Feb. 20, 2015 – In the wake of controversial police-involved deaths of unarmed suspects coupled with questions about the grand jury system, the University of Houston Law Center last week held a symposium examining policing issues with viewpoints representing a broad spectrum of the legal community.
The Feb. 13 CLE program, titled “Grand Juries, Policing, and Civil Rights,” brought together law professors, prosecutors, defense attorneys, a major metropolitan police chief, and others to take a hard look at the issues raised by incidents in Ferguson, Mo., New York City, and other locales across the country.
The first presentation, “Understanding the Grand Jury Process,” was given by Belinda Hill, a former Harris County criminal district judge who now serves as the county’s first assistant district attorney.
Hill addressed the recent controversy, highlighted in a series of local media reports, over Harris County judges’ use of a “key man” or commissioner system in selecting grand juries. Many refer to the selection process derisively as a “pick a pal” system. Hill said it is one of two ways that judges can seat grand juries, the other being through the regular jury pool.
While the “key man” system historically has been the one most used in Harris County, “quite a few” judges are using the jury pool system now, Hill said. Under Texas law, the selection by judges of commissioners, who then select other grand jurors, must be done in a manner representing to the fullest extent possible the demographic makeup of the community.
Before any grand jury is empaneled, its composition or even a particular member can be challenged by any person, although the accepted reasons for challenge are limited under state law, she said.
Hill also addressed the tradition of secrecy of grand jury proceedings, saying it is meant not only to protect and encourage the cooperation of witnesses and the integrity of the investigation, but also to protect a possibly innocent target of the investigation from public stigma.
All officer-involved shootings are independently investigated by the Harris County District Attorney’s Office and are presented to the most demographically diverse grand jury available, Hill said. The prosecutors present the evidence to the grand jury, but do not make any recommendation as to whether an indictment should be handed up, she said.
The second presenter was Chuck Joyner, a former FBI special agent and employee of the CIA. He is now CEO of Survival Sciences LLC, which advises police departments on use-of-force techniques as well as provides expert testimony on behalf of police in court proceedings.
Joyner said research shows that 90 percent of on-duty deaths of law enforcement personnel in the U.S. occurred because the officer hesitated in properly using legally authorized force. And that, he said, is because officers fear repercussions such as litigation or firing.
After recounting in detail what he called “the worst day in FBI history” – a 1986 shootout in Florida in which several FBI agents were killed or wounded – Joyner said that unlike portrayals in films or television, suspects “don’t just drop dead” when hit by gunfire, but often survive to continue shooting. That’s why police are trained to shoot at the center mass of a suspect.
“Officers don’t shoot to kill. They shoot to stop a threat,” he said.
Likewise, he said, officers never enter any situation believing the other person is unarmed, since “there’s always at least one weapon, and they brought it” – meaning that the other person potentially could grab the officer’s weapon.
And unlike the general public, Joyner said, police officers cannot simply avoid an encounter with someone they believe is breaking the law. They are duty-bound to try to apprehend that person.
Joyner said individual police officers do not decide on their own the degree or type of force used. Rather, he said, that decision is contingent upon the level of resistance put up by the other person.
Joyner described different use-of-force models used by police, and related them to applicable Supreme Court decisions.
In a presentation titled “Civil Rights – Perception v. Reality,” Anthony Haughton, an adjunct professor at the Thurgood Marshall School of Law at Texas Southern University and associate director of the Center for Criminal Justice in the school’s Earl Carl Institute, discussed many of the racial and socioeconomic disparities in the criminal justice system.
Haughton said studies have shown that minorities, particularly blacks, are incarcerated at much higher rates and for longer sentences than whites, even for nonviolent crimes such as drug possession.
The expenditure of state funding in places like Texas indicates a preference for incarceration over providing opportunities for higher education, Haughton said.
Racial discrimination also has been shown to play a major role in who is tried for capital crimes, as well as in the demographic makeup of death penalty juries, he said.
Houston Police Chief Charles McClelland said the nation’s fifth-largest police force has undergone a demographic sea change in the past few decades, in line with the city’s own changing population. Fifty-eight percent of HPD’s officers are from minority groups, and 18 percent are women, he said.
McClelland acknowledged that the public is concerned about issues involving police officers’ use of force and racial profiling. But, he added, the public – including those from minority groups – are also concerned about receiving sufficient protection from crime.
McCelland endorsed the “community policing” model – instituted in Houston by his predecessor (and later mayor), Lee P. Brown – which emphasizes having officers interact with the public, particularly in minority areas, in a more informal manner during routine patrols.
“Community policing is a philosophy, not a program,” he said.
McClelland said he believes that officers wearing a “body camera” will be beneficial for transparency, and that HPD plans to have all first-responder officers equipped with the cameras within the next year and a half.
But McClelland cautioned that body cams are not a “panacea” and may not result in the outcomes that many in the community want. That’s because, as he reminded the lawyers in the audience, people can look at the same evidence or set of facts and reach different conclusions.
McClelland drew a distinction between “racial profiling” by officers, which is illegal and unconstitutional, and “criminal profiling,” which he said is legal. The key is to train officers to look for conduct that indicates criminal behavior, not factors like race.
“You won’t ever hear me say ‘thin blue line,’” McClelland said. “We are the thick blue fabric that holds the community together.”
In a final panel discussion called "Moving Forward - Procedures, Ethics, & Civil Rights,” moderated by UHLC Dean Leonard M. Baynes, several participants discussed a wide range of issues.
UHLC Professor Sandra Guerra Thompson, director of the school’s Criminal Justice Institute, a former prosecutor in New York, and a prolific scholar of criminal justice issues, advocated more transparency in the way judges choose members of grand juries.
Alex Brunin, the head of Harris County’s new public defender’s office, said he and his colleagues have gained a lot of cooperation from the county’s prosecutors, and are allowed to speak, albeit briefly, during grand jury orientations. But, he said, the grand jury largely remains “a tool” of the prosecution.
Joyner, of Survival Sciences, said recent events have made it clear that police departments across the country must reach out to minority communities, and do so in a “respectful” manner.
Cassandra Jeu, an adjunct professor and supervisor of the UHLC-based Texas Innocence Network, said there needs to be ongoing examination of the racial disparities and socioeconomic factors involved in the meting out of the death penalty.
In closing remarks, Thompson said members of the legal community can do more to address injustices and systemic biases they see in the criminal justice system.
“If we’re docile, we don’t have standing to complain,” she said. “I would encourage us to speak out.”