About Abigail Anastasio

Abigail E. Anastasio is a criminal defense attorney handling both State and Federal cases.  She is passionate about defending her clients' rights and truly loves being an advocate and voice for the accused.  To contact Abigail, please visit her website at www.TXCriminalTrialAttorney.com.

The Debasement of the Grand Jury: Waco, Texas – Exhibit A

The concept and application of the grand jury has devolved and what was once a tool of the people is now a tool of the prosecution… what was once used by the citizens in now used upon the citizens.

Last week, a discussion of the debacle that is ongoing in the Waco, Texas Twin Peaks biker cases led to a conversation about the perversion of the grand jury system. What is going on in McLennan County is the perfect example of how the grand jury has shifted from serving as a safeguard from oppression to an anachronism of the law.

The very first sentence of the 5th Amendment concerns the right of a citizen accused to a presentation of their case to a grand jury: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury….”

Grand Jury: A jury of inquiry who are summoned and returned by the sheriff to each session of the criminal courts, and whose duty is to receive complaints and accusations in criminal cases, hear the evidence adduced on the part of the state, and find bills of indictment in cases where they are satisfied a trial ought to be had.

This was called a “grand jury” because it comprised a greater number of jurors than the ordinary trial jury or “petit jury.” At common law, a grand jury consisted of not less than 12 nor more than 23 men… If the grand jury determines that probable cause does not exist, it returns a “no bill.”

It is an accusatory body and does not include a determination of guilt.

All grand jury proceedings are ex parte The only people allowed in the room are the jurors, prosecutors for the state, witnesses, court reporter, and interpreters if needed. After the prosecutor presents a case, if the grand jury thinks the accusation has enough probable cause to go to trial, they return a “true bill” or indictment in the case. If they think the prosecution should not move forward for lack of probable cause or that they do not have enough evidence at the time of presentation, they return a “no bill” and do not indict the case. The decision does not have to be unanimous but requires at least 9 members to render a true bill.

Historically, the grand jury was meant to be a buffer between citizens and the government in criminal proceedings. The people who founded our country were considered to be outlaws. The very reason they came to America and separated from Britain was to escape persecution and rampant unwarranted searches and seizures by the crown. The grand jury was included in our Constitution to serve as an “ independent bulwark” between the people and overzealous prosecution. The grand jury is now popularly (and ironically) referred to as “the rubber stamp of the prosecutor.”

A grand jury wields great power. Now, in addition to being powerful, it has become dangerous. The grand jury is often used in an attempt to accumulate evidence rather than to dispute evidence. Prosecutors can issue a secret grand jury subpoena for whatever information and testimony they want without a grand jury actually requesting that information or testimony. It is often used as a prosecutorial investigatory tool. The idea of using a grand jury to build cases against citizens rather than to dispute accusations is contrary to the Bill of Rights’ intent.

The intent of the grand jury system was such that a grand jury would return a no bill in some cases despite its belief that probable cause exists, essentially saying that it would be immoral or wrong (or simply a waste of time and resources) to prosecute a particular case. The grand jurors do not simply “follow the law.” They decide whether or not a case should be prosecuted in the first place. It was not meant to be an oversimplified finding at the direction of the prosecutor as to whether or not probable cause exists. If a charge seems unworthy of prosecution, it should be no billed even if the alleged act or omission is contrary to the laws of the land.

However, that is not where we find ourselves today. One of the most recent examples of the devolution and decreasing independence of the grand jury concerns the indictments handed down in the Twin Peaks biker cases out of Waco, Texas. A McLennan County grand jury took just 9 hours to indict 106 people. The citizens accused are all charged with first degree felonies and facing 15 years to life in prison. Yet simple math tells us that if the grand jurors worked the entire time, without any breaks whatsoever, each defendant’s case received a mere 5 minutes consideration. No individualized facts or circumstances could have been taken into account. What about witness testimony, review of pertinent evidence, or questions posed by the grand jurors? What about that fact that out of 106 cases presented, all 106 resulted in indictments? It is absurd.

The public has become immune to the grand jury just churning out indictments as if felony charges should be a dime a dozen. The Twin Peaks cases have enough related discovery that all defense attorneys are required to provide the prosecution with a hard drive capable of storing at least a terabyte of data. And yet somehow, only 9 hours were required to indict 106 people facing serious life changing criminal charges. This shows how the grand jury is now simply an appendage of the District Attorney’s Office and law enforcement instead of the wall the prosecution must climb over using solid evidence as a leg up.

What happened in Waco is one of many examples of how the power of the grand jury has shifted from the hands of the citizens into the hands of those in a position inherently biased against those accused. The grand jury hands down indictments in almost every case based simply on hearsay coming from state’s attorneys whose principal role is to advocate for their elected District Attorney’s objectives. Unless it’s a case the presenting prosecutor wouldn’t eventually want to try to a petit jury, a true bill is almost guaranteed.

What is the solution? How do we take back this precious right and utilize it as it was intended to be? How many times do we hear the public cry out that the justice system is broken, that we criminalize too many things, that our prisons are overpopulated? Take back our grand juries. Serve. Once there, question things, use common sense, don’t just act as an extension of the prosecution. Hand down no bills. Just because something can be prosecuted does not mean that it should be.

More information on how to serve as a grand juror in Harris County