanic, and most of those jurors are nonvoting alternates.
For example, four of the 12 grand jurors from the August 2004 262nd State District Court have ties to the local legal system. Two — including the foreman — are retired Houston police officers. One was a former administrator with the High School for Law Enforcement and Criminal Justice. Another had worked as a supervisor in the Harris County District Clerk’s Office, the administrative office for criminal and civil proceedings.
The narrow variety of grand jurors came to light in a University of Houston-Downtown study conducted by criminal justice instructor Larry Karson, who reviewed 32 Harris County grand juries impaneled in 2002 and 2003, with further reporting by the Houston Chronicle.
Part of the problem is due to the selection process. Of Texas’ five largest counties, only Harris, Travis and Tarrant still choose grand jurors exclusively through commissioners selected by the presiding judge, who often end up being his colleagues or employees, who then turn to their colleagues.
Of the 129 Harris County grand jury commissioners selected in 2002 and 2003, 65 — just more than 50 percent — were in some way linked to the area’s legal establishment. The study identified those individuals as judges, attorneys, court employees, bail-bond agents, probation officers and law enforcement officers. One judge even selected three of his court employees as grand jury commissioners.
“It’s not that (the commissioners) are intentionally conspiring or doing something bad,” Karson said. “But it’s not a fair representation of the community to have half of your grand jury commissioners come out of the court system.”
For appearance’s sake
A Chronicle review earlier this year of 193 officers from 18 local law enforcement agencies who killed or wounded citizens in the past five years showed that since 1999, only two of those officers have been indicted. Additionally, according to the Texas Department of Criminal Justice, Harris County has more people on the state’s death row than do the next seven largest Texas counties — with a combined population twice that of Harris County.
Karson and others said that with Harris County’s tough-on-crime reputation, it is especially important for all involved to appear fair and impartial.
“When you’re indicting somebody for the ultimate crime for which we give the ultimate penalty, it’s important that the system not just be fair but, in addition, look fair,” said Murry B. Cohen, a respected former jurist who served on the state’s 1st Court of Appeals before returning to practice law in June 2002. “The system should strive to avoid creating legitimate questions about its own legitimacy.”
The study also found:
•During 2002 and 2003, at least one grand jury and one trial-court jury operated in violation of state law by seating members who already had served as a commissioner or juror more than once in the previous 12 months.
•A Houston police officer served as a member of one of the grand juries that investigated the Houston Police Department crime lab scandal.
•Retirees frequently and repeatedly serve as grand jurors. Karson and Jim Brooks, a grand jury foreman who is a retiree, said older people tend to take the word of authority figures such as district attorneys more often than younger people do.
State District Judge Cliff Stricklin of Dallas County said that when he first assumed the bench, he used the commissioner system but has since gone to the jury-pool method, in which qualified individuals are chosen from the regular trial-court jury pool.
“I think it opens the doors to people who wouldn’t normally even know about how to serve on a grand jury,” said Stricklin, a Republican.
But in Harris County, the selection of grand juries remains tilted toward those connected to the system. Grand jury commissioners are selected by the 21 state criminal district court judges of Harris County, most of whom were career local prosecutors before becoming judges.
Most local judges contacted by the Chronicle were quick to defend the commissioner system.
“My grand juries, as a rule, have been very diverse, and I work very hard to find people who will serve from different neighborhoods and different socioeconomic backgrounds,” said state District Judge Kent Ellis. “I think focusing on the commissioners is the wrong place to look.”

Picks are close at hand
A look at Ellis’ grand jury commissioner selections, however, reveals that he didn’t search very far to find them. In August 2002, Ellis chose two court reporters and an employee of the Harris County District Clerk’s Office. One year later, Ellis used two of the same three people as commissioners.
State District Judge Bill Harmon didn’t look that far. In November 2002, Harmon chose three employees of his court to serve as grand jury commissioners. He declined to discuss those selections with the Chronicle.
Though Harmon was the only Harris County judge to limit his choices to employees of his own court, most judges chose people connected to the system. That includes former state District Judge Ted Poe, who was just elected to Congress.
In February 2002, Poe’s selections included Elaine Stolte, a former court employee who is now executive director of the Harris County Children’s Assessment Center, a quasi-law-enforcement agency that deals with victims of suspected child abuse.
Poe also selected Judge Eva Guzman of the 14th Court of Appeals as a grand jury commissioner. She was one of only a handful of Hispanics to serve as a commissioner in 2002 and 2003.
Karson said several Hispanics were named to fill nonvoting alternate positions on grand juries.
“There also was not one Hispanic grand jury foreman,” Karson said. “And then they try to give you the appearance of Hispanic participation by appointing them as alternates who don’t vote.”
But while Poe has no apologies for his commissioner selections, nor the use of the commissioner method of selecting grand juries, he was, nevertheless, surprised by the study’s findings. And he said he thinks it would be a good idea to have a mix of the two selection methods.
Poe also would like to see an end to the practice of what he calls “grand jury shopping” by the District Attorney’s Office. There are no restrictions on how many times prosecutors can present criminal allegations to as many grand juries as they need to obtain an indictment, he said.
Prosecutors’ role
“I think the District Attorney’s Office selects the grand juries that they want to present cases to — especially the hard cases,” Poe said.
“The District Attorney’s Office should present cases to those grand juries in a lottery system. That’s the fairest way for the defendant, the victim and the state.”
But Andy Tobias, the grand jury coordinator for local prosecutors, said there is a rule in the District Attorney’s Office prohibiting “jury shopping.”
He adds that the only time prosecutors go to a second grand jury is in cases where a police officer has been involved in a shooting and a prosecutor discovers that a law enforcement officer is a member of the initial grand jury.
That in-house rule, however, did not prohibit prosecutors from pursuing a capital murder indictment from a grand jury with a retired Houston police officer in a case involving a slain HPD officer.
In April 2003, Houston police officer Charles Clark was shot to death while responding to a robbery at a check-cashing store. Two men were subsequently charged with capital murder. One of the two has been convicted and sentenced to death. The suspects were indicted by a 262nd District Court grand jury that included former HPD officer Andy Geffert, who served as an aide to former Police Chief B.K. Johnson.
Similarly, HPD officer Ora L. Chandler, assigned to the physical abuse unit of the department’s juvenile division, served as a member of the grand jury that investigated wide-ranging problems at the HPD crime lab, which sometimes processed her work.
Breaking the rules
The grand jury returned no crime-lab-related indictments but issued a statement critical of both the lab and the District Attorney’s Office.
Chandler said she was upset by the crime lab debacle and took a harsher view of it than did some other grand jury members.
“I don’t think I was empathetic toward the crime lab workers,” Chandler said.
Although there is nothing statutorily improper with police officers sitting on grand juries that investigate police matters, there are specific restrictions about how frequently grand jury members can serve.
State law prohibits any person from serving as a grand jury commissioner and/or grand juror more than once in 12 months.
But during the two years on which the UH-DT study focused, at least one Harris County grand jury and one group of grand jury commissioners were impaneled despite violations of that rule.
In August 2003, Sgt. Cindy Vara of the Precinct 1 Constable’s Office served in violation of the statute when she was appointed as a commissioner by state District Judge Don Stricklin after having been a commissioner for state District Judge Carol Davies in November 2002.
Likewise, in August 2002, Xavier Pulido, a Harris County adult-probation officer, was selected as a grand juror by state District Judge Paul Murphy after having served as a grand jury commissioner in February 2002 for state District Judge Susan Brown.
Both Pulido and Vara told the Chronicle they could not recall exactly when they served, and neither was aware of any possible conflict with state law.
Pulido and Vara are not the only grand jurors and commissioners to frequently serve. County grand jury records are brimming with examples of citizens who are repeatedly named as grand jurors and commissioners year after year.
‘Unconstitutional’ operation
Of the 12 grand jurors from 262nd District Court who issued capital murder indictments in the shooting death of HPD’s Clark in 2003, four of them, including retired officer Geffert, were selected by the same court for grand jury duty in 2004.
State District Judge Mike Anderson, who presides over the 262nd court, says he is proud of his choice of grand jurors, and he singled out former officers Geffert and Massey as men of great integrity. Anderson also points out that, considering the amount of time involved in serving, it’s not easy to find people to sit on a grand jury.
“There’s not a huge contingent of people who want to do this,” Anderson said.
He said, however, he would not be opposed to looking at the possibility of Harris County using some sort of mix of the commissioner and jury pool methods of selecting grand juries in order to get panels more representative of the community.
“I don’t have all the answers, and I’m all about learning,” Anderson said.
As for jurors or commissioners serving too often, the head of the district attorney’s appellate division said the violations are without consequence if the criminal cases involved already have been adjudicated.
“If we’re talking about indictments handed down some period of time ago, and those cases have already been disposed of, it’s too late to complain about it,” Assistant District Attorney Bill Delmore said.
But Troy McKinney, a recent past president of the Harris County Criminal Defense Lawyers Association, said the way grand juries operate in Harris County is “unconstitutional.”
“The grand jury is supposed to be a buffer between the state and the citizenry to prevent abuses,” McKinney said.
“But (the judges and prosecutors) just make up the rules that they think make it the most expedient for them, regardless of whether it complies with the law or not.”
Tobias acknowledged that he used to forward the names of people who wanted to serve on grand juries directly to courts. He says he now tells such volunteers to call the courts themselves.
In January, state Sen. John Whitmire, D-Houston, plans to hold hearings into problems at both the HPD and Texas Department of Public Safety crime laboratories. He said he also would like to take a look at some of the concerns about the grand jury system.
“I want to throw this into our hearings and just pull some district attorneys and judges in there and ask them to explain it to us,” Whitmire said. “There needs to be some transparency to the system.”
steve.mcvicker@chron.com
The Texas Observer
Houston Cops Always Justified in Shootings. Always.
by Emily DePrang Published on Thursday, August 28, 2014, at 3:28 CST

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One of the many disturbing facts that have come to light in the weeks since Michael Brown was killed by a police officer is that for all the crime data tracked by the government, there is no central record kept of law enforcement use of deadly force. Individuals and groups have been making their own databases, but a citizen would need to file open records requests to learn about his or her community.
You may have asked yourself, “Was Michael Brown’s killing lawful? And could an unlawful shooting happen in my hometown?”
Well, good news, if you live in Houston. The Texas Observer has looked at the numbers and the answer is, no. Your police force cannot wrongly shoot you.
It just doesn’t happen. Well, deadly police shootings do happen in Houston at an average of one every three weeks. But none of them is inappropriate. Every shooting by a Houston Police Department officer is investigated by HPD’s Internal Affairs and Homicide divisions. Between 2007 and 2012, according to HPD records, officers killed citizens in 109 shootings. Every killing was ruled justified.
The 112 instances of an officer shooting and injuring a person were justified, too.
So were the 104 times an officer wounded an animal, and the 225 times an officer killed an animal.
There were 16 shootings found “not justified,” but they were all ruled accidental.
In more than one in five cases in which officers fired on citizens, the citizen was unarmed.
Skeptics might say those numbers show police bias in holding their own accountable. I would direct these skeptics to the grand jury system.
Harris County grand juries have cleared HPD officers for on-duty shootings almost 300 times in a row. No Houston officer has been indicted for a shooting in a decade.
Don’t you feel better?
Now, the Houston Chronicle’s Lisa Falkenberg recently reported on a Houston cop who bullied and threatened a witness while serving as foreman for a grand jury investigating the killing of a Houston cop. And this man had served on at least nine other grand juries. But that’s probably an isolated case.
Besides the grand jury system, there are other safeguards against misuse of police power in Houston. There’s the Independent Police Oversight Board, which consists of four panels of citizens that divvy up and review HPD’s Internal Affairs investigations. The panels don’t have subpoena power; they can’t do their own investigations; they can’t interview witnesses; they can’t force anything to happen. But they can suggest that Internal Affairs do a more thorough investigation or reconsider its findings. Internal Affairs doesn’t have to do anything they say, but it’s nice that the people have a voice.
Last week, Houston City Councilman C.O. Bradford, a former HPD chief wrote an editorial in the Chronicle saying Michael Brown’s killing was “a wake-up call for Houston” and noted that the Independent Police Oversight Board was “without substantive authority.” Yet his solution was to let stakeholder groups like the NAACP appoint their own representatives to the authority-less board.
That’s different from the idea stakeholders themselves have, which is to replace the IPOB with a citizen oversight board with subpoena power—that is, the ability to do their own investigations into shootings or alleged misconduct.
One of those stakeholders is a Houston police officer I met for coffee this week. He had read the two features I wrote on HPD shootings, beatings, and lax accountability for the Observer last year and just wanted to talk. A 20-year veteran of the department, he plans to leave the force soon. There are too many problems, and the department is so sealed, so shielded from scrutiny, he said that “It’s like a Communist country. A lot of us wish we could talk but they’re nervous as a cat in a room full of rocking chairs…. Boy, I hope they get that citizen oversight board soon.”
But if we did, all that good news might go away.