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Texas grand juries Trial by money, power, race Weslaco The grand jury is an integral part of our constitutional heritage which was brought to this country with the common law. The Framers, most of them trained in the English law and traditions, accepted the grand jury as a basic guarantee of individual liberty; notwithstanding periodic criticism, much of which is superficial, overlooking relevant history, the grand jury continues to function as a barrier to reckless or unfounded charges. . . . Its historic office has been to provide a shield against arbitrary or oppressive action, by insuring that serious criminal accusations will be brought only upon the considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance. United States v. Mandujano, So says Chief Justice Burger. But what do you suppose Roy Mandujano, a San Antonio bartender, thinks of his “shield,” his “barrier”? One evening in 1973, while Mandujano was tending bar, a talkative stranger gave him $650 to score some dope. Mandujano split for about an hour, then came back and returned the stranger’s money, money that really belonged to the Drug Enforcement Administration. The narc, following instructions, tried to reach Mandujano by telephonelater that evening, but our tavernkeeper failed to return the calls. Legal railroad job Two months later Mandujano was before a federal grand jury. The prosecutor warned the subpoenaed witness that he was required to answer all questions, except those that would tend to incriminate him. Mandujano was also told that he had a right to consult an attorney \(if he that the lawyer stay outside the jury room. Mandujano had no money for a lawyer and the inquiry proceeded. In response to general questions, he denied knowing anything about narcotics trafficking in Bexar County. He was subsequently indicted for attempting to distribute heroin and for perjury. Although Mandujano’s case went to the U.S. Supreme Court where the Chief 24 The Texas Observer By David G. Hall Justice used it as a vehicle for further incursions on the Miranda Rule, his experience before the grand jury was, unfortunately, not atypical. One of the most effective, and deplorable, ploys of federal prosecutors is to subpoena a putative defendant before a grand jury for a little cheap discovery. Alone, intimidated by 23 grim faces, and unrepresented by counsel, the untutored Mandujano played cat and mouse with the federal prosecutor in the most unequal matchup since Texas quit playing football with Mary Hardin-Baylor. Even an experienced, wily defense lawyer would have been in constant jeopardy in such a situation. In a grand jury proceeding, each question posed by the prosecutor raises critical issues for the subpoenaed party, sophisticated or not: Do I invoke the Fifth Amendment privilege against self-incrimination? Would my answer to a potentially incriminating question be deemed a waiver of that privilege? Would my general answer to a general question be considered perjury under the law? The Roy Mandujanos of the worldand that’s most of usdon’t stand a chance. Our Anglo-Saxon forebears created the grand jury for commendable purposes. In 1161, sometime before the reign of John Mitchell and Robert Mardian, the English yeoman won the right not to be accused of serious crimes except upon indictment by a jury of 23 of his peers. The jury was “grand,” not be cause it was in any way elite, but because it was larger than the 12-member The secrecy of grand jury proceedings was rooted in a legitimate need. Closeddoor deliberations insulated the jury from the pressures of an otherwise omnipotent Crown. Today, the mantle of secrecy unnecessarily helps a prosecutor dominate the jury. Art of political snooping This bulwark against overzealous prosecutors has, in the course of 800 years, become only a Maginot Line. Perhaps the ultimate perversion of the grand jury’s protective role came during the Nixon administration. Even before Watergate, Robert Mardian was a notorious hardliner as director of the Internal Security Division of the Justice Department. With computers, advanced sociological research methods, and extensive use of illegal electronic surveillance, Mardian’s deputies transformed the art of political snooping into a science. And the grand jury became their special tool. Consider the 1970 investigation into the purchase of dynamite by a young Arizona woman with a radical profile. After she had been indicted by a Tucson jury, an Internal Security Division attorney subpoenaed five of her associates to pursue the following relevant line of inquiry: I want you to describe for the grand jury every occasion during the year 1970 when you have been in contact with, attended meetings which were conducted by, or attended by, or been any place when any individual spoke whom you knew to be associated with or affiliated with Students for a Democratic Society, the Weathermen, the Communist Party, or any other organization advocating revolutionary overthrow of the United States, describing for the grand jury when these incidents occurred, where they occurred, who was present, and what was said by all persons there, and what you did at the time that you were in these meetings, groups, associations, or conversations. Refusing to answer these questions or cooperate with the prosecutors in any