Joseph Gutheinz, Jr., spoke at the Houston Property Rights Association luncheon on October 2 about reforming the grand jury system in Harris County. Mr. Gutheinz is a trial attorney and retired government special agent who assists other law firms, individuals and businesses as an attorney and consultant.

He said the concept of a grand jury is a time honored tradition in the criminal justice system. It can be traced to 12th century England. In an effort to gain more control over his territory and jurisdiction, King Henry II devised a way to have more crimes reported and investigated for the royal courts. Each county, or shire, established a body of prominent men to report to the king on all crimes committed since the last court session. The king would then take action and issue a sentence, which was usually death no matter how serious the crime. From this emerged the present day grand jury system that presents indictments and conducts investigations.

Mr. Gutheinz said that much of the grand jury system we have come to appreciate in the U.S. is now gone around the world. “A lot of people have a misunderstanding about what our grand jury system is in the U.S.,” he said, “and what its purpose is. One function is to find probable cause to believe a person has committed a crime and to indict that person if it is found that a crime was committed. Another purpose is investigative. Some states, however, have grand juries that only investigate but do not indict.”

He said that a lot of people think that with the creation of the 5th amendment a grand jury is guaranteed for all “infamous crimes” or felonies. “The bottom line is you have a right to a grand jury for all infamous crimes, but the problem is that right was in the Bill of Rights. When our country was first created the Bill of Rights was not applicable to the states. It wasn’t until after the Civil War that the Bill of Rights was applied to all the states with the passage of the 14th amendment’s due process clause. However, that had never been obligated before, so some states have a grand jury and others deal with it in another fashion.” Thus the differences in how states use a grand jury, if at all.

The State of Texas has had a grand jury system since the formation of the Republic. The State code says that “the grand jury shall inquire into all offenses liable to indictment” and that it must be done in secret. “That’s what makes it a better system than a preliminary hearing,” Gutheinz says, “where everything is in public. The way to think about a grand jury is that of the sword and shield. They go after the criminals, but also protect them.”

In Harris County there are five grand juries. State law says that it only needs nine of the12 jurors for a quorum. “Most think that felony juries must be unanimous, but it only takes nine votes to indict. An indictment is a stigma the rest of the person’s life even if they are found innocent later. The prosecutor reads a list of the charges and if there are no witnesses called or the accused does not testify, the charges are for the most part accepted without discussion. So we can possibly have just nine individuals making a decision on indicting someone with very little information about the alleged crime.”

Mr. Gutheinz’s chief complaint about the Harris County grand juries is the way jurors are selected. Individuals can volunteer to serve on grand juries or grand jurors can be selected by 3 commissioners appointed by the judge. “Judges are partisan because they are elected. When they get in office they get to pick what system they want to choose grand jurors. Volunteers or appointees may be friends or campaign workers, or anyone who for one reason or another wants to serve on the grand jury. The problem with this is that the grand juries do not look like the rest of the community. They are not representative and this is unfair to the accused.”

He believes the only way to have a diverse and representative grand jury is to select jurors at random from voter registration and drivers license files the way standard jurors are selected to serve. The grand jury needs to at least give the perception to the community, Gutheinz says, that it is a fair and representative process in the criminal justice system.