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.”