Investigation raises questions about whether grand jury system in Harris County favors police

The scene was dramatic: An armed man confronts a police officer during a carjacking. The robber suddenly points his pistol at the officer, who shoots the suspect.

Such portrayals of police shootings are displayed on a firearms training simulator as part of orientation that new grand jurors receive from the Harris County District Attorney’s Office. Grand jurors, whose duties include reviewing police shootings, play the role of police officer in the simulations by using a modified gun to shoot a beam at the screen.

The use of the shooting simulator, which was not widely known until a Houston Chronicle investigation, has prompted questions among defense attorneys and civil rights activists about whether it could prejudice grand juries. Harris County grand juries have cleared HPD officers in shootings 288 consecutive times.

The Chronicle investigation also found that most judges in Harris County use a system to empanel grand juries that is discarded by nearly all other states because it can result in grand juries that are not diverse.

In addition, the person who oversaw the review of police shootings for the DA’s office during most of the years covered by the Chronicle’s investigation — Clint Greenwood — was a licensed peace officer. Greenwood served for nearly two decades as a reserve officer with the Harris County Precinct 4 Constable’s Office, and after leaving the DA’s office in January, he was hired as a major at the Harris County Sheriff’s Office.

He also has had a successful practice as a private attorney defending police officers in lawsuits over shootings. Greenwood said his experience as an officer helped him see both sides of a police shooting case.

The DA’s office, which began using the simulator in 2003, contends it helps grand jurors understand pressures of police work and the split-second decisions officers must make. Harris County District Attorney Devon Anderson said the simulations educate jurors about situations when self-defense claims are legitimate — not just for police officers but for all residents.

“It’s made very clear at the orientation that self-defense applies to citizens as well as police officers, so it applies to both types of cases,” Anderson said. “This wasn’t a primer on police shootings, it was a primer on self-defense in Texas.”

Terri Burke, director of the American Civil Liberties Union in Texas, said grand juries should serve as a check on abusive police practices.

“This seems to be a brainwashing that all but guarantees immunity for the cops,” Burke said about the simulator. “It really seems outrageous and holds the potential of tainting the jury.”

The reality that police have been nearly immune from criminal charges in shootings concerns the most senior Harris County criminal judge, who noted that grand juries indict a much higher number of defendants in other types of cases.

“The big void on indictments of police officers is certainly alarming, and I just hope each grand jury had decided those cases based on the facts independently of what the district attorney wants them to do,” said 209th District Judge Mike McSpadden.

The newspaper’s investigation showed that more than a quarter of the 121 civilians Houston Police Department officers have shot in the last five years were unarmed.

The last time a Harris County grand jury charged an HPD officer in a shooting was in 2004. Since then, only three other officers from other departments have been charged in shootings in Harris County.

Rare in other cities

Charges in police shootings also are rare in other large cities. In Dallas, only one police officer was indicted from 2008 to 2012, after grand juries reviewed 81 shootings involving 175 officers. The most recent Chicago police officer to be charged in an on-duty shooting was in 2007.

Ray Hunt, president of the Houston Police Officers’ Union, said grand jurors empathize with police officers who face life-and-death situations, even if the suspect who is shot does not display a weapon. The low number of indictments against HPD officers, Hunt believes, is because they are well-trained and act only when there is some threat of deadly force.

“I don’t think a grand jury is likely to indict someone if they put themselves in that officer’s shoes and they say, ‘You know what, I probably would have done the same thing,’ ” Hunt said.

Harris County prosecutor Julian Ramirez addresses the media during a press conference to demonstrate the police shooting simulator new grand jurors use during orientations. Photo by Mayra Beltran

Empathy for police

Grand jurors empathizing with police officers is at the heart of questions raised about the shooting simulator.

Julian Ramirez, who is head of the DA’s civil rights unit, said the training simulator uses scenarios including school shootings, a domestic violence call, the scene of a sexual assault and traffic stops. Ramirez said the simulator gives grand jurors a better understanding of the “police officer’s experience when he goes on some of these calls.”

The DA’s office began inviting the news media and defense attorneys to use the simulator after the Chronicle began asking about the practice. The device’s use was not previously known by some local defense attorneys.

“Damn, I’ve never heard of that,” said Danny Easterling, who has spent 32 years as a defense attorney and is a past president of the Harris County Criminal Lawyers Association. “That does raise concerns … the neutrality of it could be questioned. It seems to be a bias towards the police.”

Harris County criminal district judges David Mendoza, Jan Krocker and Katherine Cabaniss said they also were not aware of the simulator’s use.

“I’m surprised. I’ve never heard of that occurring or that procedure,” said Mendoza, judge for the 178th court.

Susan Brown, the administrative judge for felony courts in Harris County, would not say if the orientations with the simulator were proper.

“That’s something the district attorney’s office has,” Brown said. “We’re not involved in that.”

Roy Grant, a retired Houston pipefitter who served on a grand jury panel earlier this year, said he took part in the training simulator during his orientation. The 73-year-old said the use of the simulator contributes to grand juries clearing so many officers in civilian shootings.

“I don’t think that needs to be shown,” said Grant, who added he was the only black member of the grand jury. “I think it persuades a grand juror which way to vote when a police officer is involved.”

That’s not the view of Tom Kennedy, a retired journalist who edits the Houston Police Officers’ Union publication and served as foreman of a grand jury. Kennedy, who is a grand jury commissioner for Judge McSpadden, said he abstained on the only police shooting case brought before the grand jury.

Kennedy considers the shooting simulation for grand jurors as “extremely beneficial.”

“It gives you an idea and an educated experience of what a law enforcement officer goes through, and the split second he or she needs to make sometimes a life or death decision,” Kennedy said. “At no time do they say this is the conclusive, do-all, end-all training that will put you in the shoes of a police officer.”

Ramirez, head of the DA’s civil rights unit, said grand juror orientations are not limited to the sessions with the simulator or presentations from prosecutors. A member of the Harris County Criminal Lawyers Association provides a session on state law. And this year, prosecutors have added a Power Point presentation explaining the law that governs the use of deadly force and self-defense.

Of Texas’ five largest counties outside of Harris, only one employs a shooting simulator during grand jury orientations. Prosecutors in Bexar County send grand jurors to the San Antonio Police Department training academy to use the simulator, while the district attorneys in Dallas, Tarrant, El Paso and Travis counties said they do not use such a device.

Two ways to choose

In Texas, state law allows two choices for seating grand juries: random selection as in jury trials and a system using commissioners.

The latter approach allows a district judge to appoint between three and five commissioners, who in turn select qualified people in the community to serve on the grand jury. After a criminal background check, the potential jurors are brought back to the judge empaneling the grand jury. That judge questions the jurors and selects 12 with two alternates.

Those picked are likely to be people the commissioners know, work with or are recommended by others. Two Harris County district judges acknowledged the commissioner system tends to produce grand juries that are not diverse and are mostly elderly, since retirees are likely to have time to attend the twice-a-week sessions for three months.

“Generally, what you get is the elite members of the community, someone who knows someone,” said veteran 208th District Judge Denise Collins, who three years ago began selecting grand jurors from those chosen at random to serve on trial juries.

That was the same reason Judge Krocker, with the 184th court, switched to a random system.

“It’s difficult to find commissioners who know people who have enough time to serve, and will they have enough diversity?” the judge said. “I found it’s easier to satisfy those requirements in a jury pool.”

University of Houston assistant professor of criminal justice Larry Karson conducted a 2004 study that found more than half of the 129 grand jury commissioners selected in Harris County in a two-year span had close ties to the legal system. They included judges, attorneys, court employees, bail bond agents, probation officers and law enforcement officers.

Civil rights activist Johnny Mata, with the Greater Houston Coalition for Justice, said little has changed since Karson’s study.

“That is a selection process that is antiquated and needs to be abolished,” Mata said. “It’s stacked, because the selection is done for a judge by a commissioner, and he or she select peers, people of their way of thinking. It’s an unfair practice, it’s subjective, encourages bias in the selection process.”

In Harris County, 12 of 21 criminal district courts use the commissioner approach to empanel a grand jury, while another seven courts employ the random system. One of the remaining courts uses a combination of random jurors and people who volunteer on their own to serve on grand juries. One court relies exclusively on those who volunteer or already have served on grand juries.

The commissioner system remains in use only in California and Texas, said Paula Hannaford-Agor, director of the Center for Jury Studies at the nonprofit National Center for State Courts. The commissioner system is in use in Travis, Dallas, Tarrant and Collin counties, although courts in Bexar and El Paso counties have switched to the random system, officials there confirmed.

Although the U.S. Supreme Court upheld the use of the commissioner method in Texas, justices warned in a 1977 opinion that it is susceptible to abuse.

In California, the commissioner approach is no longer used in the largest counties because of the difficulty seating diverse panels, said Michael Roddy, clerk of the San Diego County Superior Court. Although the use of grand juries in California is limited to high-profile cases, when a grand jury is needed its members are drawn from a regular jury panel selected randomly, Roddy said.

Brown, administrative judge for felony courts, defended the commissioner method. “I think if you look, we have a good cross section of the community,” she said. “If you look at who has served on the grand jury there’s a big effort made to make sure everyone is represented.”

Judge McSpadden, who has been on the bench for 31 years, is also a supporter of using commissioners to search out qualified grand jurors. He said it was “wrong” for fellow judges to select grand jurors at random by drawing from those who report for regular jury duty.

“They’re going to wind up with some very chaotic grand jurors who would not be independent and would not be intelligent enough to follow some of these cases,” McSpadden said. “We’re not talking just about the police officer shootings, but we receive a lot of cases that are pretty complicated to follow and to investigate.”

Click a picture for larger view and for cutlines

Justice, not prejudice

From January 2009 to mid-January of this year Clint Greenwood led the unit of the DA’s office responsible for investigating officers and presenting the cases to grand juries. Greenwood has been a licensed law enforcement officer for more than 20 years.

Greenwood, who now supervises the internal affairs division of the Harris County Sheriff’s Office, acknowledges he’s heard accusations that as a prosecutor he was biased in favor of police.

What do grand juries do? In Texas, grand juries screen criminal charges before the case can proceed to trial. A dozen grand jurors, who are usually volunteers from the community, meet with prosecutors behind closed doors to make sure there is enough evidence to file a formal charge — an indictment. When suspects have already been arrested and charged, grand juries overwhelmingly choose to indict, and the case moves to a court docket for trial. Grand juries, which are allowed to do independent secret investigations, are sometimes also asked to review allegations to determine if there is enough evidence for a criminal charge such as in police shootings. When prosecutors ask a grand jury to decide if a person should be indicted, it is generally because reasonable minds could differ on whether a crime was committed and the prosecutor wants to gauge community sentiment.

“I pretty much consider people with that position buffoons,” he said. “I absolutely know how things work, and I don’t miss anything, on a scene (of a shooting), or presenting a case, or defending a case. I’ve seen both sides. I know what to look for no matter what I’m doing.”

Asked if his long tenure as a licensed officer might give the impression of favoring law enforcement, Greenwood replied: “People can slant the appearance one way or another — my mission as an assistant district attorney was to see that justice was done, that the law was applied fairly to anyone and everyone.”

During his tenure at the DA’s office, Greenwood’s unit prosecuted police officers for excessive force, extortion, sexual assault and other offenses, and he led the prosecution of a Bellaire police sergeant who shot an unarmed motorist.

Greenwood’s twin roles raised ethical questions for associate professor Clete Snell, who chaired the criminal justice department at the University of Houston-Downtown from 2008 to 2012. He said Greenwood’s extensive police experience arguably could be helpful with the DA’s review of police shootings.

“It’s an ethical dilemma to be sure,” Snell said. “Even if he is completely impartial, the appearance of it might make many people question the integrity of the decisions when somebody is holding two different positions like that, being a police officer and a prosecutor.”

He added: “I would be concerned about the integrity of the investigations if I was a family member of a victim of a police shooting.”

Remaining neutral

Ramirez said prosecutors take a neutral position in all police shooting investigations. They do not tell grand jurors whether they believe laws were broken.

In some police shooting cases, the only facts grand jurors consider are those provided by the internal affairs departments of agencies whose officers took part in the shootings as well as the investigation by his unit, said Ramirez. In other cases, the grand jury may subpoena witnesses.

“We want the grand jury to make its independent judgment on the facts, and come to its own conclusion,” Ramirez said. “We’ll give them the benefit of the entire investigation. We’ll tell them what the law is, and we’ll leave the room and let them make a decision. The agenda that we have is simply to fairly and objectively present all the evidence.”

james.pinkerton@chron.com

INTERACTIVES

Click on a location in our interactive map or search our interactive database below to find out details about a shooting involving an HPD officer. You can search general information in the drop-downs below or enter a name of a specific officer or civilian.

Sorry, but your browser does not support frames.