The term of the Blanco County grand jury hearing evidence about possible criminal wrongdoing at the Pedernales Electric Cooperative ended last week without any indictments being issued. Tom Kelley, spokesperson for Texas Attorney General Greg Abbott, said, “This is an ongoing investigation and we are aggressively pursuing the case.” Citing the secrecy of the grand jury process, Kelley declined to make any further comment.
The grand jury selection process is spelled out in the Texas Code of Criminal Procedure, and allows a district judge to either appoint a “jury commission” to prepare a list of qualified prospective grand jury members or summon a panel of 20 to 125 prospective grand jurors in the same manner as calling a panel of jurors for a civil court case.
In an interview Monday, 424th District Judge Dan Mills said he uses the jury commission method and appoints three people to serve as commissions to prepare a list of 25 to 40 names of individuals they believe qualified to serve on the next grand jury. Mills uses this process in all three counties he serves, Blanco, Llano and San Saba.
Judge Mills initially named Elaine Swiss, Randy Schulze and Joe Summy as jury commissioners for the upcoming grand jury selection process. Mills said he did not personally know Summy before appointing him. But after learning of Summy’s public writings and comments about PEC matters, Mills said he telephoned Summy and they decided it was not in the best interest of justice for him to serve as a commissioner at this time. Summy had not been sworn in, and removed himself as a potential commissioner.
Mills has selected another person to serve on the jury commission, but would not divulge the person’s identity until the district clerk receives confirmation that the person will be able to serve in the position.
On Friday, Jan. 16, Swiss, Schulze and the third commissioner will meet to prepare a list of 20 to 40 names from the list of qualified county residents. State law guides the selection of potential jurors. “The commissioners shall, to the extent possible, select grand jurors who the commissioners determine represent a broad cross-section of the population of the county, considering the factors of race, sex, and age.” (Art. 19.06, Code of Criminal Procedure).
The list will be sealed in an envelope, only to be opened by authorized officials in order to summon the people to appear on Feb. 4 for possible grand jury service. On that date, Judge Mills will use a random, mathematical formula to select the individuals to serve from the “array” of jurors. “Sometimes I select every other name, sometimes every third name until I have 12 qualified grand jurors and one alternate.”
Before the grand jury has been impaneled, any person may challenge the array of jurors or any person presented as a grand juror. Mills said the Feb. 4 selection process is open to the public and anyone who chooses to challenge a juror’s service may do so.
The grand jury that was impaneled in September 2008 included at least three members with ties to PEC. With more than 875 PEC employees in the hill country and its headquarters located in Johnson City, many Blanco County residents have ties to the PEC. Judge Mills said he does not voir dire the jury array about their personal history or beliefs prior to selecting the grand jury, so in that regard selecting the grand jury is much different than selecting a trial jury.
To serve on the grand jury, a person must take an oath to not allow “envy, hatred or malice” nor “love, fear, favor, affection or hope of reward” to affect their decision to indict or not indict a person for a crime.
Once the grand jury is impaneled, Judge Mills is not involved in the grand jury process unless the grand jury has a legal question and calls in the judge for legal advice.
Mills and his family attend the First United Methodist Church of Johnson City. Mills said it was mere coincidence that the three commissioners he initially selected for the new term had connections to the same church.
Since the PEC inquiry would require substantial staff with complex financial investigation expertise, District Attorney Sam Oatman officially turned over the PEC investigation to the attorney general in August. Although he is no longer involved in the PEC inquiry, Oatman explained the basics of the grand jury process in an interview this week. The prosecution presents all felony matters to a grand jury unless the defendant waives a grand jury. The jurors hear much more evidence, including hearsay, than is allowed in a trial. The prosecutor does not have to prove the case beyond a reasonable doubt; there is no specified “burden of proof” standard that must be met to obtain an indictment. “Double jeopardy” does not apply to the grand jury process, so if a grand jury “no bills” or does not return an indictment, the prosecutor may present the same case to the next grand jury.
Since the PEC matter dominated the time of the prior Blanco County grand jury and it appears the new grand jury will also be presented with PEC issues, Oatman said he has asked Judge Mills to consider appointing two Blanco County grand juries for the upcoming term. The attorney general can present PEC matters to one grand jury, and Oatman can present non-PEC felony cases to the second grand jury. As of press time, Judge Mills had not determined whether he would convene two simultaneous grand juries.