Secret grand juries in Texas meant to ensure fairness
On Oct. 2, the Kentucky attorney general released several hours of audio recordings that contain the evidence presented to the grand jury in the Breonna Taylor case, which resulted in charges against one of the officers on three counts of wanton endangerment.
Those recordings contained at least one interview of an officer who participated in the execution of the warrant. They contained all the evidence presented in the Taylor case. As is the practice in Kentucky, neither the recommendations of the prosecutor nor the actual deliberations by the grand jury were recorded. That process is governed by the Kentucky Rules of Criminal Procedure.
In Texas, prosecutors are governed by Chapter 20 of the Texas Code of Criminal Procedure. This chapter sets out that grand jury proceedings are to be secret. It mandates that witnesses who testify before a grand jury cannot disclose their testimony outside the grand jury. It lists criminal penalties for anyone who violates the rules of secrecy.
Another part of this chapter provides for the recording of certain testimony. It states that questions propounded to an accused or suspected person before a grand jury and the testimony of such a person must be recorded. A strict reading of Chapter 20 is that the entire process must remain secret absent a court order to the contrary.
If it seems strange or counterintuitive that this part of the criminal justice system be clandestine in this climate of transparency, consider the reasons for such secrecy. If a person is accused of a crime for which there does not exist probable cause to indict that individual, it would be unfair to publish his or her name and subject that person to public scorn, or the potential of a loss of reputation or livelihood. Likewise, a witness may be reluctant to provide grand jury testimony about an unsavory character or group of people without the protection of secrecy for fear of retaliation.
In the case of Taylor, audio recordings were released to the public. However, they were released under court order. As is the case in most district attorney’s offices throughout Texas, a large percentage of the felony cases presented to a grand jury are done so without any testimony or an invitation for a presentation by the accused or his attorney. Rarer still is the situation where a target of an investigation or an accused is subpoenaed to appear before a grand jury. In cases where testimony is given, there will be a resulting court reporter’s transcript or recording. For the vast majority of the cases brought before a grand jury, there is no testimony or transcript.
In Bexar County, when prosecutors present a case to a grand jury in which an officer has fired his weapon and someone has been injured or killed, it is typically done without live testimony or witnesses. The normal practice is that a law enforcement agency investigates the shooting and files it in our office for review. Our special crimes division then presents the case to me and other top administrators, and then ultimately, every case is presented to a grand jury under our administration.
Because these cases typically do not involve an issue of whether the officer fired his weapon, but whether that action amounted to a crime under the law, these cases have been presented without any live testimony.
This practice has resulted in the erroneous assumption by some that transcripts exist when they do not. This misperception should be corrected given the serious nature of these cases. Our office continues to work toward best practices in every aspect of prosecution, including the work we do with Bexar County grand juries. We have already made changes in how we review these cases, but we are continually identifying best practices, and we are currently investigating whether it is time for a change that is fair to all parties involved.