When Texas Gov. Rick Perry was indicted last month for allegedly overstepping his authority, the charges came from a type of grand jury that is not the norm in Austin’s criminal courts: one whose members were chosen at random.
Many Texas courts in larger cities rely on a so-called “key man” selection process, where judges choose a commissioner responsible for recruiting a panel of grand jurors. That method — one that is unusual nationally — was not chosen for Perry’s grand jury because the visiting judge overseeing the case comes from a part of the state where random selection is preferred.
But as the Perry case moves to trial, it is prompting questions about Texas’ quirky key man grand jury system — and whether it is time to ditch it entirely. Critics of the key man system suggest that using random selection in Perry’s case was a good defense against perceived or actual bias — and that it should be used in all Texas criminal cases.
“The difficulty is, where did the ‘key man’ come from?” asked Larry Karson, a criminal justice professor at the University of Houston-Downtown who in 2004 studied the key man system. “What is the relationship of the key man to the judge? And what is the relationship of the potential grand juror to the key man?”
Texas law allows judges in its 254 counties to decide for themselves whether to have grand jurors chosen at random or selected by a key man — a method frequently used by judges in Austin, Dallas and Houston.
Grand jury selection preference is often dictated by experience, and Perry’s was random because that is the method favored in San Antonio’s Bexar County, where Senior Judge Robert C. “Bert” Richardson, who is presiding over the case, resides.
Critics derisively call the key man system the “pick-a-pal” method, because judges select people they know to go find willing citizens to serve as grand jurors.
“I find the random system much easier,” said Judge Sid Harle, who oversees the 226th state district court in San Antonio. “With the random selection, I think you get a better demographic, people from across the county.”
But those who like the key man system say it speeds up the court process.
One such proponent is John B. Holmes Jr., who served as district attorney for Houston's Harris County for 21 years. He said it is tough enough to use the random selection process to seat a trial jury. It would be even harder to use that process to find people willing to sit for a grand jury, which generally meets a couple of times a week for three straight months.
“It fouls up your work, taking care of your kids,” Holmes said. “Getting the people who are willing to do it is a big thing.”
Mike Lynch retired in 2012 after serving 20 years as a judge in Austin’s Travis County. He said he always used the key man method because it is the one he was taught to use. “Done properly, you can get a good mix,” he said.
But he added that in Perry’s case, he would have switched gears and used random selection, because it is a way to eliminate the appearance of any bias.
While bias is critics’ biggest concern with the key man system, Holmes argued that putting someone who does not want to serve on a grand jury creates its own risk — that he or she may take out their resentment on the prosecutor.
“You're really going to get a reaction,” he said, adding that a prosecutor needs grand jurors to weigh the evidence, not plot ways to get back at them. “They’re already mad about having to serve.”