other way, the five were jailed for contempt of court. They could purge themselves of contempt by agreeing to testify or by waiting out the jury’s term, a period which could have lasted eighteen months. Five months later the term of this particular jury ran out, and the witnesses were released from jail, only to be confronted with a subpoena to appear before another grand jury to be asked the same questions. Seeing the futility of further resistance, two gave testimony under a grant of immunity. Their inquisitors sought information of an intimate social nature: friends, acquaintances, activities, movements, meetings, beliefs, motivations, thoughts, and so on. Answers were integrated with information received from other sources \(such as puter. The printout produced a “sociogram,” the intelligence officer’s counterpart of the personal diary. Daniel Ellsberg, Anthony Russo, the Berrigans, and Leslie Bacon, among hundreds of others, had their diaries read in just such a fashion during the Nixon years. Fortunately, the investigatory role of grand juries in the Texas courts has been comparatively slight. The jury’s principal function is the indictment of those a district attorney wants to prosecute. However, Texas grand juries are singularly inappropriate institutions for such a business, since they are generally composed of that class of the citizenry whose zeal for law and order is usually the equal of the prosecutor’s. Some “shield.” Blacks, chicanos, women, the poor, and the young are systematically underrepresented on most Texas grand juries. Although the legal standards for grand jury composition are the same as those for petit juriesthat they be representative of a given communitymost Texas judges take `grand” to mean “elite.” Although not mentioned in the Code of Criminal Procedure, the most important qualification for grand juror status is, apparently, a good dues record at one’s country club. Hidalgo County is not unique, certainly by South Texas standards, in its approach to grand jury selection. A study made in connection with a political trial held after the Pharr riot in 1971 showed that in the ten previous years less than 40 percent of those chosen for grand jury service were MexicanAmericansthis in a county where chicanos comprised almost 80 percent of the population. The only really surprising feature turned up by the study was that the judge who administered the selection system was himself of Mexican descent. Racial imbalance An explanation for such an imbalance might be found in a sub-study of the social statuses of the group of jurors in question. Using occupation and education as determinants of social and economic status, two Texas A & I University professors found that 95.8 percent of those chosen for grand jury service were members of either the upper class or upper-middle class of Hidalgo County. The remaining 4.2 percent were lowermiddle class, and absolutely none were from the lower class, a group that included better than half of the county population. Over the last ten years, women were underrepresented on grand juries by approximately 30 percent. The composition of trial juries differs markedly from that of grand juries. While petit jurors are chosen at random from a jury wheel loaded with the names of all registered voters in a county, grand jurors are selected through one big crony system. The district judge first names three to five persons as jury commissioners; they in turn select sixteen to twenty friends or associates for a grand jury pool. Although the use of registration lists as the exclusive source of potential jurors tends in its own way to underrepresent the disadvantaged, it is nevertheless a vast improvement over reliance on the subjective wisdom of jury commissioners. State Rep. Craig Washington \(DLegislature which, if adopted, would bring about significant improvements in. jury composition. H. B. 119, awaiting action by the House criminal jurisprudence committee, would require that grand jurors be selected in the same random fashion as trial jurors. H. B. 184 increases the pool of potential jurors by adding to the voter rolls the names of licensed drivers, county taxpayers, utility company customers, and welfare recipients. Civil libertarians and welfare rights activists might have some qualms about this last proposed source of new jurors, but the objective of establishing a comprehensive list of potential jurors, both trial and grand, is certainly to be encouraged. A related matter: Texas certainly does not need a super-grand jury with statewide purview, as has been proposed by Atty. Gen. John Hill. The potential for abuse of such an instrument by subsequent attorneys general would give pause even to a John Mitchell. While such a jury might be a useful tool for breaking up an indictment logjam in a county under the thumb of a political machine, many observers fear that it could just as easily be used to harass and quell dissident political groups, such as the Raza Unida Party in Zavala County, or maybe even Democrats in Midland County. First “them,” then “us”a mega-jury orchestrated by a megaprosecutor is too much power in too few hands. Abolish grand juries Why not just abolish grand juries altogether? Since the federal grand jury is enshrined in the Fifth Amendment, the dangers of tampering with the Bill of Rights far outweigh the benefits to be achieved by elimination. On the other hand, the Texas Constitution, which suffers approximately ten amendments a year, is not nearly so sacred. Since 1971, Texans charged with non-capital felonies have been permitted to waive the right to be accused by indictment, thus permitting the prosecutor to proceed solely on the basis of information filed in district court. If the right to an examining trial before a competent magistrate were truly guaranteed, the grand jury might be abolished without noticeable loss to the body politic, as the British discovered in 1933. An examining trial gives the magistrate an opportunity to test the sufficiency of a criminal accusation and to determine whether adequate cause exists for a defendant’s being bound over for trial. Such a procedure might also have the collateral effect of enhancing the presumption of innocence, since the stigma of an indictment returned by a previous jury would not obtain at the trial’s outset. The most negative aspect of abolition, from the defendant’s point of view, probably would be the elimination of a fertile source of reversible errorthe accused citizen could no longer complain of discrimination in the selection of the grand jury. 0 tive director of Texas . Legal Aid, Inc., in Weslaco. February 25, 1977 25 The prosecutor played cat and mouse with Roy Mandujano, who was untutored in the process, unrepresented by counsel, and intimidated by the grim faces of 23 jurors. The Mandujanos of the world-and that’s most of us-don’t stand a chance against this system.
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