Pale Justice

Although Texas law requires that state grand juries reflect the racial makeup of the communities they represent, three of the five currently impaneled Harris County grand juries include no African-Americans and only one Hispanic.

How did that happen? Well, you'd best ask the first-term Republican judges responsible for appointing the panels.

In a county that is roughly half minority, the disparity between the ethnic makeup of those grand juries and the general population is generating criticism from blacks and Hispanics and uneasiness among judges and law officers, who fear that cases against lawbreakers could be compromised by challenges to the validity of indictments issued by the panels.

"You always create the possibility of the issue being raised on appeal by the grand jury not being made up of a cross section of the community," says Doug Shaver, the administrative judge for the county's criminal district courts, who made sure his own currently impaneled grand jury had minority members by having state Representative Senfronia Thompson, an African-American, help pick its members.

"That's the real danger of it," adds Shaver, who had unsuccessfully urged the new judges to come up with racially representative panels. "And it's just fair that everyone is represented."

A district judge who asked not to be identified expressed disgust that the three had allowed the process to produce panels that are "blatantly unrepresentative of our community."

Houston City Councilman Jew Don Boney, who's agitated for two decades against the unequal treatment of blacks in the court system, calls the phenomenon of all-white grand juries in the 1990s "unconscionable and inexcusable." He blames the Harris County judiciary, and warns, "This is something that's on their watch, and in their lap, and they need to address it, and address it now."

District Attorney Johnny Holmes denies the grand jury process here systematically excludes minorities, but he concedes that a black defendant could argue the point before an appeals court. Holmes' office keeps no statistics on the racial composition of county grand juries, and says he has not intervened in the selection process to urge judges to pick minorities.

As the first African-American state district judge here in the 1970s, Andrew Jefferson threw out indictments returned by an all-white grand jury. Now a practicing defense attorney, Jefferson says the racial makeup of the three grand juries could indeed jeopardize the validity of prosecutions based on the indictments they returned.

The three judges whose grand juries have no black members are Mary Lou Keel of the 232nd District Court, a former county prosecutor; Jim Wallace of the 263rd Court; and Werner Voigt of the 248th. All were swept into office by the 1994 Republican tide that flushed most Democratic minority jurists out of office.

Voight's panel includes the one Hispanic, Edelmira Navarro Holland, who is the foreman. Two other grand juries assembled by Shaver, a Democrat, and Jim Barr, a Republican, have a half-dozen or so minority members. Holmes argues that an appeals court would likely measure racial balance by the number of minorities in the entire 60 grand-juror roster this term. Even by that standard, the group falls far short of matching the ethnic component of the county population.

Under the current system of selecting grand juries, half the district court criminal judges are responsible on a rotating basis for impaneling grand juries for each six-month term. The judge of each court appoints four or five grand jury commissioners, who then produce lists of candidates to be grand jurors. From that pool, a 12-member grand jury is selected, which meets several times a week during its term to hear presentations of cases from prosecutors. The jurors then vote on whether to indict or no-bill defendants. Nine votes are necessary to obtain an indictment.

The three judges who failed to put blacks on their grand juries have differing attitudes on the necessity of having minority panelists. Asked whether it is important to have minority grand jurors, Keel paused before answering: "I think the important thing is to have qualified people to make the time commitment required E. I don't think the racial makeup of the grand jury is real important. I would have liked to have had a more diverse group, but it didn't work out that way."

Wallace says his minority contacts just didn't come through for him. "I called the minority people who were friends of mine and said, 'Can you help me out?'" he says. "Frankly, that just never fell into place. The day all the people showed up, they were all white, unfortunately. Personally, I don't perceive it as a problem."

But Wallace allows that he can "understand where minorities would consider it a possible problem. I certainly think if I was, say, an Oriental or something of that nature, a black or whatever, I would have a suspicion that it's not quite as kosher as it could be were there minorities on the grand jury."

Voigt says he had counted on an African-American called as a grand juror, Lenwood Johnson of the Allen Parkway Village Tenants Council, but Johnson did not answer his summons to the grand jury.

"It's very difficult generally to get people to serve on grand juries," laments Voigt. "We had at least one [minority] cited to appear, and that person did not appear. What can I do? I just can do the best I can, and that's all."

Former judge Jefferson points out that it's a relatively simple matter for judges to ensure that they have minority grand jurors. All they have to do, he stresses, is appoint a racially diverse group of commissioners.

"The judge handpicks his commissioners, and in handpicking his commissioners he picks a black person, a Hispanic person, woman or two," says Jefferson. "The key is to get the people as commissioners and they in turn select people who reflect them. And that's the way it's done. I've been a commissioner three times. We know what we're supposed to do and go about the business of doing it."

Carroll Robinson, the president of the Houston Lawyers Association, suggests that the lack of minorities in the judiciary is one big factor behind the return of the all-white grand jury.

Judges bring the experiences in the community and contacts and relationships they have developed, explains Robinson. "When there is lack of diversity, there is lack of that kind of background where you can reach out to a broad and diverse community."

Robinson suggests that the lack of minorities on the panels indicates some judges are not even conscious of the lack of diversity in their courtroom operations. If the judges' fields of friends, contacts and social circle are limited, argues Robinson, "it's natural they would have difficulty finding Hispanics, Asians, African-Americans."

Robinson, who is counsel to the Texas Democratic Party, also contends that the grand juries are a reflection of the party affiliation of the judges in question.

"The Republican Party is clearly of a notion that justice is now partisan," he says. According to Robinson, the GOP's attitude is: " 'Since we control the benches, we control the county, we're going to do it our way.' Anybody else's view has to hit the highway."

Wallace, for one, admits that his limited contacts with minorities is part of the problem. "I know this sounds hokey," says the judge, "and doesn't apply to somebody who runs in a different circle, but unfortunately in our society it's true, you know: white people know white people, black people know black people, Orientals know Orientals."

As far as finding people with the associations to produce qualified minority jurors, Wallace acknowledges, "I certainly suffer from not knowing enough of those people yet." But Wallace promises to do better. "Certainly, next time I'll be more certain it's going to happen. I regret it didn't this time, because I do understand how someone might perceive it's not fair representation, because they do bring something to the table that your suburban white would not think of."

Shaver says the new judges may suffer from limited minority contacts, but he figures they'll develop them with time.

"They may not have a lot of black associates or friends they have met," says the judge. "But after you've been here a while, you do start meeting more and more and becoming associated with a lot of people."

In any case, Shaver wants to make certain that the all-Caucasian grand jury does not return as a staple of Harris County justice. "It behooves the courts not to create an issue that doesn't need to be there," he says. "It's something we ought to take great care not to happen again.

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