This commentary was originally featured in The Houston Chronicle on July 12, 2017
Many bills did not make it across the finish line in the regular legislative session, but two criminal justice proposals in particular bear watching to make sure they resurface in 2019. Senate Bill 1424 and its nearly identical counterpart House Bill 2640 would have brought much-needed reforms to the grand jury system, a body shrouded in mystery that provides little protection for the accused.
Among other things, SB 1424 and HB 2640 required the government to introduce evidence that would tend to negate the guilt of the accused, to allow counsel in the grand jury room for the accused and for witnesses (while disallowing them to speak to the grand jury themselves), and to require a transcript of the proceedings while allowing the government to protect the identities of witnesses and victims. Other states have been practicing similar reforms for decades with no negative consequences.
Where lawmakers may have been hesitant on this important grand jury reform initiative, voters are not. A recent poll conducted by Baselice & Associates shows that 88 percent of registered voters in Texas believe a prosecutor should not have the ability to withhold evidence that would tend to demonstrate the innocence of an accused person in a grand jury proceeding. Texans from all walks of life and political persuasions strongly support common-sense grand jury reform.
As conservatives, we demand accountable and transparent government. Ensuring the state does not infringe upon our rights as citizens is critical. These demands are particularly paramount when we talk about our criminal justice system. Individuals accused of crimes deserve information that would tend to demonstrate their innocence to be presented to those who will decide their fate. That is not merely opinion; it is what Texas law and the Supreme Court require.
However, in Texas, this requirement to present exculpatory evidence does not cross over to grand jury proceedings. Unlike in trials, there is no obligation that a prosecutor present evidence to the grand jury that would tend to negate the guilt of the accused. The grand jury system can trace its origins back to 12th century England. Then, the grand jury was used as a means to prosecute and to punish those who were deemed to be an enemy of the Crown. Throughout the years, it slowly transformed into a check on overzealous government, routinely pushing back on the Crown during the American Revolution as the monarchy attempted to prosecute noncompliance with oppressive taxes with no representation.
When forming its own government, Texas believed the proceeding was critical enough to include it in its Constitution. In time, however, Texas has slowly turned a process that was originally intended as a check by the people on the government, into a process completely driven by the state. This can have dire consequences.
Take the Harris County case of Ericka Dockery. Dockery, a mother of three working two jobs, testified during a grand jury proceeding in 2003 that her then-boyfriend was asleep on the couch at her house when prosecutors believed he was casing venues to rob. She also said she had received a phone call from her house from her boyfriend while prosecutors believed he was at a different apartment complex with other suspects after a robbery and a murder.
The prosecutor didn't believe her. With no counsel at her side (as is the case with all witnesses during a grand jury proceeding under current law), she was repeatedly threatened with losing custody of her children and with charges of perjury. After hours on the stand, Dockery, out of fear for her freedom and for her children's well-being, recanted her testimony. She eventually was charged with aggravated perjury and spent 120 days in jail.
Her boyfriend was convicted of murder and sent to death row. Seven years later, phone records found in a detective's garage backed her initial testimony. Dockery's boyfriend's convictions were recently overturned based upon this evidence, and he is now a free man.
The bills this year in the House and in the Senate would have helped ensure what happened to Dockery and her then boyfriend doesn't happen again in Texas. Although they did not end up on the governor's desk, variations of the original bills did pass through committees in the Senate and in the House. Lawmakers need to act on this momentum and to pass comprehensive grand jury reform soon.