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Whose peers? By John Muir Austin New indictments of assault with intent to murder have been returned against five of the Houston 12 defendants. Texas’ only black state district court judge, Andrew L. Jefferson, Jr., quashed the original indictments because chicanos had been excluded from the grand jury that indicted them \(Obs., “Political intelligence,” June The case is now back in Judge Jefferson’s court and the defense lawyers plan to renew their attack on the grand jury system in Harris County. Future action on the case may determine whether Jefferson’s action was simply the isolated act of a courageous judge or the beginning of the end for Texas’ antiquated grand jury system. It all started when members of Youth for a demonstration last October outside a Houston synagogue where funds for Israel were being raised. The YAWF wanted to protest U.S. involvement in the Middle East war. A 30-minute peaceful demonstration was interrupted by a fight among police, persons attending the synagogue rally and the demonstrators. Twelve demonstrators were arrested and charged with aggravated assault on a police officer. Five \(Jost Barriga, William Christiansen, Alex Rodriguez, Miguel charged with assault with intent to murder. Given the political nature of the protest and the persons involved as demonstrators, the case/cause became known as the “Houston 12.” JUDGE JEFFERSON granted the motion to quash the indictments because chicanos had been excluded from the 177th district court grand jury that indicted the five men; additionally, chicanos had been substantially underrepresented for ten years on grand juries impanelled by the judge of the 177th district court, Miron Love. Judge Jefferson *Haile has experienced Houston justice before. As a result of a July, 1970, shoot-out between the Houston police and People’s Party II, Carl Hampton was murdered and Bartee Haile hospitalized and indicted for assault with intent to murder a police officer. After a highly political trial in which the goals of people’s Party II, as testified to by Mickey Leland, became a major issue, the jury hung 7-5 for acquittal and the charge was dismissed. did not decide this other issue presented by the defense: whether the indictments should be quashed because of the ten-year period of virtual exclusion of chicanos from all grand juries in Harris County. Such a ruling would have clouded the validity of all indictments returned by Houston grand juries from 1964 to 1973. Jefferson’s action was not a radical step but rather an example of what the legal system is supposed to be all about: a judge listens to the facts, informs himself of the law and rules accordingly. Unfortunately trial judges, with some federal exceptions, are rarely inclined to take such a stand. Defense lawyers are told, “That’s a close question; I’ll overrule your motion and you can take it up on appeal.” The judge was not applauded for his action. Harris County D. A. Carol Vance was quick to attack. “I do not think the other ten judges are going to follow this ruling,” he said. “I just do not believe our ten district judges have tried to systematically exclude any group that is eligible for grand jury service, be it on the basis of race or occupation or whatever .. . Now unfortunately the state has no right of appeal.” Vance didn’t seem to be aware of the key issuea defendant’s right to have a fair cross-section of the community on the body that considers whether to indict him. Stu Stewart, the assistant district attorney prosecuting the case, added, “It’s not fair because there is no one to grade the judge’s paper.” The prosecutor’s ultimate response was to take the cases before another grand jury two days after the original indictments were quashed. The prosecutor picked a grand jury that had one chicano on it. The other two grand juries presently impanelled have no chicanos. One hundred years ago, the Supreme Court reversed a conviction because blacks had been excluded from the grand jury. As a result of the civil rights movement during the Sixties, there were several successful challenges to grand and petit juries where blacks were substantially under-represented. It is historically significant that in the Houston 12 case another oppressed minority has benefited from these precedents hammered out of black people’s struggles. THE TEXAS grand jury system consists of three to five grand jury commissioners selected by the district judge impanelling a grand jury. These commissioners in turn select from 15 to 20 persons who are summoned to appear before the judge, who then selects 12 of them to serve on the grand jury. Since the judge may choose anyone he wantssubject to general qualifications such as being an eligible voter and not being a felonand since the commissioners have unfettered discretion in their selection of potential grand jurors, it is easy to see how wealthy,. Well-educated angles select each other for grand jury service. Even if all selectors act in good faith, it is nearly impossible for the grand juries to represent a cross-section of the community, especially in a ‘ community as diverse as Harris County. Legally, the defendant in a jury challenge has a dual burden: first, to show a substantial statistical variance between the percent of a cognizable class eligible for grand jury duty and the percent who actually serve; and second, to show that there is an opportunity to discriminate. That is, that there are not rules and procedures set up to guarantee a fair selection process. When the defendant has proved these exist, he has demonstrated a prima facie case. The burden then shifts to the prosecution to explain away the discrimination. Of course, if the defendant can show total exclusion he has proved an unrebuttable prima facie case. The Texas system provides complete opportunity to discriminate since all the decisions are subjective. The defendants were able to show total exclusion on their grand jury and substantial underrepresentation on Judge Love’s prior grand juries. Some observers think that because of the subjective decision-making process t he Texas system is unconstitutional and can never provide a fair cross-section of the community. Until the enactment of. the Federal Jury,. Service and Selection Act of 1968, similar “key-man” system was used t select federal grand jurors. Since the key-man system was discarded, federte grand jurors have been selected randon from voter registration lists. If the lists shown to he under-representative of.bIti chicanos, women, young peopl e