In late July, District Judge Albert McCaig and Waller County District Attorney Elton Mathis announced they would follow Texas's new selection rules to pick the grand jury that would likely decide whether to file criminal charges against Brian Encinia, the state trooper who arrested Sandra Bland.
Through a state bill that officially went into effect on September 1, the new rules were made to put an end to Texas's often criticized grand jury selection process, known as "pick-a-pal," and require a judge to select jurors from a pool that represents "a fair cross section" of the county. In the "pick-a-pal" process, a judge would appoint a "commissioner" to select potential jurors, which left the door open for conflicts of interest and often resulted in grand juries that misrepresented their communities' demographic makeup. Texas was the only state to allow such a process (a second available option, which still exists, is random selection).
Given the obvious racial implications of the Sandra Bland case, it only makes sense that the grand jury would be chosen in a way that ensures the panel is as racially diverse and open-minded as possible. But McCaig, who serves Waller County's 506th District, was not happy with the new selection process, according to letters and emails recently obtained by the Houston Press.
On July 27, McCaig sent a letter to the bill's sponsor, Sen. John Whitmire (D-Houston), claiming the bill placed an "unconscionable burden" on district judges. "The Texas Legislature has essentially established a law whereby a district judge can literally hand-pick members of a grand jury to fit his or her opinion of what is suitable," McCaig wrote. "Such a situation places each of us district judges in a position of being accused of subjective manipulation of the grand jury process. That is so far from the probably intended consequences of the bill." He ended the letter by writing that the bill should be "repealed or greatly amended."
Despite McCaig's clear discomfort with the bill, the Houston Chronicle reported the next day that McCaig and Mathis had decided to follow the new rules when selecting the grand jury, which could hear Sandra Bland's case next month. Bland was arrested during a traffic stop in July and found dead in her cell at Waller County Jail three days later. Her death was ruled a suicide and has resulted in multiple ongoing investigations by local, state and federal law enforcement agencies, and set off international outrage over treatment of mentally ill inmates and poor relations between police and minorities.
McCaig claimed in the letter that the new bill required him to select a grand jury based on "seemingly subjective standards of race, ethnicity, sex and age." In his letter, McCaig had a number of questions about the specifics of the bill, including "What is the difference between race and ethnicity?" and "Does the word 'consider' mean 'must consider' or 'may consider' or some other subjective standard?"
Sen. Whitmire replied four days later, informing McCaig that many of his questions referred to a portion of the proposed bill that was not even included in the final version when it passed the Senate, and that answers to his other questions could be found by simply reading through the bill.
But McCaig was still very confused, and wrote a second letter to Whitmire on August 21:
"Thank you for your letter. As you noted, part of my quotations came from SB-135 rather than HB-2150. However, that minor point does not alleviate the concerns that I have regarding the bill as a whole. I will concede that there may be courts in Texas that have abused the grand jury process in the past. I am not one of them. Given that the current mood in Austin is to change the process, I continue to have concerns about the present law and I continue to urge a revision of the law.[...] The law may get rid of the potential for cronyism, but it certainly allows judges to type-cast a grand jury to stack the deck in favor of a certain type of individual. I don't intend to do that, and I hope most judges will not."
It's not completely clear what McCaig means by "a certain type of individual." Aside from McCaig's preoccupation with race and ethnicity in his initial letter to Whitmire, the judge has a history of being less than tolerant of other races, religions and sexual orientations. It's unclear if McCaig is merely upset the law could place more minorities on grand juries, but in a speech McCaig gave at a Tea Party rally in 2010, now posted on his personal website, McCaig said this:
Living a life based on principles is not easy in this society that tells us that tolerance is a good thing, even if that tolerance requires that we subjugate ourselves to beliefs and practices that we find intolerant. What we tolerated yesterday, we accept today, and will embrace tomorrow.
A strong family is one man and one woman making up a marriage. That’s what founded this country. This country was not founded on Adam and Elvis or Alice and Eve, but on the makeup of a strong traditional family. Our laws should promote the first principle of the family.
The primary enemy that we face is the progressive liberal ideas that refuse to believe that we are at war with radical Islam; that bows to the leaders of radical Islam; that favors a mosque in a special place in America; that hosts Muslim events in the White House but never darkens the door of a Christian church. That is the enemy. Illegal immigration is the enemy, but it is not the primary enemy. The primary enemy is the progressive liberal ideas that promote illegal immigration; that sues our citizens; takes down our flag in favor of the Mexican flag; and that forces us to “dial one” for English. That is the enemy.
In a response to McCaig's second letter, Whitmire again dismissed McCaig's criticism of the new law. "The use of commissioners in the former 'key man' or, 'pick-a-pal' system,"— the system you used— disenfranchised entire segments of the population," Whitmire wrote. He ended the letter with an off-hand reference to the Sandra Bland case, assuring McCaig that he, along with local and national media, "will be watching with great interest the future grand juries empaneled in Waller County."
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McCaig replied to Whitmire with a terse email on Tuesday night:
"I see you still don't get it. I don't object to a change in the law. I object to how it was changed. You left far too much individual discretion with the judges. And, by the way, I have not met one judge who approves of the new method. Finally, if the good Senator wants to threaten me with oversight in Waller and Grimes counties he is more than welcome to attend my grand jury formation days. In fact I will be glad to send invitations if he would like to attend. Otherwise, I will stand by my comments. This was not a well throughout [sic] law."
You can see their entire exchange, which stretched through several months, here: