Justice Watch: Murder Case Testing Grand Jury Selection Judges Found to Skirt Elaborate Process

Jan. 18, 2002
By Mary Flood
Houston Chronicle

A challenge to the murder indictment of a man accused of smothering an infant highlights a possibly illegal method of seating Harris County grand jurors that some judges are using.

Stanley Schneider filed a motion in December to dismiss the murder indictment against Charles Richard Forshee, 55, accused of smothering a 23-month-old infant in his foster care, because of the way the grand jury that indicted him was chosen.

State law, designed to keep grand jurors independent from both judges and prosecutors, requires judges to go through an elaborate and secretive process to impanel a grand jury with racial, age and gender diversity. By law, judges must appoint people to serve as commissioners. Those commissioners, from diverse parts of the county, gather behind a guarded door to nominate grand jurors. The commissioners produce a sealed list, given to a clerk sworn to keep it secret until 30 days before the potential grand jurors are summoned.

But frustrated by the task of finding enough people willing to put in the required time, some Harris County judges have glossed over the legal requirements. Some have gone so far as to get lists of prospective grand jurors from the district attorney's office itself, screen them themselves, and assume that the commissioners will approve their list.

"That violates the spirit and the letter of state statute," said Randy Schaffer, a prominent criminal defense lawyer. "It may be well intentioned. But for the district attorney's office to collect a bunch of names and for the judge to recommend them as grand jurors reeks."

Schneider's motion in the Forshee case alleges that state District Judge Joan Huffman improperly chose the three citizen commissioners who then chose the prospective grand jurors. He complains the three commissioners did not represent the required geographic diversity and included the judge's court coordinator.

"The grand jury is supposed to be a buffer. A fairly chosen grand jury might no-bill him. I think it's that close," Schneider said, noting that the chief witness against his client is a 3-year-old child. The lawyer said if he wins, which may be doubtful in a state dominated by a conservative Republican judiciary, it could affect hundreds of other cases.

But Huffman is not the only judge to appoint someone from her court or even the prosecutor's office to help pick grand jurors. The practice is common.

Another state district judge, Mike Wilkinson, who has a current grand jury, appointed his court process server, and a third judge, Debbie Mantooth Stricklin, picked a district attorney's office investigator to help pick her grand jurors.

Andy Tobias, the assistant Harris County district attorney who heads the grand jury division, said he collects names from grand jury bailiffs and grand jurors who know people willing to serve and provides it to judges who ask for it.

He said this is not to ensure jurors who favor the prosecution, but to aid in finding people who can spare several hours, two days a week for three months to be on a grand jury.

Tobias discounts the motion to knock out Forshee's murder indictment. He said case law requires that a true error in seating grand jurors must involve fraud or injury to the defendant. "In this case it's pure speculation that there was any harm or error," Tobias said.

He said that because the grand jury was presented with witness testimony in the Forshee case, that makes it even more likely the seated grand jury did the right thing.

Grand jurors, who sit for three months, may hear only a few minutes of information from a prosecutor before issuing an indictment. They regularly issue dozens of indictments each time they meet. It is less common for witnesses to appear before the grand juries as in the Forshee case.

Schneider argued in his Forshee motion, due to be heard next month, that although judges have some discretion, the higher courts have tested whether there was geographic diversity in a commissioner panel. Two-thirds of the commissioners who selected the Forshee grand jury were from Pasadena, which wouldn't pass the diversity test for Harris County, he argued. He also argued the judge's court coordinator was the judge's own representative.

Huffman wouldn't discuss the Forshee case but said it is practical for judges to appoint commissioners from the courthouse. She said her coordinator meets many people and gets calls from people willing to serve on grand juries.

"You almost have to know someone before you ask them to perform this task," Huffman said.

Stricklin, a former prosecutor who appointed a district attorney's investigator to help pick her sitting grand jury, said she'd rather have someone she trusts than someone she doesn't know.

State District Judge Bill Harmon acknowledged that he seeks out Tobias' list and takes suggestions from many people, including his own family. He said he calls the potential jurors to see if they can serve and submits a list to his chosen commissioners.

Allen Tanner, a lawyer who regularly practices before Harmon, said he has been a commissioner at least four times in Harmon's court and each time approved the judge's list.

"I think this way is less cumbersome and much more efficient," Harmon said. He said he doesn't force his chosen commissioners to follow his suggestions.

But the statute doesn't appear to allow the judges to suggest a list. It requires that the judge not even see the commissioners' sealed list before the clerk takes an oath to keep it secret.

Harmon is not the only judge to use the list from the district attorney's office.

A survey of criminal judges shows many of them follow most, but not all, of the law. But all seem frustrated by the difficulty of assembling a diverse panel.

For example, state District Judge Denise Collins once asked lawyers in her courtroom to challenge her grand jury pool because it was a largely Anglo panel.

Grand juries are often composed of older and retired people who have time to serve. There is also a club of people who serve year after year. Schaffer once served on a grand jury and said, at 39, he was probably the youngest in the room.

He also said because he was on the panel, it wound up with a reputation as being troublesome and question-prone. He found that prosecutors sent big cases on which they wanted to win indictments to other grand juries. But, Schaffer said, he was told by prosecutors that they purposefully brought his grand jury cases they did not want to take to trial and hoped would be no-billed.

Grand jury selection

How grand jurors are supposed to be selected

1. A judge picks three to five Harris County citizens from different parts of the county to be commissioners. These citizens will pick the grand jurors.

2. The commissioners are locked in a room secured by the sheriff. They are given the names of people unqualified to be grand jurors and the last county assessment roll.

3. The commissioners pick 20 or so people to represent a broad cross-section of the county by race, sex and age.

4. The commissioners seal the names in an envelope and all sign across the seal. The envelope is given to the clerk who takes an oath to not open it until 30 days before the potential grand jurors are to be summoned to the court.

What some judges do

1. A judge picks three to five citizens to be commissioners, sometimes from the same part of town, often picking their own court personnel or lawyers who practice regularly in the judge’s court.

2. The judge gets a list of people who want to be grand jurors from the prosecutors who present cases to the grand jury. The judge gives these names and others he or she has found willing to serve and gives it to the commissioners.

3. The commissioners approve the judge’s list with a few or no changes. Many people serve on grand juries year after year.

4. The letter, sometimes sealed and signed, sometimes not is given to the clerk.