Equality by lot

At present Texas vests authority for prosecuting cases of official misconduct in the district attorney of one county, now Travis County, which contains the capital city of Austin, and until recently, the additional work was funded by an appropriation by the State Legislature. This is done because the Texas Constitution vests authority for criminal prosecutions in local county and district attorneys. Neither the State Attorney General nor any state-level official has such authority.

Two controversial prosecutions by the Public Integrity Unit in predominantly Democratic Travis County were clearly political and have led to calls for reform. the first was prosecution of U.S. Rep. Tom Delay, essentially for laundering campaign contributions through the National Republic Party. He was convicted in Travis County but the verdict was reversed on appeal. However, it ended his career in the U.S. Congress.

The second case arose after the Travis County District Attorney was arrested, and later convicted, for DWI, and was video recorded acting very badly, trying to throw her weight around. Governor Rick Perry demanded she resign, or else he would veto the next appropriation for the Unit. She refused, and he did. But Travis County kept the Unit going at reduced strength using County funds. It then hired a special prosecutor who obtained an indictment against Perry for making a felonious threat to a public official in threatening to exercise his veto power. As this is being written, that case is still in the Travis County District Court.

Several reform proposals have been filed in the Texas Legislature, but the ones proposed thus far are prosecution-centric, attempts to assign the function to some DA somewhere, but not being able to find a neutral forum, or a neutral procedure to be used in that forum, while still being able to be effective in prosecuting or otherwise correcting at least the most egregious cases of official misconduct. Some of those proposals are listed at the end of this article.

An innovative approach

It is proposed to set up a system with statewide jurisdiction,  consisting of state grand juries, not under the control of any court, but able to command the resources of any agency in the state. The key elements of this proposal are as follows:

1. At least one, and as many as 150, state grand juries consisting of 23 randomly selected state citizens plus spares, shall be convened, depending on caseload, to serve terms of at least 180 days, according to the standards set forth at http://www.constitution.org/jury/gj/gj-standards.htm
   1. If only one state grand jury is convened, it is located either at random or in rotation among the 150 state representative districts, so that members could be randomly selected from a local area that would reduce the burden on them attending.
   2. If there is enough caseload to need at least 15 concurrent state grand juries, the number shall be 31, one for each state senatorial district.
   3. If there is enough caseload to need at least 75 concurrent state grand juries, the number shall be 150, one for each state representative district.
   4. If there is enough caseload to need more than 150 concurrent state grand juries, then more than one will be convened for each state representative district, as required.
   5. State grand juries are not appointed under the supervision of a court, except initially under the State Supreme Court, but by preceding state grand juries, and when located in districts, by the preceding state grand jury in the preceding district number by numeric order, with the last selecting the first.
   6. Each state grand jury shall be responsible for training members of its successor.
   7. If any state grand jury should fail to appoint its successor, the State Supreme Court shall step in to restart the process.
2. Any person with evidence or a complaint of official misconduct or maladministration, fraud, waste, crime, or of a neglected public need, or of violation of a right, involving any state, local, corporate, or even federal official, or private individual or organization, may present it to any of the state grand juries, subject only to orderly scheduling.
3. A grand jury may remain in session beyond 180 days, as long as necessary to complete any cases before it, but shall not be paid beyond 365 days without a legislative appropriation for doing so, and its successor shall go into session concurrently.
4. A state grand jury may, on its own authority, issue subpoenas for witnesses, writs of quo warranto or habeas corpus, appoint or hire investigators, if funding permits, and assign to any court the enforcement of them.
5. A state grand jury may decide court jurisdiction and submit indictments or presentments for any case it takes to any court it deems appropriate for prosecution, and appoint the prosecutor by delivering the indictment to anyone, not necessarily a regular county or district attorney, but who could be a prosecutor pro tempore, who would assume the role of the county or district attorney for the case.
6. Indictment of a public official by a state grand jury removes official immunity from that official, and it may, by presentment, remove sovereign immunity from a state agency for civil claims.
7. If no court is found to have jurisdiction, a state grand jury may direct other actions by state actors, such as to refuse cooperation or impede the offending behavior, and may recommend legislation, or recommend other relief.

Advantages:

1. Would open the process to complaints by any citizen with evidence.
2. Would take investigation supervision duties out of the hands of officials who might be biased or compromised.
3. Could take prosecution duties out of the hands of local officials who might be biased or compromised, while maintaining compliance with Texas Constitution.
4. Would enable trial in jurisdictions where it would be easier to find a jury of unbiased citizens.

Some current proposals:

• HB 1690, Phil King. Would have investigation by Texas Rangers, then refer  cases to prosecutors in the home county of defendant.
• SB 10, Joan Huffman. Would have investigation done by Texas Attorney General, then refer cases to prosecutors in the home county of defendant

Filed under: Juries, Proposals, Sortition | Tagged: courts, prosecution, Texas, Tom Delay |