Mimesis Law
29 March 2017

Wild Card: Waco Cop Pegged For Grand Jury Foreman In Waco Biker Case

July 14, 2015 (Mimesis Law) — The McClennan County, Texas Criminal­ Justice System was back in the spotlight this week when it was revealed that a long time Waco Police Department detective was selected as foreman of a Grand Jury that may be tasked with investigating the notorious “Twin Peaks Shootout.”

During the shootout, nine motorcycle “gang members” were shot and killed and eighteen more were wounded.  In a feat of combat skills not seen since an early 1980s episode of The A Team, none of the police officers involved in the shootout were injured.  For good measure, the police arrested 177 additional biker gang members after the incident.

The idea of a police officer from an agency that participated in such a shootout presiding over a grand jury that could potentially hand down 177 counts of Capital Murder (times 9) smacks of the fox guarding the henhouse on its own.  Given the scrutiny that the Texas Grand Jury System has gone through over the past year, that decision becomes tragically ironic.

For decades, Texas has employed the “Key Man” (AKA “Pick-a-Pal”) system of  selecting Grand Jurors.  Under this system, a judge personally selects and appoints Grand Jury commissioners, who then select the potential grand jurors.  This year, following a series of Pulitzer Prize winning articles by Houston Chronicle reporter Lisa Falkenberg on the abuses of that system on a Capital Murder case, the Texas Legislature changed the way Texas Grand Jurors are selected.  The change will require judges to pull Grand Jurors from a randomly selected panel, like they would for regular jury service.

The irony is that although the new law does not go into effect until September 1st of this year, the McClennan County judges had already abandoned the Key Man system and were using the randomly selected Grand Juror pool method.  That random selection method just so happened to have called upon Detective James Head to appear for “Grand Jury Duty.”  Given the fact that Detective Head was qualified to be a police officer, he had no problem meeting the minimal qualifications to be a Grand Juror.  19th District Court Judge Ralph Strother’s decision to appoint Detective Head as foreman, however, was giving the middle finger the icing on the cake.

It has been said of Grand Juries (in Texas and elsewhere) that they would indict a ham sandwich.  That tired old joke has been uttered many times to illustrate either the corruption or one-sidedness of the grand jury system.  The reality is that, in most instances, grand juries are given a very simplified version of events in the cases they rule on.  A prosecutor has a captive audience with a grand jury and defense attorneys are not permitted to participate.  Probable cause is such a relatively low standard of proof that the vast majority of cases are indicted without question.  Quite frankly, if a ham sandwich were to be No Billed by a grand jury, one might want to see if the ham sandwich bought off a couple of the grand jurors.

Both prosecutors and judges preferred the Key Man System – not because it fostered corruption, but because it fostered convenience.  The Key Man System led to many, many repeat grand jurors who were willing and eager to serve.  Judges want repeat grand jurors because it makes it easier to find an individual willing to donate three to six months of his or her life to being on a grand jury.  Prosecutors want repeat grand jurors because it keeps them from having to re-orient new participants to how things work.

In larger jurisdictions, a prosecutor may present up to eighty cases a day to a Grand Jury.  Many times, the probable cause given by the prosecutor to the grand jurors goes something like this:

“Officer Johnson was on routine patrol when he saw the Defendant participate in what appeared to be a hand-to-hand drug transaction.  Officer Johnson then witnessed the Defendant walking in the street where a sidewalk was provided, and arrested him on this Class C misdemeanor offense.  A search of the Defendant subsequent to the arrest found crack cocaine in the Defendant’s pocket.  It field tested positive for cocaine.”

Those explanations of the case have to be brief or it would be impossible to keep up with the quantity of cases needing indictment on any given day.  A grand juror who bucks the system and starts asking a lot of questions can cause an absolute train wreck to the schedule.  A prosecutor needs the grand jurors to develop a type of Stockholm Syndrome to get them all nodding along as the simple cases remain simple.

Otherwise, the system just would not work, right?

It is all fun and games until we get to the complicated cases, though.  Those cases that require witness testimony and a bit of critical thinking slow down the pace.  These types of cases make the background of the individual grand jurors very, very important.  A victim of sexual assault should not hear sexual assault cases anymore than a person who has a relative accused of sexual assault.  The evidence needed for an indictment is minimal enough as it is.  If a police officer is needed on the grand jury to help push a case over just that minimal hurdle, perhaps that isn’t a case that needs to be indicted.

Which brings us to Detective Head.

Detective Head is a 26-year-veteran of the Waco Police Department.  Obviously, he cares about the criminal justice system.  Obviously, he cares about the Waco Police Department.  He should show that he truly cares by acknowledging that there is absolutely no possibility he could serve as a neutral and unbiased grand juror on any of the 177 potential Capital Murder cases coming out of the Twin Peaks shootout.

A simple “I couldn’t be fair” would suffice to recuse him.  More disturbing is the fact that a veteran judge such as Judge Strother would allow Head to serve.  Judge Strother, even more so than Detective Head, would be aware of the fact that the Twin Peaks cases were coming to a Grand Jury in the next Grand Jury Term.

The idea of having a police officer serve on a case where nine people were killed, eighteen people were wounded, and one hundred seventy seven people were arrested all by the police should never be ruled upon by a member of the police.  There is no way this situation should have arisen, and there is no question that it cannot happen.

4 Comments on this post.

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  • Elizabeth Hammer
    14 July 2015 at 11:19 am - Reply

    I’ve got days and days of grand jury questions…

    At the end, you say that having Detective Head on the grand jury “cannot happen.” Do you mean “it cannot happen” in a fair universe, or “it cannot happen” because it’s not legal and the bikers’ attorneys can try to do something about it later?

    What would happen to a grand juror who caused a schedule train wreck? Does the prosecutor have the power to kick them off or somehow exclude them?

    Or can the prosecutor just lie to a curious juror to speed things along? Is lying allowed, either legally or because there are no consequences?

    Lastly, since you didn’t suggest it, would I be right to assume that Judge Strother can’t simply take the detective off the biker case when it comes up? During a term, once a grand juror, always a grand juror?

  • Scott Jacobs
    14 July 2015 at 11:59 am - Reply

    While it does give an appearance of impropriety to the proceedings, the odds that the Grand Jury wouldn’t indict them all anyways (even if the cop wasn’t on the Grand Jury, let alone not the foreperson) are high.

    This is, after all, a Grand Jury. If the people looked up from their newspapers I would be shocked.

  • Darlene Kramer
    14 July 2015 at 4:08 pm - Reply

    Since this detective was an active participant in the “arrest” of the bikers, how can he, if it turns out that he does, legally serve on that Grand Jury? There is proof that he did. It’s all over the internet.

    I don’t get the folks in Waco. I don’t understand why they haven’t reined that DA, who no one likes anyway, and the crooked judges in. This fiasco has spread all around the globe, for crying out loud. Is it that the feds dumped this on you guys? Fine…Admit it, and let us go on our way.

    But for the love of God, quit making utter fools of yourselves, and leave us alone!

  • Marc Reiner
    6 August 2015 at 9:25 am - Reply

    Are there any detectives in waco without direct work-related knowledge of these crimes? Even if there are, no active officer should decide any judicial issues regarding a defendant of his agency.

    The flip side is it’s just a grand jury and only the petit jury matters, but that begs the question of having one at all. If you do have a GJ, then at least pretend it’s objective. For the people.