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. So 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.