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
qualifications:
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.
Source: Chronicle and AL and media trackers
Larry,
Washington got rid of grand juries in its state constitution under Article 1 section 26 (but provides a provision for Superior Court Judges to summon, a rarely used method mostly for public corruption cases). Having to deal with grand juries is a cumbersome endeavor and I am glad we did not have to deal with them here.
I agree they are often just rubber stamps for the prosecutor but “no bills” occasionally happen. But since in this case the prosecutor was the subject of a controversy with the governor, transparency would have been better if a special prosecutor had been arranged for.
Ethics and Jurisprudence protocols call for complete disclosure of “conflict of interest and/or the appearance of conflict of interest”. There is no way this active delegate, rules committee member wandered through her life and never received that information. All she had to do was disclose. Period. And leave the rest to the DA and lawyers. The only reason people don’t disclose is the desire to have their finger on the scale of justice…even that little bit of power appeals to activists by nature. This is not a Dem problem or a GOP problem, its a human nature problem. Our style of governance relies upon an educated and “good faith” operating public with principles aligned with our “innocent until proven guilty” judicial system. We’ve lost that in appearance and in fact.
Actually, since she broke no rules by Prof. Turley’s own admission, nothing was flawed. Any Grand Jury is skewed to whatever the prosecutor wants. He/she controls what evidence is or is not presented and can set the jury up to indict or not indict, depending on their wish. That is the concern with the grand jury in the Ferguson shooting. If you don’t like this, then get rid of grand juries.
Bailers, We don’t know who was in the potential jury pool or why this group was chosen and sworn in by the judge.
swm
“He will be a little tarnished but no more so than Chris Christie or Scot Walker.” Ahhhh, the Republican triumvirate or should we call it a hat trick?
This will probably help Perry’s presidential campaign. He is generating lots of publicity in his victim role. Before this, he was just a not very intelligent governor of a state that puts corporations before people and has no respect for the constitutional rights of the innocent.
Bailers
Don’t disagree with you. Could you pass that message on to the Supreme Court Justices?
And this indictment was not politically influenced. It is becoming less credible as things progress.
SW,
Criticizing me for saying the grand jury system is flawed while at the same time saying the court system is corrupt. Bravo.
Grand juries are supposed to be impartial, without the taint of potential conflicts that would render a decision compromised. I guess I’m just old fashioned that way though.
Bailers, Just part of the meme that Perry is innocent, and this a a partisan witch hunt. Like I said before Perry’s appointees to the courts in Texas will let him off and he will be on his merry way to the presidential campaign trail. He will be a little tarnished but no more so than Chris Christie or Scot Walker.
AY,
Ethics is about appearance as much as actual harm.
Tell me something interesting….. It’s a republican that provided the information to indict…. It’s a republican that’s going to hear the case….. Now, if you are saying this woman has powers beyond one vote to indict…. Then show me…. Take her vote away…. Were there still enough to indict?
You are familiar with the harmless error standard…
swarthmoremom
If you’ve read any of my columns lately on how Texas’ flawed grand jury system is overrun with monolithic bodies of mostly white elite retirees, so-called pillars of the community who travel in certain circles and have strong ties to law enforcement, then Tyus might be a breath of fresh air.” Okay, so voting in a presidential primary makes one an activist.”
——————
No, but attending the state convention for a party does.
Having monolithic blocks of white men isn’t necessarily a good thing, but the prosecutor should have screened for outwardly partisan participants to ensure fairness.
Switch the circumstances and Perry was not indicted. Then we found out a jury member was a Republican convention participant during the grand jury. Wouldn’t that be viewed as suspicious?
I remember being criticized for saying the grand jury system in Texas was severely flawed, and an indictment is hardly shows rousing support for the prosecutor’s case.
Ahem.
Oh, well, soon Perry will get this dismissed and hopefully head out on the campaign trail. Kirk Watson is great by the way. I follow him on twitter. He lives in Hyde Park and nearly everybody in Austin loves him. He was redistricted into a not as friendly district as was Lloyd Doggett but they thankfully they both survived.
I voted in the republican primary in 2012. A tea partyer was running against a relatively moderate republican for my state rep. I guess according to your standard I am a republican activist.
http://www.houstonchronicle.com/news/columnists/falkenberg/article/No-pick-a-pal-grand-jury-for-Perry-5699072.php “She’s a secretary at a state university. She’s originally from Illinois. She’s nearly 48. She’s black. She voted in the 2008 Democratic primary. Oh, and it appears her maiden name is Outlaw.
Della M. Tyus, the forewoman of the Travis County grand jury who signed with her curvy script the document that indicted Gov. Rick Perry last week, isn’t your typical Texas grand juror.
But is that good news for justice or another reason to be suspicious of the Perry indictment?
If you’ve read any of my columns lately on how Texas’ flawed grand jury system is overrun with monolithic bodies of mostly white elite retirees, so-called pillars of the community who travel in certain circles and have strong ties to law enforcement, then Tyus might be a breath of fresh air.” Okay, so voting in a presidential primary makes one an activist.
“I have criticized the indictment, including in a column out today. Others on this blog believe that indictment is well founded. Yet, such conflicts are not good for either side and distract from the merits of the case.” – JT
That is a bit ambiguous.
Do you mean that those who disagree with you “such conflicts” are not good for the blog?
Or that conflicts of interest on a grand jury “distract from the case?”
I do agree that a grand jury should be as impartial as possible.
One more data point that our justice system is not necessarily just.
Surprise, surprise.