There is an interesting story out of Texas in the Perry controversy that raises the difference between grand juries and petit juries. One of the grand jurors, Rho Chalmers, who indicted Governor Rick Perry turned out to be a delegate to the Texas Democratic Party convention who not only actively participated in the convention during her service but actually took a picture with a Democratic state representative who appeared as a witness before her jury.
The rules on conflicts are more relaxed for grand jurors due to the larger number of members and the fact that their decisions are only to indict rather than to convict. However, Chalmers’ political work during the pendency of the case raises question of whether a recusal or at least a notice should be required of members. I am not saying that she acted out of political animus. I am perfectly willing to accept her insistence that it was “not a political decision” for her to vote to indict. Yet, the appearance could not be worse in such a case and the question is whether the issue was raised with the special prosecutor, San Antonio lawyer Michael McCrum.
News reports state that Chalmers attended the Democratic convention and commented on its proceedings while the grand jury proceedings were occurring. She was also photographed with Democratic state Sen. Kirk Watson, a witness. It is not known if she discussed the matter with him.
The grand jury was selected in April, 2014 and did not conclude until last week. Yet, on June 27, 2014, Chalmers shared a photo of the Watson event on a community Facebook page stating, “Senator Kirk Watson telling the story of the Wendy Davis fillibuster (sic).”
Numerous posts from both of Chalmers’ Facebook pages — her personal page, which she shares with her husband, Davis, and her “Developer’s Dungeon” page — make clear that she is a partisan Democratic activist, and that she was an active participant in the Texas Democratic Party’s state convention in June while grand jury proceedings were ongoing. Her postings revealed a strong Democratic following and activism for both her and her husband, including her participating in the Rules Committee. She states “The Rules Committee was challenging but fun. A little over half a day to resolve everything but we ‘got er done’!” she wrote. She then liked and shared that post using her personal Facebook page, where she noted that she was “pleasantly surprised that I wasn’t completely lost on this committee.”
The grand jury rules are, in my view, woefully ambiguous on how to handle conflicts and, while personal relationships are addressed, the rules do not deal with these type of conflicts:
Art. 19.08. QUALIFICATIONS. No person shall be selected or
serve as a grand juror who does not possess the following
1. The person must be a citizen of the state, and of the
county in which the person is to serve, and be qualified under the
Constitution and laws to vote in said county, provided that the
person’s failure to register to vote shall not be held to disqualify
the person in this instance;
2. The person must be of sound mind and good moral character;
3. The person must be able to read and write;
4. The person must not have been convicted of misdemeanor
theft or a felony;
5. The person must not be under indictment or other legal
accusation for misdemeanor theft or a felony;
6. The person must not be related within the third degree of
consanguinity or second degree of affinity, as determined under
Chapter 573, Government Code, to any person selected to serve or
serving on the same grand jury;
7. The person must not have served as grand juror or jury
commissioner in the year before the date on which the term of court
for which the person has been selected as grand juror begins;
8. The person must not be a complainant in any matter to be
heard by the grand jury during the term of court for which the
person has been selected as a grand juror.
Once again, I am not casting aspersions on Chalmers who did nothing that I can see that violates these rules. However, it is a serious appearance problem in having a grand juror who interacts with a witness and actively working for the opposing party to a political figure during her service. I believe that the rules should expressly require notice to the judge and prosecutor of such contacts or activities and that grand jurors have a running obligation to raise potential conflicts of interest for possible recusal from a case of this kind. People have been voicing arguments on both sides of this controversy. I have criticized the indictment, including in a column out today. Others on this blog believe that indictment is well founded. Yet, such controversies over grand jury service are not good for either side and distract from the merits of the case.