“Noting that proof of a fair cross-section claim is a ‘mathematical exercise, and must be supported by statistical evidence”
How later courts described this case
- “Noting that proof of a fair cross-section claim is a ‘mathematical exercise, and must be supported by statistical evidence”
- Finding legal issue of first impression too debatable to be subject of mandamus
Written by the judges who cited it.
The opinion
WR-41,706-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/29/2015 2:55:44 PM
Accepted 1/29/2015 4:30:08 PM
ABEL ACOSTA
CLERK
NO. ______________________________
RECEIVED
COURT OF CRIMINAL APPEALS
1/29/2015
IN THE COURT OF CRIMINAL APPEALS ABEL ACOSTA, CLERK
AT AUSTIN, TEXAS
__________________________________________________________________
LEON DAVIS,
Relator,
vs.
THE HONORABLE NINTH COURT OF APPEALS,
AT BEAUMONT, TEXAS,
Respondent
Arising from No. 09-14-00337-CR
Court of Appeal, Ninth District of Texas at Beaumont
__________________________________________________________________
LEON DAVIS' MOTION FOR LEAVE TO FILE
PETITION FOR WRIT OF MANDAMUS
__________________________________________________________________
COMES NOW, LEON DAVIS, Relator, by and through his Counsel of
Record, RICK BRASS, pursuant to TEX.R.APP.P. 72.1, and seeks leave of this
Honorable Court to file the attached Petition for Writ of Mandamus complaining of
the actions of the Court of Appeals For the Ninth District of Texas, Beaumont.
WHEREFORE, PREMISES CONSIDERED, Relator prays that this
motion be granted and that this Court grant him leave to file the attached Petition
for Writ of Mandamus.
RESPECTFULLY SUBMITTED,
BRASS & McCOTTER
207 SIMONTON
CONROE, TEXAS 77301
rbrass1@yahoo.com
Tel (936) 788-5700
Fax (936) 788-5701
Rick Brass
By:_________________________________
RICK BRASS
Texas Bar No. 02909450
CERTIFICATE OF SERVICE
I hereby certify that true and correct copies of the foregoing instrument were
mailed to the Respondent and counsel for the real parties in interest on the date of
the mailing of the original to the Clerk of this Court.
Rick Brass
________________________________
RICK BRASS
NO. ______________________________
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
__________________________________________________________________
LEON DAVIS,
Relator,
vs.
THE HONORABLE NINTH COURT OF APPEALS,
AT BEAUMONT, TEXAS,
Respondent
__________________________________________________________________
Arising from No. 09-14-00337-CR
Court of Appeal, Ninth District of Texas at Beaumont
__________________________________________________________________
RELATOR'S PETITION FOR WRIT OF MANDAMUS
__________________________________________________________________
Rick Brass
Rbrass1@yahoo.com
SBN: 02909450
207 Simonton
Conroe, Texas 77301
Phone: 936-788-5700
Facsimile: 936-788-5701
Counsel for Relator
Leon Davis
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex.R. App.Proc. 52.3(a), the realtor offers the following list of parties to this
case and counsel for the parties:
Respondent: THE HONORABLE NINTH COURT OF
APPEALS, AT BEAUMONT, TEXAS
Carol Anne Harley, Clerk of the Court
Ninth Court of Appeals
1001 Pearl St., Suite 330
Beaumont, TX 77701-3552
Relator: Leon Davis
Counsel for Davis: Rick Brass
BRASS & McCOTTER
Rbrass1@yahoo.com
SBN: 02909450
207 Simonton
Conroe, Texas 77301
Phone: 936-788-5700
Facsimile: 936-788-5701
Real Party In Interest: Brett W. Ligon
Montgomery County District Attorney
Counsel for Real Party In Interest: William J. Delmore III
Assistant District Attorney
207 W. Phillips, Second Floor
Conroe, Texas 77301
(936) 539-7800
Real Party In Interest: Barbara Adamick
Montgomery County District Clerk
Counsel for Real Party In Interest: M. Michael Meyer
Assistant District Attorney
207 W. Phillips, Second Floor
Conroe, Texas 77301
(936) 539-7828
Real Party In Interest: Honorable Kelly W. Case
9th Judicial District Court
301 North Main Street
Conroe, Texas 77301
Phone: (939)-539-7866
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i
JURISIDICTION .......................................................................................................1
STATEMENT OF FACTS ........................................................................................2
STATEMENT REGARDING ORAL ARGUMENT ............................................... 5
GROUNDS IN SUPPORT OF MANDAMUS RELIEF ........................................... 5
ARGUMENT AND AUTHORITIES ........................................................................ 6
I. THE STANDARD OF REVIEW FOR OBTAINING MANDAMUS
RELIEF .......................................................................................................6
II. MANDAMUS RELIEF IS APPROPRIATE IN THIS CASE ................... 7
A. RELATOR HAS NO ADEQUATE REMEDY AT LAW.............................. 8
B. RELATOR HAS A CLEAR RIGHT TO RELIEF ......................................... 9
1. The Trial Court’s order to produce the addresses of all jurors summonsed
during 2013 was not a “ministerial” act because the Montgomery County
Electronic Jury Selection Plan gives the Trial Court the authority to view the
address data ordered to be produced..............................................................10
2. The Trial Court did not abuse its discretion. .................................................12
A. The order to produce limited juror address data did not violate Article 35.29
of the Code of Criminal Procedure nor Section 62.0132 of the Government
Code. The Trial Court’s Order was discretionary, not a ministerial act;
therefore, the Trial Court did not abuse its discretion and mandamus relief
should not have issued. ..................................................................................13
a. Article 35.29 of the Code of Criminal Procedure was not violated in this
case because the juror address data is not collected from any juror
ii
questionnaire or information supplied during the voir dire process.............. 17
b. Section 62.0132 of the Texas Government Code is not violated in this case
because the address data is not collected from a jury questionnaire. ............ 16
c. The address data of those summoned is not protected information. ............ 17
i. The addresses of those jurors summoned are available from public sources..... 17
ii. The private vendor given the juror information is not under a confidentiality
agreement; however, the experts in this case will be subject to a confidentiality
agreement. ...........................................................................................................18
iii. The Jury Selection Plan states that the Judge has discretion to review the list of
all summoned prospective jurors and the Judge has appointed experts to review
only the jury address data. ..................................................................................19
B. The Trial Court has authority over the District Clerk of Montgomery County;
therefore the Trial Court’s Order to turn over address data was not an abuse of
discretion and mandamus relief should not have issued. ...................................19
1. §62.011(b)(4) of the Texas Government Code and Montgomery County
Electronic Jury Selection Plan Sections (B), (E), and (F) all provide that the
District Clerk is the agent of the District Court.............................................20
2. The District Clerk consented to the District Court’s personal jurisdiction. .. 22
3. The electronic data ordered to be produced already exists. ..........................23
C. Article 39.14 of the Texas Code of Criminal Procedure is inapplicable as the
requested juror address data is not in possession of the District Attorney nor any
of his agents; therefore, the Trial Court did not abuse its discretion and
mandamus relief should not have issued. ...........................................................24
D. The Compulsory Process Clause authorizes the Trial Court’s action; therefore,
the Trial Court did not abuse its discretion and mandamus relief should not have
issued...................................................................................................................24
iii
E. The juror address information is needed to ensure that Defendants in
Montgomery County are tried by a constitutionally valid jury; therefore, the
Trial Court did not abuse its discretion and mandamus relief should not have
issued...................................................................................................................25
1. The Fourteenth Amendment requires that equal protection must actually be
given to all and not be merely an empty promise ...............................................26
2. The Sixth Amendment right to a jury trial requires selection of a petit jury from
a representative cross section of the community. ...............................................28
F. The Constitutional complaint is ripe and valid; therefore, the Trial Court did not
abuse its discretion and mandamus relief should not have issued......................32
1. Because Davis is not seeking information from juror questionnaires, his
challenge is not premature. .................................................................................34
2. Evidence produced at the May 21, 2014, hearing demonstrates there is an
apparent exclusion of African-Americans in the jury summonsing process. ..... 34
PRAYER FOR RELIEF ..........................................................................................35
CERTIFICATE OF SERVICE ................................................................................36
VERIFICATION ......................................................................................................37
APPENDICES .........................................................................................................38
iv
INDEX OF AUTHORITIES
Cases:
Bill Hill v. Court of Appeals,
67 S.W.3d 177, 180 (Tex. Crim. App. 2001 ................................................... 9
Byke v. City of Corpus Christi,
569 S.W.2d 927, 932 (Tex.Civ.App. -- Corpus Christi 1978) ......................16
City of Rockwall v. Hughes,
246 S.W.3d 621, 625-26 (Tex. 2008) ............................................................15
Dickens v. Court of Appeals,
727 S.W.2d 542, 550 (Tex. Crim. App. 1987) ............................................7, 8
Fitzgerald v. Advanced Spine Fixation Sys., Inc.,
996 S.W.2d 864, 865-66 (Tex. 1999) ............................................................15
Hernandez v. Texas,
347 U.S. 475, 477 (U.S. 1954) ................................................................25, 32
Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee,
456 U.S. 694, 703 (U.S. 1982) ......................................................................23
Miles v. State,
157 Tex.Crim. 188, 247 S.W.2d 898, 899 (1952) ..........................................16
Missouri v. Duren,
439 U.S. 357, 364 (U.S. 1979) ......................................................................... 29
Nat'l Liab. & Fire Ins. Co. v. Allen,
15 S.W.3d 525, 527 (Tex. 2000) ...................................................................15
Padieu v. Court of Appeals of Texas, Fifth District,
392 S.W.3d 115, 117 (Tex. Crim. App. 2013) ....................................1, 7, 8, 9
Ramseur v. Beyer,
983 F. 2d 1215, 1230 (3d Cir. 1992) ............................................................... 29
v
Ruiz-Angeles v. State,
351 S.W.3d 489, 496 (Tex.App.— [14th Dist.] 2011) (pet. refused) ............ 14
Simmons v. Arnim, ,
110 Tex. 309, 324, 220 S.W. 66 (Tex. 1920) ..............................................15
Smith v. Texas,
311 U.S. 128, 130 (U.S. 1940) ......................................................................26
Taylor v. Louisiana,
419 U.S. 522, 528 (U.S. 1975) ......................................................................28
Texas Dept. of Corrections, Etc. v. Dalehite,
623 S.W.2d 420, 424 (Tex. Crim. App. 1981) ................................................9
United States v. Weaver,
267 F.3d 231, 240 (3d Cir. 2001) ..............................................................2, 30
United States of America v. James Stile,
2014 U.S. Dist. LEXIS 65390 (D. Me., 2014) ..............................................20
United States of Amerieca v. Kaboni Savage,
Robert Merritt, Steven Northington, Kidada Savage,
2012 U.S. Dist. LEXIS 142844 (E.D. Pa., 2012) ..............................19, 30, 31
United States v. Murphy,
464 F. App’x 60, 63 (3d Cir. 2012) ...............................................................30
United States v. Royal,
100 F.3d 1019, 1025 (1st Cir. 1996) ..............................................................34
United States v. Test,
420 U.S. 28, 29-30 (1975) .............................................................................31
Wade v. Mays,
689 S.W.2d 893, 898 (Tex. Crim. App. 1985) ...................................9, 10, 12
Washington v. McSpadden,
676 S.W.2d 420, 422 (Tex. Crim. App. 1984) ................................................ 9
vi
Statutes:
Texas Code of Criminal Procedure, Article 4.04 ...................................................... 1
Texas Code of Criminal Procedure, Article 35.29 ................ ii, 5, 12, 13, 14, 16, 17
Texas Constitution, Section V, Section 5 .................................................................. 1
Texas Government Code, Section 62.011 ................................... iii, 4, 10, 20, 21, 22
Texas Government Code, Section 62.0132 ............................. ii, iii, 5, 12, 13, 14, 17
Texas Government Code Ann, Section 311.011(a) ................................................15
Texas Rules of Appellate Procedure, Section 72.1.................................................... 1
United States Constitution, Sixth Amendment ..................... 6, 20, 25, 26, 28, 29, 30
United States Constitution, Fourteenth Amendment ...............................6, 26, 27, 28
vii
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
LEON DAVIS, Relator, by and through his Counsel of Record, RICK
BRASS of BRASS & McCOTTER, pursuant to TEX. R. APP. P. 72.1, files this
Petition for Writ of Mandamus, complaining of Respondent, the Honorable Ninth
Court of Appeals, in Beaumont, Texas, and of said Court’s Memorandum Opinion
in No. 09-14-00337-CR and in support thereof will show this Honorable Court the
following:
JURISIDICTION
This Court has mandamus jurisdiction over the Court of Appeals, Ninth
District of Texas at Beaumont, pursuant to Article 4.04 of the Texas Code of
Criminal Procedure along with Article V, Section 5 of the Texas Constitution. 1
“The court of criminal appeals does not have jurisdiction to review an appellate
court’s decision in its exercise of original jurisdiction by way of petition for
discretionary review, so mandamus is the realtor’s only remedy at law.” Padieu v.
Court of Appeals of Texas, Fifth District, 392 S.W.3d 115, 117 (Tex. Crim. App.
2013).
1
Art. 4.04, Sec. 1 “The Court of Criminal Appeals and each judge thereof shall have, and is
hereby given, the power and authority to grant and issue and cause the issuance of writ of habeas
corpus, and, in criminal law matters, the writ of mandamus, procedendo, prohibition and
certiotari. The court and each judge thereof shall have, and is hereby given, the power and
authority to grant and issue and cause the issuance of such other writs as may be necessary to
protect its jurisdiction or enforce its judgments.” TX. Code of Crim. Proc. Ann. Art. 4.04
1
STATEMENT OF FACTS
Relator, Leon Davis maintains the summoning process of jurors in
Montgomery County, Texas is broken because the process does not provide a
random and fair cross-section of the community. The number of African-
American venire-persons does not appear to be fair and reasonable in relation to
the number of such persons in the community.
Davis filed a motion challenging the jury selection process in Montgomery
County, Texas. On May 21, 2014 and upon Motion of Relator’s Counsel of
Record, the Ninth Judicial District Court, conducted an evidentiary hearing in
which several criminal defense attorneys provided evidence about the number of
African-American venire-persons they personally observed during jury selection
proceedings in previous trials.2 African-Americans are a distinctive group. See
United States v. Weaver, 267 F.3d 231, 240 (3d Cir. 2001).
At the May 21, 2014, evidentiary hearing, there was testimony from several
local lawyers regarding the sparsity of African-American jurors on jury panels.3
There was also testimony from Dr. Karl Eschbach, an expert demographer hired by
Davis, who reviewed the number of African-Americans summoned for jury duty.
2
The attorney witnesses were, Lydia Clay-Jackson, E. Tay Bond, Jerald Crow, Patricia
Magninnis, Brian Burns, Ray Stokes and Gilbert Garcia. See Reporter’s Record, Appendix A,
3
A transcription of the court-reporter’s notes from the May 21, 2014, the evidentiary hearing is
attached as Appendix A. This is referred to as the Reporter’s Record.
2
Based upon the evidence which Dr. Eschbach heard, he expressed the opinion that
further investigation was necessary to determine if the jury pool is racially
balanced.4
In order to complete his study, Dr. Eschbach testified that he would need
the address of every person summoned during the year 2013. The Trial Court
ordered the Montgomery County District Clerk (herein “District Clerk”) to provide
address data in electronic form of all individuals summoned for jury duty during
2013, which delivery would be conditioned upon the experts signing a
confidentiality agreement. 5
In addition, Dr. Eschbach explained that he and Max Beauregard, another
expert, sought the juror address information in order to overlay a map of the
summoned jurors’ addresses over another map reflecting the actual distribution of
African-American citizens throughout the county’s neighborhoods based upon the
2010 census.
All parties agree that the District Clerk receives the master list of eligible
jurors from the Secretary of State. This master list is made up of all individuals in
Montgomery County who either (1) are registered voters; (2) have a Texas driver’s
license; or (3) have a Texas state identification card. According to the Montgomery
County Electronic Jury Selection Plan, (herein the “Plan”) which is administered
4
See Reporter’s Record, Appendix A, Page 73, Line, 23 through Page 74, Line 3.
5
Appendix B Order Signed 8/4/2014 by Judge Case.
3
by the District Clerk, jurors are supposed to be summonsed on a random basis.
The summonses are produced by a computer program approved under Section
62.011 of the Government Code. (“Electronic or Mechanical Method of
Selection).”6
At the same May 2014 evidentiary hearing, the District Clerk’s attorney of
record took the lead in cross-examining Davis’ witnesses and expert. 7 At that
hearing, the District Clerk offered no rebuttal testimony and called no witnesses to
rebut the testimony presented by Davis. 8 The only evidence before the respondent
judge was the evidence elicited by Davis through his attorney of record. Neither
the District Clerk nor the Montgomery County District Attorney (herein “District
Attorney”) presented any evidence to rebut Davis’ contention.
On October 8, 2014, the Court of Appeals for the Ninth District of Texas at
Beaumont conditionally granted the mandamus petition of Brett W. Ligon, the
Montgomery County District Attorney, and Barbara Adamick, the Montgomery
County District Clerk, ordering the Trial Court of the Ninth Judicial District Court
of Montgomery County, Texas, to vacate his order requiring disclosure to the
6
See Tex. Gov’t Code Ann. § 62.011 (West 2013). The trial court --although engaged in a
hearing about jury selection procedures—did not admit into evidence the Montgomery County’s
electronic jury selection plan adopted by the board of judges and commissioner’s court pursuant
to section 62.011; but the trial court did permit it to be included in the record for this Court’s
review, and a copy is attached as Appendix C. See Reporter’s Record, Appendix A, Line 25,
Page 122 through Line 4, Page 124.
7
See Reporter’s Record, Appendix A, Page 3 showing that the State and the District Clerk called
no witnesses.
8
See Reporter’s Record, Appendix A, Page 8, Lines 2 through 4.
4
defense’s retained experts only the address of every person summoned for jury
service in Montgomery County for 2013.
STATEMENT REGARDING ORAL ARUGMENT
Counsel for the Appellee requests oral argument and believes that it would
be beneficial to the Court to be available to respond to questions regarding this
case and the applicable law involved.
GROUNDS IN SUPPORT OF MANDAMUS RELIEF
The Beaumont Court of Appeals misapplied the law by making confidential,
information which is provided to Montgomery County under its Jury Selection
Plan by the Secretary of State and by the Department of Public Safety, when that
information is not designated as “confidential” by Texas law. 9 This information is
used to compile the “jury wheel” in order to summons those who might serve on a
jury.
1. Article 35.29 of Texas Code of Criminal Procedure and Section 62.0132 of
the Texas Government Code do not apply to the Trial Court’s Order because
information obtained from juror summons is separate and distinct from
information gathered from juror questionnaires; the summons data (here,
Trial Court’s Order for addresses of all those summonsed in 2013) is not
confidential, while the questionnaire data (gathered from the venire panel
9
Tex Gov’t Code Section 62.0312(f) which makes only information given by a prospective
juror in response to a juror questionnaire.
5
during the voir dire process) is confidential. Therefore, mandamus against
the Trial Court should not have issued and this Court should issue
mandamus against the Ninth Court of Appeals.
2. The Montgomery County Electronic Jury Selection Plan gives the Trial
Court the authority over the Montgomery County District Clerk, who is in
possession of the address data, and that data is not part of criminal
discovery, so the Montgomery County District Attorney is not a proper
party. Therefore, mandamus against the Trial Court should not have issued
and this Court should issue mandamus against the Ninth Court of Appeals.
3. The Compulsory Process Clause grants the Trial Court authority to issue the
Order to secure petit juror address data. Therefore, mandamus against the
Trial Court should not have issued and this Court should issue mandamus
against the Ninth Court of Appeals.
4. The Fourteenth and Sixth Amendments to the United States Constitution
provide Davis with the right to be tried by a jury that fairly represents
Montgomery County, Texas and the testimony from May 21,2014 warrants a
statistical investigation of the Montgomery County jury summonsing
process.
5. Davis has a valid and ripe Constitutional complaint regarding the jury
summoning process of Montgomery County, Texas. Davis’ complaint is
supported by evidence and testimony which suggests a systematic exclusion
of African-Americans in the jury summoning process. The complaint is not
premature and mandamus relief against the court of appeals should issue.10
ARGUMENT AND AUTHORITIES
I. THE STANDARD OF REVIEW FOR OBTAINING MANDAMUS
RELIEF
“The traditional two-prong test for mandamus relief requires that a relator show
he has no adequate remedy at law and that the action he seeks to compel is
10
Appendix A, Reporter’s Record
6
ministerial, rather than one involving judicial discretion. Padieu v. Court of
Appeals of Tex., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013). “However, when
this Court reviews an appellate court’s mandamus decision, the inquiry is whether
there was a clear abuse of discretion, and this Court’s review is conducted
“essentially conducted by taking a ‘de novo application of the two pronged test
mentioned above.’” Id. Therefore, Davis must show the Ninth Court of Appeals
abused its discretion because (1) the Trial Court did not violate a ministerial duty
and (2) Davis has no adequate remedy at law. Dickens v. Court of Appeals, 727
S.W.2d 542, 550 (Tex. Crim. App. 1987); see also Padieu, 392 S.W.3d at 117.
In this case, Davis seeks mandamus relief against the Ninth Court of Appeals
after that court conditionally granted mandamus relief against the Trial Court of
the Ninth Judicial District Court of Montgomery County, Texas and asks this
Honorable Court to mandamus the Ninth Court of Appeals and order the Beaumont
Court to withdraw its mandamus order.
II. MANDAMUS RELIEF IS APPROPRIATE IN THIS CASE
At the Ninth Court of Appeals, Relators were the Montgomery County District
Attorney and the District Clerk and they sought a mandamus to vacate the Trial
Court’s order requiring the District Clerk to turn over the electronic address data of
7
those summoned as prospective jurors during 2013. 11 Because this is a case in
which a mandamus has already been conditionally granted, Davis cannot petition
for discretionary review and has no remedy at law other than to seek a mandamus
action against the court of appeals. Padieu, 392 S.W.3d at 117; see also Dickens,
727 S.W.2d at 549.
Davis has a clear right to relief in having the mandamus against the Trial Court
overturned because the Ninth Court of Appeals clearly abused its discretion. Davis
contends that the Ninth Court of Appeals abused its discretion because: (1) the
Trial Court’s order was not a “ministerial” act since the Plan gives the trial court
the authority to view the summonsed jurors, and (2) the Trial Court’s order did not
violate any provision of the Code of Criminal Procedure or the Texas Government
Code.
A. RELATOR HAS NO ADEQUATE REMEDY AT LAW
In this case, the Ninth Court of Appeals conditionally granted a mandamus
against the Ninth Judicial District Court of Montgomery County, Texas. Since
mandamus is an exercise of original jurisdiction, this Honorable Court cannot
review the Ninth Court of Appeal’s action under a petition for discretionary
review; therefore, Davis has no other remedy at law other than to seek a mandamus
11
Appendix “B” Order dated 4 August 2014 signed by Judge Case
8
action against the Ninth Court of Appeals at Beaumont. Padieu, 392 S.W.3d at
117.
B. RELATOR HAS A CLEAR RIGHT TO RELIEF
In order for mandamus to issue, the District Attorney and District Clerk must
show that “there [was] no other adequate remedy available and that the act sought
to be mandated [was] a ministerial act.” Washington v. McSpadden, 676 S.W.2d
420, 422 (Tex. Crim. App. 1984). 12 An action is considered to be “ministerial”
when the law clearly spells out the duty to be performed and does so with such
certainty that nothing is left to the exercise of discretion or judgment. Texas Dept.
of Corrections, Etc. v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981).
Mandamus cannot issue to compel an act that is to any degree discretionary or
debatable, State ex rel. Wade v. Mays, 689 S.W.2d 893, 898 (Tex. Crim. App.
1985), and a ruling on a pure question of law is not subject to mandamus review if
that law is unsettled or uncertain. State ex rel. Bill Hill v. Court of Appeals, 67
S.W.3d 177, 180 (Tex. Crim. App. 2001) (Finding legal issue of first impression
too debatable to be subject of mandamus).
Davis agrees that the District Clerk had no other remedy available at law;
therefore, the writ of mandamus was the correct manner to challenge the trial
12
The District Attorney was not ordered to produce anything and is not really a real party in
interest. (See Appendix B Order Signed 8/4/2014 by Judge Case.)
9
court’s order. However, the mandamus should not have been conditionally granted
by the Ninth Court of Appeals because the trial court did not abuse its discretion
and the trial court did not violate a ministerial duty. The District Clerk did not
satisfy both prongs of the two part test.
1. The Trial Court’s order to produce the addresses of all jurors summonsed
during 2013 was not a “ministerial” act because the Montgomery County
Electronic Jury Selection Plan gives the Trial Court the authority to view
the address data ordered to be produced.
An action is considered to be “ministerial” when the law clearly spells out
the duty to be performed and does so with such certainty that nothing is left to the
exercise of discretion or judgment. Dalehite, 623 S.W.2d at 424. Mandamus
cannot issue to compel an act that is to any degree discretionary or debatable,
Mays, 689 S.W.2d at 898. In this case, the Trial Court’s August 4, 2014 Order was
not a violation of a ministerial act because the Montgomery County Electronic Jury
Selection Plan gives the Trial Court the authority to view the data. 13
The Trial Court ordered the District Clerk to provide address data in
electronic form of all individuals summoned for jury duty during 2013. 14 The
13
F. Selection of Jurors: (Gov’t Code 62.011)
(Page 7 of 9) ... The person/vender shall transmit the original summarized jury list containing the
names and addresses of all prospective jurors summoned for each date of appearance to the Jury
Coordinator. The Jury Coordinator/representative shall deliver such list to the County Clerk’s
Office for filing. A duplicate copy shall be retained by the Jury Coordinator, to be viewed
at the Judge’s discretion.”
14
Appendix B Order Signed 8/4/2014 by Judge Case.
10
names of persons who will be summoned for jury service are electronically chosen
from the Jury Wheel (see
www.mctx.org/dept/departments_d/district_clerk/jury_service.html). This website
states that the list of those summoned is compiled from Texas Driver’s Licenses
and Voter Registration lists, which are both public data sources and which are not
confidential. 15
The Plan specifically provides in Subsection F that the list containing the
names and addresses of all prospective jurors summoned shall be retained to be
viewed at the Judge’s discretion. The Trial Court’s order states that the address
data of all jurors summoned during 2013 shall be turned over to the defense
experts under a confidentiality agreement to test whether there is a systematic
exclusion of African-American citizens from jury service. Given that the Trial
Court is authorized under the Plan to view the list, it is not unreasonable to contend
that the Trial Court possesses the discretion to permit the juror address data to be
15
The Plan provides that the sources of the names for the Jury Wheel are as follows:
A. Sources
The sources from which all names shall be taken is the current voter registration lists from all
precincts in Montgomery County and all names on a current list to be furnished by the
Department of Public Safety showing the citizens of Montgomery County who hold a valid
Texas Driver’s License and the citizens of the County, other than persons who are disqualified
from Jury service, who hold a valid personal identification card or certificate held by the
Department of Public Safety, except those exempt from jury service as provided by Sections
62.108 and 62.109 of the Government Code; and further provided that at any stage of this plan
the voter registrar of Montgomery County, the Department of Public Safety, the Secretary of
State, or the Montgomery County District Clerk may remove from Jury Service duplications of
any citizen's name, or the name of any citizen who is disqualified from jury service, such as
felons or aliens.
11
viewed by experts under a confidentiality agreement. The Ninth Court of Appeals
should not have conditionally granted the mandamus against the Trial Court for the
August 4, 2014 Order because the Trial Court’s Order was within its discretion.
See Mays, 689 S.W.2d at 898.
In sum, because the Plan authorizes the Trial Court to view the data which it
ordered to be turned over to Dr. Karl Eschbach and Mr. Max Beauregard under
confidentiality agreements and because the data already exists this was not a
ministerial act and the Ninth Court of Appeals should not have issued mandamus
relief.
2. The Trial Court did not abuse its discretion.
A. The order to produce limited juror address data did not violate Article
35.29 of the Code of Criminal Procedure nor Section 62.0132 of the
Government Code. The Trial Court’s Order was discretionary, not a
ministerial act; therefore, the Trial Court did not abuse its discretion and
mandamus relief should not have issued.
The Court of Appeals for the Ninth District of Texas at Beaumont
incorrectly applied the law. The Beaumont Court equated the information used
to summons a juror with the information provided by the juror when answering
the juror questionnaire. 16 As a result, the Beaumont Court wrongly found that
the “name, address, juror number and TDL or voter registration number on the
16
Appendix D, Page 4 (the Memorandum)
12
front of the summons” is confidential under Section 62.0132 of the Texas
Government Code. 17 The Ninth Court of Appeals concluded that the juror
summons information provided by the Secretary of State and by the Department
of Public Safety is confidential when none of the juror summons data ordered to
be disclosed is labeled as “confidential” by the Texas Legislature. At Page 5 of
the Memorandum Opinion, the Court stated:
Davis argues that each summoned juror’s address is not confidential
in this context, because the questionnaire itself is not being disclosed.
Montgomery County’s jury selection plan states that the information
retained by the District Clerk’s Jury Coordinator is a computer
printout of “the specified number of prospective jurors with their
name, address, juror number and TDL or voter registration number
on front of the summons.” This is the confidential information
mentioned in section 62.0132 of the Texas Government Code and
article 35.29 of the Texas Code of Criminal Procedure. See Tex. Gov’t
Code Ann. § 62.0132; Tex. Code Crim. Proc. Ann. art. 35.29. 18 The
jurors’ personal information is not transformed from confidential to
public information even though under Montgomery County’s jury
selection plan the District Clerk prints a “summarized jury list
containing the names and addresses of all prospective jurors
summoned for each date of appearance” and a judge who requested a
jury is allowed to see the printout.
17
Appendix D, Page 5 (the Memorandum)
18
Davis did not argue, in this Court or in the trial court, that he presented good cause for the trial
court to order disclosure of personal information about jurors. See Tex. Code Crim. Proc. Ann.
art. 35.29(b) (West Supp. 2014).
13
There is a distinction between (a) a person who is summoned for jury
service, (b) a person who responds to such a summons and is included in a venire,
and (c) a person who actually is selected from a venire to serve on a jury. See
Ruiz-Angeles v. State, 351 S.W.3d 489, 496 (Tex.App.— [14th Dist.] 2011) (pet.
refused).
Persons who are summoned for jury service are also provided a written jury
summons questionnaire (“questionnaire”). The questionnaire is to be completed by
the person who responds to the summons and is included in the venire. The
summons is separate and distinct from the questionnaire. The summons data is
provided by the Texas Secretary of State and Texas Department of Public Safety.
The questionnaire data comes from the person who responds to the summons.
Accordingly, Article 35.29 of the Code of Criminal Procedure and Section
62.0132 of the Government Code do not apply to this case. Article 35.29 of the
Code of Criminal Procedure restricts the disclosure of information obtained from
jurors by means of juror questionnaires. Section 62.0132 of the Government Code
provides for the confidentiality of such information contained in juror
questionnaires and provides for limited disclosure. Both of these provisions deal
with information obtained from jurors responding to questionnaires and these
statutory provisions should not be expanded to include the data ordered disclosed
in this case, namely, the addresses from all jurors summoned in 2013.
14
When construing a statute, a reviewing court should determine and give
effect to the legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d
525, 527 (Tex. 2000). If the meaning of the statutory language is unambiguous, a
reviewing court adopts, with few exceptions, the interpretation supported by the
plain meaning of the provision's words and terms. See Fitzgerald v. Advanced
Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). If a statute is
unambiguous, rules of construction or other extrinsic aids cannot be used to create
ambiguity. Id. at 866. When interpreting a code enacted by the legislature, the
Court should read words and phrases in context and construe them according to the
rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a). If
words are not defined, they are given their plain and common meaning, unless the
context of the statute indicates a contrary intention or it leads to an absurd result.
See City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008).
In Simmons v. Arnim, 110 Tex. 309, 324, 220 S.W. 66 (Tex. 1920), the
Texas Supreme Court discusses a court's duty when reviewing, addressing and
accepting the plain, unequivocal statutory language:
Courts must take statutes as they find them. More than that, they should be
willing to take them as they find them. They should search out carefully the
intendment of a statute, giving full effect to all of its terms. But they must
find its intent in its language, and not elsewhere. They are not the law-
making body. They are not responsible for omissions in legislation. They are
responsible for a true and fair interpretation of the written law. It must be an
interpretation which expresses only the will of the makers of the law, not
15
forced nor strained, but simply such as the words of the law in their plain
sense fairly sanction and will clearly sustain.
Id. At 70. In Byke v. City of Corpus Christi, 569 S.W.2d 927, 932 (Tex.Civ.App. -
- Corpus Christi 1978), the Thirteenth Court of Appeals also stated that, "When
the courts abandon the plain, ordinary and customary meaning of words in
common usage, statutory construction rests upon insecure and obscure foundations
at best." In Miles v. State, 157 Tex.Crim. 188, 247 S.W.2d 898, 899 (1952) this
Honorable Court stated that, “This court, under the guise of statutory construction,
cannot write into the statute that which is not contained therein.” Davis contends
that the address information used to summons a prospective juror is not
confidential as held by the Ninth Court of Appeals.
a. Article 35.29 of the Code of Criminal Procedure was not violated in this
case because the juror address data is not to be collected from any juror
questionnaire or information supplied during the voir dire process.
Article 35.29 of the Code of Criminal Procedure protects information
collected during the jury selection process from potential jurors. The Article
provides for limited disclosure. The Order in this case had nothing to do with
information collected from persons who serve as a juror or appear during the
venire process. The Order relates to all jurors summoned in 2013 (those who were
mailed a summons) and is limited to the juror address data alone. Thus, Article
16
35.29 does not apply because the addresses to be reviewed by the experts relate to
the jury summoning process, not the jury selection process 19.
b. Section 62.0132 of the Texas Government Code is not violated in this case
because the address data is not being collected from a jury questionnaire.
Section 62.0132 of the Texas Government Code protects information
contained in jury questionnaires. The Order in no way relates to information
contained in jury questionnaires. No information from juror questionnaires is
being requested; therefore, Section 62.0132 is wholly inapplicable.20
c. The address data of those summoned is not protected information.
i. The addresses of those jurors summoned are available from public sources.
The August 4, 2014 Order only orders the District Clerk to turn over the
addresses of those persons summoned during 2013. 21 Moreover, the information is
being given to retained experts under confidentiality agreements.22 The addresses
of those registered to vote in the county are easily obtainable through the
Montgomery County Elections Administration. 23 All that is required to obtain the
names and addresses of every person registered to vote in Montgomery County is
19
Section 62.0132(f), Texas Government Code makes juror supplied information obtained
through questionnaires confidential and does not address the summons process.
20
Article 35.29(a), Texas Code of Criminal Procedure, provides that information collected by the
court or a prosecuting attorney during the jury selection process….is confidential.
21
Appendix B Order Signed 8/4/2014 by Judge Case.
22
Appendix B Order Signed 8/4/2014 by Judge Case.
23
See http://www.mctx.org/election/
17
for a request to be made. The information is then available for download
immediately and no fee is required for this service. 24
Given that the jury list is compiled using the voter registration list and that
the names and addresses of all on the jury list are available publicly, it was not an
abuse of discretion for Trial Court to order just the addresses of those summoned
to be turned over to the defense experts under confidentiality agreements. In fact,
the juror address information is more protected under the trial court’s order than
other methods by which such information is typically made available to the public.
ii. The private vendor given the juror information is not under a confidentiality
agreement; however, the experts in this case will be subject to a
Confidentiality Agreement.
The Plan provides for a person or vendor to print out the summons for jurors
after a request for jurors has been made. 25 The Plan does not state whether this
person or outside vendor is under any type of confidentiality requirement. Yet,
once again, the trial court’s August 4, 2014 Order does provide for the addresses to
be given to the retained experts under a confidentiality agreement. 26 The Order
further provides for the addresses data to “only be used for the purposes stated in
this Order and not disseminated or shared with any other person or entity.” 27
24
See http://www.mctx.org/election/
25
Appendix C (The Plan)
26
Appendix B Order Signed 8/4/2014 by Judge Case.
27
Appendix B Order Signed 8/4/2014 by Judge Case.
18
iii. The Jury Selection Plan states that the Judge has discretion to review
the list of all summoned prospective jurors and the Judge has appointed
experts to review only the jury address data.
The Plan states that the jury list containing the names and addresses of all
prospective jurors summoned for each date of appearance shall be retained to be
viewed at the Judge’s discretion.28 Given that the Trial Court can view the list, it
is not unreasonable that the Trial Court may permit experts to view the data in the
Trial Court’s place in order to conduct a study.
In sum, only the addresses of those summoned for jury duty in 2013 is in
contention. Those persons registered to vote in Montgomery County are already
subject to having their names and addresses given out upon a public information
request that is available to be online at no charge. The trial court’s order does not
order names to be disclosed. Just addresses. Given that the Trial Court can view
the list itself, it is not offensive for retained experts under confidentially
agreements to see the addresses of those summoned for jury during 2013.
B. The Trial Court has authority over the District Clerk of Montgomery
County; therefore the Trial Court’s Order to turn over address data was
not an abuse of discretion and mandamus relief should not have issued.
As held in United States of America v. Kaboni Savage, Robert Merritt,
Steven Northington, Kidada Savage, 2012 U.S. Dist. LEXIS 142844 (E.D. Pa.,
2012), the Clerk of the Court is the party who holds the juror information
28
Appendix C, Page 8 (the Plan)
19
requested and the party who “bears the burden” of providing the defendant with
access to the juror information. See Id. at 21. The Court in United States of
America v. James Stile, 2014 U.S. Dist. LEXIS 65390 (D. Me., 2014) also
ordered the Clerk of the Court to provide the defense with juror information.
Accordingly, in this case, the trial court did have the authority to order the clerk
of the court, the Montgomery County District Clerk, to provide the defense with
the address data.
Furthermore, the trial court has authority over the District Clerk pursuant to
Section 62.011(b)(4) of the Texas Government Code, the Plan, and according to
the compulsory process clause of the Sixth Amendment to the U.S.
Constitution.
1. §62.011(b)(4) of the Texas Government Code and Montgomery County
Electronic Jury Selection Plan Sections (B), (E), and (F) all provide that the
District Clerk is the agent of the District Court.
The District Clerk was ordered to produce information which the District
Clerk possesses as a result of her official designation. The Plan provides:
B. Official in Charge: (Gov’t Code Sec. 62.001, b-1)
The District Clerk of Montgomery County, Texas is
designated as the official in charge of the Montgomery
County Jury Selection process...
20
E. Presiding Judge/Appointee: (Gov’t Code Sec. 62.011,
62.110-b)
The District Clerk, appointed by the Presiding Board
of Judges on August 5, 2005...
F. Selection of Jurors: (Gov’t Code 62.011)
Each week or month, or three (3) weeks prior to
requested appearance, the Court Coordinator, under the
direction of the Judge of each County and District Court
shall submit to the District Clerk Jury Coordinator a Court’s
“Request for Jurors.” (Being form #2 of the Jury Pool
Guidelines). The request shall specify the following:
1. dates of appearances;
2. number of jurors to appear for each date;
3. appearance time for each date; and
4. the Courtroom or place designated as a Courtroom
or assembly area for jurors to appear on each date.
On Thursdays of each week, the Jury Coordinator or
representative will calculate from the timely filed requests, the
specified number of jurors to appear three weeks away. The
Jury Coordinator shall electronically transmit these requests to
the designated person/vendor. The designated person shall
cause their computer to print out the specified number of
prospective jurors with their name, address, juror number and
TDL or voter registration number on front of the summons.
These summons shall be placed in the mail within two (2) days
from the date of request by jury coordinator, per designation of
the Sheriff. The person/vender shall transmit the original
summarized jury list containing the names and addresses of
all prospective jurors summoned for each date of appearance
to the Jury Coordinator. The Jury Coordinator/representative
21
shall deliver such list to the County Clerk’s Office for filing. A
duplicate copy shall be retained by the Jury Coordinator, to
be viewed at the Judge’s discretion.”
29
The Montgomery County Jury Selection Plan (Emphasis added). Each of the
above provisions show the District Clerk is essentially the agent of the trial court.
The District Clerk already possesses the data in the form the District Clerk
was directed to produce.30 It is as a result of the designation by a majority of the
Judges of District Court of Montgomery County, Texas, that the District Clerk is
the official who handles juror data and is designated as the official in charge of the
Montgomery County Jury Selection Process. In this specific capacity, the District
Clerk is under the direction of the District Judges and this designation was made
under the provision of Section 62.011 of The Texas Government Code.
2. The District Clerk consented to the District Court’s personal
jurisdiction.
Not only is the District Clerk the agent of the District Court Judges, but the
District Clerk waived any argument to jurisdiction over her office when she filed
31
her Motion for Protective Order and when she appeared through counsel at the
29
Appendix C (the Plan), (B), (E), and (F).
30
Appendix C (The plan) (F)
31
Appendix E (Motion for Protective Order)
22
hearing on May 21, 2014. See Ins. Corp. of Ir. v. Compagnie Des Bauxites De
Guinee, 456 U.S. 694, 703 (U.S. 1982).
3. The electronic data ordered to be produced, already exists.
The Trial Court’s Order states:
“IT IS ACCORDING ORDERED that the District Clerk of Montgomery
County produce to the experts appointed by this Court in this cause, to-wit:
Dr. Karl Eschbach, and Mr. Max Beauregard, the address data of all jurors
summoned for jury duty during the calendar year 2013 in electronic form.
...” 32
The August 4, 2014 Order provided only the address data of all jurors
summoned be given to the experts. The Order further stated that the experts must
execute confidentiality agreements to ensure the data will only be used for the
expert’s limited purpose of determining whether there is a systematic exclusion of
African-American citizens from jury service in Montgomery County, Texas. The
address data of all prospective jurors who were summoned during 2013 already
exists. Section F of the Montgomery County Electronic Jury Selection Plan at
page 8 of 9 provides that the “summarized jury list containing the names and
addresses of all prospective jurors summoned for each date of appearance” will be
filed with the County Clerk’s office and “A duplicate copy shall be retained by the
Jury Coordinator, to be viewed at the Judge’s discretion.” Therefore, the Trial
32
Appendix A
23
Court’s Order calling for the production of juror address data of those summoned
in 2013 already exists in an electronic format. The County Clerk and Jury
Coordinator both have a copy of the address information, although the juror’s
name must be removed, but the information already exists and should be easily
obtainable. Furthermore, the Plan provides that the Judge may view said jury list
at his discretion. Given that the address data exists and is subject to be reviewed
by the Judge (or the experts he has appointed), it is not an undue burden for the
District Clerk to produce the address data in electronic format.
C. Article 39.14 of the Texas Code of Criminal Procedure is inapplicable
case as the requested juror address data is not in possession of the
District Attorney nor any of his agents; therefore, the Trial Court did
not abuse its discretion and mandamus relief should not have issued.
The District Attorney of Montgomery County argued that the broad
discovery provision in Article 39.14 of the Texas Code of Criminal Procedure
establishes that the Trial Court cannot issue the order for juror addresses. Davis
agrees in as much as the discovery statute is not on point in this case because the
District Attorney nor any agent or representative of the State possess the address
data. The juror address data is in the possession of the District Clerk and the Code
of Criminal Procedure is not on point.
D. The Compulsory Process Clause authorizes the Trial Court’s action;
therefore, the Trial Court did not abuse its discretion and mandamus relief
should not have issued.
24
Davis further contends that under the compulsory process clause of the Sixth
Amendment to the U.S. Constitution, the trial court has the authority to issue an
order to secure petit juror information. Davis has presented evidence questioning
the fair and reasonable representation of African-Americans in the jury selection
process. The Sixth Amendment to the U.S. Constitution provides for trial by an
“impartial jury of the State and district wherein the crime shall have been
committed”. The Sixth Amendment further guarantees that a defendant may call
witnesses on his behalf and compel a witness’s presence by subpoena. Davis
argues that the compulsory process clause also guarantees that a court has the
power to issue an order for the District Clerk to produce juror address data.
E. The juror address information is needed to ensure that Defendants in
Montgomery County are tried by a Constitutionally valid jury; therefore,
the Trial Court did not abuse his discretion and mandamus relief should
not have issued.
“It is a denial of the equal protection of the laws to try a defendant of a
particular race or color under an indictment issued by a grand jury, or before a petit
jury, from which all persons of his race or color have, solely because of that race or
color, been excluded by the State, whether acting through its legislature, its courts,
or its executive or administrative officers.” Hernandez v. Texas, 347 U.S. 475, 477
(U.S. 1954). Davis’s position is not that there must be African-Americans on each
jury panel of Montgomery County, but the limited research already conducted and
25
the testimony of seasoned criminal defense attorneys in Montgomery County
shows there is a breakdown in the jury summonsing process and the address data is
needed.
The Fourteenth Amendment requires that equal protection must be given to
all. U.S. CONST. amend. XIV, § 1; Tex. Const. art. I, §§3, 19. Additionally, the
Sixth Amendment requires that the selection of a petit jury must come from a
cross-section of the community that fairly represents that community. U.S. CONST.
amend. VI. Combined, the two provisions provide every person with the right to
be tried by a jury that fairly represents the community in which he is tried.
1. The Fourteenth Amendment requires that equal protection must
actually be given to all and not merely an empty promise.
The Fourteenth Amendment requires that equal protection must be given.
U.S. CONST. amend. XIV, § 1; Tex. Const. Art. I, §§3, 19. This right is not just
another empty promise on a cherished piece of paper; it is a right that has “bite.”
“It is part of the established tradition in the use of juries as instruments of public
justice that the jury be a body truly representative of the community.” Smith v.
Texas, 311 U.S. 128, 130 (U.S. 1940). “For racial discrimination to result in the
exclusion from jury service of otherwise qualified groups not only violates our
Constitution and the laws enacted under it but is at war with our basic concepts of
26
a democratic society and a representative government. 33 Id. “The fact that the
written words of a state’s laws hold out a promise that no such discrimination will
be practiced is not enough.” Id. “The Fourteenth Amendment requires that equal
protection to all must be given – not merely promised.”
Following this line of reasoning from the United State Supreme Court as
quoted herein, it follows that just because the laws of this State set forth a
mechanism of selecting members of the Montgomery County population for the
petit jury, and those mechanisms alone do not appear to be discriminatory that does
not mean discrimination is not occurring in Montgomery County, Texas. The
Fourteenth Amendment requires that equal protection must actually be given; a
promise of equal protection is not good enough. See id. That is why it is so
important in this case for this Honorable Court to overturn the mandamus granted
by the Ninth Court of Appeals. The Trial Court found, after hearing arguments of
counsel, examining the pleadings, and hearing the testimony given, that there does
appear to be a problem with the Montgomery County jury system. The juror
address data covered by the Trial Court’s order is to investigate the jury system of
Montgomery County and to ensure that equal protection is being given to the
33
“No citizen possessing all other qualifications ... shall be disqualified for service as grand or
petit juror in any court of the Unit States, or of any State, on account of race, color, or previous
condition of servitude; ...” 18 Stat. 336, 8 U.S.C. §44.”
27
citizens of Montgomery County. This information is needed to ensure that the
Fourteenth Amendment has not been turned into an empty promise.
In this case, when the Trial Court ordered the District Clerk to give to Davis’
experts the addresses of prospective jurors summoned during 2013 under
confidentiality agreements, the Trial Court did not abuse its discretion. Instead, the
Trial Court was taking steps to ensure that the defendant is, in fact, getting equal
protection under the laws of this State. In light of the evidence from the May 2014
hearing, the Trial Court’s order allows the defense the opportunity (1) to test the
fairness of the jury summonings system of Montgomery County and (2) to prove
that the summonings system of jurors does not provide a random and fair cross-
section of the community.
2. The Sixth Amendment right to a jury trial requires selection of a petit jury
from a representative cross section of the community.
The Supreme Court of the United States has found that “the selection of a
petit jury from a representative cross section of the community is an essential
component of the Sixth Amendment right to a jury trial.” Taylor v. Louisiana, 419
U.S. 522, 528 (U.S. 1975). Encompassed among a defendant’s right to trial by
jury is the right to a petit jury that is selected “at random from a fair cross section
of the community in the district ... wherein the court convenes.” Id. at 529, citing
28 U.S.C. §1861. Having a jury that comes from a fair cross-section of the
28
community is “fundamental to the American system of justice.” Id. at 530. The
right to have a trial by jury “presupposed a jury drawn from a pool broadly
representative of the community....” Id.
In order to make a prima facie showing that the jury selection process violates
the fair cross-section of the community requirement of the Sixth Amendment, a
Defendant must show: (1) that the group alleged to be excluded is a "distinctive"
group in the community: (2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) that this under-representation is due to systemic
exclusion of the group in the jury selection process. Missouri v. Duren, 439 U.S.
357, 364 (U.S. 1979).
In this case, the group being is excluded, African-Americans, is a distinctive
group. Ramseur v. Beyer, 983 F. 2d 1215, 1230 (3d Cir. 1992). Davis has elicited
testimony that the representation of African-Americans in the jury selection process
is not fair and reasonable considering the number of such persons in the community.
Davis sought the information ordered disclosed by the trial court show a statistical
disparity between the venire and the population of the county.
The United States of America v. Kaboni Savage, Robert Merritt, Steven
Northington, Kidada Savage, 2012 U.S. Dist. LEXIS 142844 (2012) is a federal
29
case similar to the case at hand. In that case, the African-American defendant
believed the racial makeup of the Eastern District of Pennsylvania, when compared
to Philadelphia County, did not represent a fair cross-section of the community.
Id. at 2-5. The defendant was relying on census data to show the dilution of
African-Americans, but “use of census data alone is insufficient to establish a
constitutional violation.” Id. at 12 citing United States v. Murphy, 464 F. App’x
60, 63 (3d Cir. 2012). Therefore, the defendant was seeking disclosure of a host of
things related to the jury summonsing process and the Government was refusing to
disclose any information that exposed personal information of prospective jurors.
United States of America, 2012 U.S. Dist. LEXIS 142844 at 14-16.
While analyzing the requested information in light of the law regarding a
jury selection process that violates the fair cross-section of the community
requirement of the Sixth Amendment, the Court held that making the prima facie
showing “requires a showing of a statistical disparity between the entire venire and
the population of the district.” Id. at 17 citing United States v. Weaver, 267 F.3d
231,240 (3d Cir. 2001) (“Noting that proof of a fair cross-section claim is a
‘mathematical exercise, and must be supported by statistical evidence”). A federal
statute on point “makes clear that a litigant has essentially an unqualified right to
inspect jury lists and grants access in order to aid parties in the preparation of
motions challenging jury-selection procedures.” United States of America, 2012
30
U.S. Dist. LEXIS 142844 at 18-19; See 28 U.S.C. §1867(f); See also United States
v. Test, 420 U.S. 28, 29-30 (1975). While this is “not a license for litigation to
rummage” through jury records, it does afford inspection to complete a
determination of whether the jury is being selected at random from a “fair cross-
section of the community.” United States of America, 2012 U.S. Dist. LEXIS
142844 at 19-20. While the Court held it would not provide the source lists, it did
state that the Defendant was entitled to receive “spreadsheets containing the
information he seeks.” Id. at 21.
Given that defendants have the right to be tried by a jury that fairly
represents their community, see id., in this case, the Trial Court did not abuse its
discretion when it ordered the District Clerk to turn over the address data. The
2013 address data will be used by the experts to determine if the number of
African-Americans summoned for jury process in Montgomery County reflects the
African-American population in Montgomery County. Just like in United States
of America v. Kaboni Savage, Robert Merritt, Steven Northington, Kidada Savage,
the defense in this case needs the statistical evidence to accompany the census data
it has gathered and experts it has retained. The information in the District Clerk’s
possession will either confirm or rule out a statistical disparity between the
population of Montgomery County and the entire venire.
31
The Hernandez Court said, “Circumstances or chance may well dictate that
no persons in a certain class will serve on a particular jury or during some
particular period. But it taxes our credulity to say that mere chance resulted in there
being no members of this class among the over six thousand jurors called in the
past 25 years. The result bespeaks discrimination, whether or not it was a
conscious decision on the part of any individual jury commissioner.” Hernandez,
347 U.S. at 482. Davis’s maintains that there is a systematic exclusion of African-
Americans on jury panels in Montgomery County, Texas. Davis is not claiming
that there must be a certain number of African-Americans on each panel, but given
the testimony from the May 21, 2014 hearing and the limited research already
complied by the experts, there is something wrong with the Montgomery County
jury selection process and it needs further investigation and the address data of
jurors summoned for 2013 to be provided. The mandamus conditionally granted
by the Ninth Court of Appeals should be overturned by this Honorable Court.
F. The Constitutional complaint is ripe and valid; therefore, the Trial Court
did not abuse its discretion and mandamus relief should not have issued.
At the hearing on May 21, 2014 regarding Davis’s Motion for Disclosure of
Information, the defense called nine witnesses to support disclosing the addresses
of summoned jurors to the retained experts in an effort to show there is a
demonstrable and noticeable absence of African-Americans in the jury panels of
32
Montgomery County, Texas.34 Of the nine witnesses, seven were attorneys who
practice primarily in Montgomery County, Texas, all with a lengthy history of
practicing criminal law. The sum of their testimony is that it is very rare for people
of African-American decent to appear in the jury pool. 35 Dr. Karl Eschbach
testified that if you take a jury pool of 60 people, only seven percent (7%) of those
jury pools should have no African-American representatives. 36 However, the
testimony of the lawyers who have had substantial criminal practice in
Montgomery County stated it was not uncommon to have no African-American
representatives in about fifty percent (50%) of cases tried in Montgomery
County. 37
Based on the limited information already available to Davis, there appears to
be a systematic exclusion of African-Americans in the jury selection process given
that only 7% of cases should have no African-Americans in the jury pool and the
testimony at the hearing establishes that approximately 50% of jury pools with no
African-Americans represented. Davis has used the correct procedures in this case
because he “need only allege that he is preparing a motion to challenge the jury
selection process in order to ‘avail himself of the right of access to jury selection
34
Appendix A, Reporter’s Record, Vol. 1, pg 3
35
Appendix A, Reporter’s Record, Vol 1., pg. 21-64; 99-105.
36
Appendix A, Reporter’s Record, Vol, 1, pg 80
37
Appendix A, Reporter’s Record, Vol 1., pg. 21-64; 99-105 and pg 80.
33
records’.” United States v. Royal, 100 F.3d 1019, 1025 (1st Cir. 1996).
Furthermore, Davis’s constitutional complaint is recognizable and there was
evidence produced at the hearing showing there seems to be exclusion of a
distinctive group of jurors in Montgomery County. See Duren, 439 U.S. at 364.38
1. Because Davis is not seeking information from questionnaires, his
challenge is not premature.
Davis’s claim for juror information is ripe for review. Davis is not
challenging the array in his case. The challenge is to the jury summoning process
in Montgomery County as a whole. The defense is attacking at the forefront of this
case the problems with the Montgomery County jury panels, instead of waiting for
the jury panel to walk into the court room, a recess be called and then all of this
research commence. Davis is not requesting juror information from
questionnaires; therefore, his challenge is not to the array and is not premature.
2. Evidence produced at the May 21, 2014 hearing demonstrates there is an
apparent exclusion of African-Americans in the jury summonsing process.
38
The difference in the August 4, 2014 Order from the prior order in 2013 is that this time Davis
did produce evidence at the hearing suggesting Montgomery County has a practice that results in
the exclusion of African-Americans and it could be the result of juror summons not going to the
portion of the county where the majority of this race reside. If the addresses alone are given to
the experts, they can lay that information over the 2010 census maps and see if the correct
percentage of jury summons are going to those particular areas. The address data will show
whether African-Americans are being excluded based on their location in the community.
Additionally, the claim is not prospective this time around because the information Davis seeks
is not from jury questionnaires, but rather from the summoning process itself.
34
The Order in contention requires the production of the addresses of all jurors
summoned in 2013.39 The defense made a prima facia showing at the hearing that
there is a noticeable absence of African-Americans in the jury panels of
Montgomery County. 40 Dr. Eschbach testified he believed there was at least a
basis to conduct research to investigate the under-representation of African-
Americans on jury pools in Montgomery County. 41 He further testified he has the
ability to take the address data and compare it to the 2010 census information to
conduct a scientific, statistical analysis to determine if the jurors summoned are
consistent with the representation of African-Americans in Montgomery County. 42
PRAYER FOR RELIEF
Relator respectfully requests this court to issue mandamus relief against the
Ninth Court of Appeals at Beaumont.
39
Appendix A
40
See generally Appendix A, Reporter’s Record
41
Appendix A, Reporter’s Record, Vol. 1, pg 73-74.
42
Appendix A, Reporter’s Record, Vol, 1, pg 74-75.
35
RESPECTFULLY SUBMITTED,
BRASS & McCOTTER
207 SIMONTON
CONROE, TEXAS 77301
rbrass1@yahoo.com
Tel (936) 788-5700
Fax (936) 788-5701
Rick Brass
By:_________________________________
RICK BRASS
Texas Bar No. 02909450
CERTIFICATE OF SERVICE
I hereby certify that true and correct copies of the foregoing instrument were
mailed to the Respondent and counsel for the real parties in interest on the date of
the mailing of the original to the Clerk of this Court.
Rick Brass
________________________________
RICK BRASS
36
VERIFICATION
BEFORE ME the undersigned authority this date personally appeared RICK
BRASS, who after being sworn by me did state upon his oath the following:
I, RICK BRASS, do hereby swear and affirm that the facts stated above are
true and correct based on personal knowledge.
Rick Brass
________________________________
RICK BRASS
28th
SUBSCRIBED AND SWORN TO before me this ______ day of
January
_______________ 2015.
Emily S. Knez Commission Expires 3/20/2015.30
____________________________________
NOTARY PUBLIC – STATE OF TEXAS
37
APPENDICES
Appendix A - Reporter’s Record .................................................2, 3, 4, 6, 23, 33, 35
Appendix B - Order dated 4 August 2014 signed by Judge Case .......3, 9, 10, 17, 18
Appendix C - Jury Selection Plan ............................................................4, 18, 19, 22
Appendix D - Memorandum ..............................................................................12, 13
Appendix E - Motion for Protective Order ..............................................................22
38
Appendix A - Reporter’s Record
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
2
TRIAL COURT CAUSE NO. 13-05-05517-CR
3
THE STATE OF TEXAS, ) IN THE DISTRICT COURT OF
4 )
)
5 )
VS. ) MONTGOMERY COUNTY, TEXAS
6 )
)
7 LEON DAVIS, )
)
8 Defendant. ) 9TH JUDICIAL DISTRICT
9
10 ***********************************************
11 HEARING ON DEFENDANT'S MOTION FOR
DISCLOSURE OF INFORMATION
12
***********************************************
13
14 On the 21st day of May, 2014, the following
15 proceedings came on to be heard in the above-entitled
16 and numbered cause before the Honorable Kelly W.
17 Case, Judge presiding, held in Conroe, Montgomery
18 County, Texas. Proceedings reported by machine
19 shorthand.
20
21
22
23
24
25
2
1 A P P E A R A N C E S
2
3 Mr. Andrew D. James
SBOT NO. 24060997
4 Mr. William J. Delmore
SBOT NO. 05732400
5 MONTGOMERY COUNTY DISTRICT ATTORNEY'S OFFICE
207 West Phillips, Second floor
6 Conroe, Texas 77301
Phone: (936) 539-7800
7 ATTORNEYS FOR THE STATE OF TEXAS
8
Mr. Stuart A. Hughes
9 SBOT NO. 24041151
MONTGOMERY COUNTY ATTORNEY'S OFFICE
10 501 North Thompson, Suite 300
Conroe, Texas 77301
11 Phone: (936) 539-7828
ATTORNEY FOR MONTGOMERY COUNTY
12
13 Mr. Rick Brass
SBOT NO. 02909450
14 BRASS & MCCOTTER
207 Simonton
15 Conroe, Texas 77301
Phone: (936) 788-5700
16 ATTORNEY FOR LEON DAVIS
17
18
19
20
21
22
23
24
25
26
3
1 I N D E X
2 VOLUME 1
3 (HEARING ON DEFENDANT'S MOTION FOR DISCLOSURE OF
4 INFORMATION)
5 Page Vol.
May 21, 2014
6
7 Proceedings 4 1
8
9 STATE'S WITNESSES
(None)
10
COUNTY ATTORNEY'S WITNESSES
11 (None)
12
DEFENDANT'S WITNESSES
13 Direct Cross Voir Dire Vol.
Lydia Clay-Jackson 21 27 1
14 E. Tay Bond 29, 36 34 1
Jerald Crow 38, 46 44 1
15 Patricia Maginnis 47 53 1
Brian Burns 56 1
16 Ray Stokes 64, 66 66 1
Karl Eschbach 68, 89 80, 83 1
17 Max Beauregard 90 1
Gilbert Garcia 99 105 1
18
19
Defendant rests 107 1
20
Both sides close 107 1
21
22 Adjournment 124 1
23 Court Reporter's Certificate 125 1
24 EXHIBIT INDEX
25 (None)
4
1 (Open Court. Defendant and all parties
2 present)
3 THE COURT: Let me -- Mr. Brass?
4 MR. BRASS: Yes, Your Honor.
5 THE COURT: Help me, get me up to speed
6 on where we are. I know I've got your application for
7 deposition. I'm trying to find in there your filings.
8 MR. BRASS: Judge, for the record, let me
9 announce that I'm formally withdrawing and abandoning
10 my request to take anyone's deposition.
11 THE COURT: Okay.
12 MR. BRASS: I'm formally withdrawing and
13 abandoning my motion to change venue.
14 THE COURT: I don't have that.
15 MR. BRASS: It's deep in one of the
16 files. It was an early motion that was part of the
17 basis for the previous ruling and that was overturned
18 by the Court of Appeals.
19 THE COURT: Okay. There is a lot in this
20 file that's tabbed.
21 MR. BRASS: Right.
22 THE COURT: So give me a second and see
23 if I can put my hands on it. Do you know about when
24 you filed that? Okay. I've got it. May 15th, 2013,
25 motion for change of venue.
5
1 MR. BRASS: Yes.
2 THE COURT: So you're withdrawing that at
3 this time?
4 MR. BRASS: Yes, Your Honor. I'm
5 abandoning and withdrawing any requests for any juror
6 questionnaire material the -- it was issues previously
7 about 600 -- I think 600 pieces of information we were
8 requesting. It was E-jury information. I'm abandoning
9 all of that. And today the only thing that I'm going
10 forward on is the pending motion to produce juror
11 address data.
12 THE COURT: Okay. Was that filed back in
13 2013 as well or is that recent?
14 MR. BRASS: It was this year I believe,
15 Judge. Give me a second. On or about November 12th of
16 '13.
17 THE COURT: Motion challenging the jury
18 summoning based on racial bias?
19 MR. BRASS: Yes, just following that
20 motion to produce juror address data.
21 THE COURT: I have it standing on its
22 own. All right. Just your application for your
23 deposition of witnesses is also been abandoned and
24 withdrawn?
25 MR. BRASS: Yes, Judge. The motion to
6
1 produce juror -- I'm sorry -- was filed March 4th,
2 2014.
3 THE COURT: I don't have my hands on that
4 one yet. Let me find it. Motion for juror address
5 data?
6 MR. BRASS: Yes, Your Honor.
7 THE COURT: Okay. Got it. Okay. So
8 that's the only motion you're moving forward on today?
9 MR. BRASS: Yes. I will also say for the
10 record that the information that I'm requesting in this
11 motion is to support and enable me to proceed on the
12 underlying motion which is challenging the jury
13 summoning process of Montgomery County based on racial
14 bias. I'm asking for the data so that I can support
15 the basis of that motion. But the purpose of the
16 hearing today in terms of what I've noticed the other
17 side is simply the production of the address data.
18 THE COURT: Okay. Who's handling the
19 case on the other side?
20 MR. HUGHES: Your Honor, Stuart Hughes
21 from the County Attorney's Office on behalf of
22 Montgomery County District Clerk's Office, specifically
23 Brenda Shank and Ed Stokes were subpoenaed to be here
24 today. I'll be speaking on their behalf. I have filed
25 something in the opposition to the motion to produce
7
1 summoned jury address data.
2 MR. JAMES: Judge --
3 THE COURT: What did you file,
4 Mr. Hughes?
5 MR. HUGHES: I filed on April 16th, 2014
6 District Clerk's response to Leon Davis' application
7 for deposition which he just withdrew. But on April
8 17th, we filed District Clerk's Motion for Protective
9 Order, Your Honor, regarding that motion to produce the
10 jury address data.
11 THE COURT: Okay. I've got a protective
12 order. All right. Anything else you filed,
13 Mr. Hughes?
14 MR. HUGHES: That's it, Your Honor.
15 THE COURT: Okay. And then next --
16 MR. JAMES: Judge, Mr. Delmore and myself
17 will be handling things on behalf of the District
18 Attorney's Office. I know we filed a few responses as
19 well. May 16th we filed State's response to Defense's
20 motion to produce juror addressed data.
21 THE COURT: Okay. May 16th.
22 MR. JAMES: And then we filed, I believe,
23 something else prior in regards to Mr. Brass's motion
24 that he's just withdrawn. So --
25 THE COURT: Well, that kind of makes it
8
1 moot.
2 MR. DELMORE: Judge, Mr. James is going
3 to do most of our advocacy today. But can I just ask
4 one quick question of Mr. Brass?
5 THE COURT: Sure.
6 MR. DELMORE: Rick, you say you're not
7 questioning any information from the juror
8 questionnaires. You just want address data. But the
9 address data you want is linked to the race of the
10 prospective jurors?
11 MR. BRASS: No. That's incorrect.
12 MR. DELMORE: You don't care what the
13 race is?
14 MR. BRASS: Correct, I do not. That's
15 not what I'm asking for.
16 MR. DELMORE: All right. Because I was
17 thinking you needed the questionnaires to get the
18 racial data. All right.
19 THE COURT: So anything else to clear up?
20 MR. BRASS: If there is some confusion on
21 their part as to what my premises is, I can cover that
22 in a very brief opening statement.
23 THE COURT: First I want to make sure
24 that I've got the motions and the responses to the
25 motions lined up so I know what the arguments are, and
9
1 then I'll be glad to hear any testimony and anything
2 else. But I'm trying to get a handle on -- this file
3 is getting a little big, and there is a lot of loose
4 filings that have been done in the last couple of
5 months. So I want to make sure I know exactly what I'm
6 addressing today. I've got your motion to produce
7 juror address data. I've got State's response to
8 defendant's motion to produce juror address data. And
9 then I've got a Montgomery County District Clerk,
10 Barbara Adamick's motion for protective order. Is that
11 all I'm addressing today?
12 MR. BRASS: Judge, I was distracted for a
13 second.
14 THE COURT: Don't get distracted,
15 Mr. Brass. I'm trying to line all this up. Motion to
16 produce juror address data, Mr. Brass. State's
17 response to defendant's motion to produce juror address
18 data, Mr. James; and Montgomery County District Clerk,
19 Barbara Adamick's motion for protective order,
20 Mr. Hughes; is that it?
21 MR. BRASS: As far as we understand, yes,
22 Judge.
23 THE COURT: Okay. All right. Mr. Brass,
24 your motion is pretty simple. You want to go ahead and
25 tell me what you're arguing for?
10
1 MR. BRASS: Judge, we believe that there
2 is a demonstrable and apparent disproportionate number
3 of citizens of African-American decent on our jury
4 panels. We do not know why that is occurring. We have
5 come up with a hypothesis that the reason black members
6 are not showing up on the jury panel is because there
7 is a defect in the way jurors are summoned. In order
8 to find out if that hypothesis is correct, if it can be
9 demonstrated scientifically, we are asking for the
10 district clerk to produce electronically the data of
11 the summoned jurors for the year 2013. It is our
12 intention -- we have experts here to testify about
13 this -- that with that data we can overlay that data on
14 to the 2010 census data, and the scientists will be
15 able to discern whether the jury summoning process is
16 racially neutral. And the only way to do that is with
17 this electronic data. We are drawing a distinction
18 between confidential juror information and electronic
19 summoned juror address data. We believe that the
20 clerks that are here to testify will testify that the
21 jurors are summoned through an electronic data system,
22 perhaps through an outside vendor and that jurors are
23 summoned through the mail; and therefore, the data that
24 we're seeking exists. We're not asking anybody to
25 create it. We are simply asking them to share it with
11
1 us. We believe they have it. We believe that the laws
2 of our state and our constitution and the case law
3 support that we should be able to get it if we ask for
4 it.
5 THE COURT: I have a feeling I'm missing
6 a key element of what you're asking for because right
7 now I don't see a distinction between what you're
8 asking for now and what you asked for a year ago that
9 was shot down by the Court of Appeals.
10 MR. BRASS: We are not asking for any
11 information that is collected as part of the jury
12 selection process.
13 THE COURT: Okay.
14 MR. BRASS: That's what they focused on.
15 The confidential nature of information that the
16 prosecutor, the Court, and clerk collect as part of the
17 jury selection process. We are focused on the jury
18 summoning process that the federal case law supports
19 that a defendant is guaranteed the right to have his
20 case tried in a system where the jury summoning process
21 is racially neutral. If there is a class of citizens
22 being systemically excluded for any reason, then that
23 is illegal. The only way for us to find the answer to
24 the question, "Is that happening here in Montgomery
25 County" is to obtain this electronic address data and
12
1 apply it to the population data that our experts
2 possess. So I think it's a very significant,
3 important, and demonstrable distinction between what I
4 had asked for before that the Court of Appeals didn't
5 agree with. We've modified it, we backed up, we've
6 abandoned the motions on the record that I told you we
7 abandoned. And we are taking what we believe is a more
8 appropriate approach to tackle the problem that we
9 believe exists. And we believe that we're within the
10 statutory limitations for obtaining the data.
11 Does that clarify, Judge?
12 THE COURT: It does, yes. Thank you.
13 Just to keep it in order, Mr. Hughes, do you want to
14 respond to that?
15 MR. HUGHES: Yes, Your Honor, I do.
16 THE COURT: Go ahead.
17 MR. HUGHES: Our response is simple, Your
18 Honor. I'm not sure the authority that Mr. Brass is
19 relying upon, but this does sound like the exact same
20 thing that was tried before. Specifically Texas
21 Government Code 62.0132 regards jury summons
22 questionnaires, and it is specifically about exactly
23 what Mr. Brass is seeking to obtain: Jury address
24 information of summoned jurors. It specifically says
25 that a jury summons includes a questionnaire. The
13
1 questionnaire requires, among other things, residence,
2 address, mailing address. And it further says that
3 that is confidential. That information has limited
4 disclosure to the court personnel, litigants, or
5 litigant's attorney in a cause of action in which the
6 respondent to the questionnaire is a potential juror.
7 So based on that statute, I believe it applies to
8 exactly what Mr. Brass is asking. The jury address
9 information is confidential. This is not regarding the
10 jury selection process that Mr. Brass referred to. I
11 believe that was the Code of Criminal Procedure 35.29,
12 I believe. Something like that. That actually says,
13 "Jury selection process." This statute does not say
14 that. It talks specifically about information
15 contained within the questionnaire part of the summons
16 for jurors is confidential unless the cause of action
17 is pending before that lawyer -- and here it's
18 premature. The trial hasn't been called as far as I
19 know. There's not a jury impaneled. So we are relying
20 our argument on that, that his motion for this
21 information should be denied.
22 THE COURT: What section were you quoting
23 in the Government Code? 62 what?
24 MR. HUGHES: 62.0132, Your Honor.
25 THE COURT: Okay.
14
1 MR. HUGHES: In addition, Your Honor, the
2 county would like to submit and offer the evidence the
3 Montgomery County electronic jury selection plan and
4 give it to Mr. Brass just so the Court and everybody is
5 aware of the policy the county has in summoning jurors.
6 THE COURT: Okay.
7 MR. HUGHES: May I approach and offer it
8 at this time?
9 THE COURT: Yes.
10 MR. HUGHES: Any objection, Mr. Brass?
11 MR. BRASS: Judge, this has been going on
12 for a year now. So today is the first day that's being
13 offered to me? It's certainly not timely in the sense
14 that I can absorb it in few short moments. And -- but,
15 I mean, he can offer anything he wants. That's fine.
16 But in terms of --
17 MR. HUGHES: This is what Mr. Brass
18 wants. I'm trying to give it to him, Your Honor. It'S
19 public record. He has opportunity to get it for
20 himself.
21 MR. BRASS: What I want is address data,
22 electronic address data, not what the county policy is.
23 I'm very interested in knowing what the county policy
24 is. But, again, I think it's a little untimely on the
25 day of our hearing to present it.
15
1 THE COURT: All right. Distribute a copy
2 to Mr. Brass and bring one to me. Mr. James, you want
3 to make an opening?
4 MR. JAMES: Very briefly, Judge.
5 Essentially we would object to having this hearing on
6 the grounds of, one, that this issue is not yet ripe.
7 THE COURT: Well, I'm not going to listen
8 to that. We're having the hearing. So what's next?
9 MR. JAMES: The defense is basically
10 still attempting a fishing expedition on this, Judge.
11 What Mr. Brass is asking for now is piece meal of what
12 he asked for initially. He is asking for juror address
13 data. I'm sure we'll be back here later on, on the
14 things he asked for later already.
15 MR. BRASS: May I respond, Judge?
16 THE COURT: Well, it's opening. You
17 don't need to respond. Let me review some things real
18 quick. I'm -- Mr. Brass, I'm trying to get my head
19 around what you're telling me is different. I'm just --
20 I'm not there. It seems like what you're asking for --
21 let me see if I can put it into words, and you can
22 understand my difficulty. I understand you're not
23 pulling the addresses off the questionnaire. That's
24 not what you're asking to be done. Where are you
25 asking -- where are these addresses? Where are they
16
1 going to come from?
2 MR. BRASS: Part of the reason that
3 previously I had filed the motion to take a deposition,
4 which they so vehemently opposed, was to discern in
5 what form the information that I'm seeking lives. But
6 I decided since they were so opposed to that, that in a
7 hearing such as today we could pursue -- you, the
8 Court, both sides, could discern that information from
9 the witness stand and a deposition was not necessary.
10 I believe that in a computer there is electronic data
11 that is furnished to an outside vendor for the purpose
12 of summoning jurors. So I believe the District Clerk's
13 Office delivers to an outside vendor a list of names
14 and addresses. And I believe that those people who
15 understand computers better than I can extract from
16 that data that already exists simply the list of
17 addresses. My experts will testify --
18 THE COURT: So to kind of put this in
19 terms of a judge's -- a layman's understanding, there
20 is a body of data that contains the addresses of
21 everybody that could potentially -- no?
22 MR. BRASS: Not potentially. Were
23 summoned.
24 THE COURT: Who were summoned?
25 MR. BRASS: Who were summoned. Again, I
17
1 predict that the testimony from the clerks that were
2 present will say that they may be able to shed some
3 light on how that list comes into existence. I'm
4 thinking it comes from driver's license and voter
5 registration. Or I've heard that is where it comes
6 from. But nevertheless at some point in time somebody
7 mailed to a large number of citizens of Montgomery
8 County a jury summons. And what I want to do is be
9 able to take that address data -- my demographers will
10 tell you that they can put it into a software program
11 that will pinpoint all those addresses on a demographic
12 chart and overlay that to the census data of where the
13 black citizens live. And they will scientifically be
14 able to tell this Court and the courts that review what
15 happens here today and in the future whether those jury
16 summons are being sent out in a racially neutral
17 manner. We know -- and the six lawyers that I
18 subpoenaed today anticipate to testify that there is a
19 demonstrable and obvious disproportionate number of
20 black Americans on our jury panels. The question is
21 why. If our system is not racially neutral, then there
22 is something wrong with it and it needs to be fixed.
23 This defendant and all defendants have a right to know
24 that. The only way that they can find that out is by
25 having the keepers of this information give it to the
18
1 experts who can analyze it to make the determination as
2 to whether our system is racially neutral. There may
3 very well be a different explanation for why our juries
4 are obviously unrepresentative of our population. It
5 may be sociological reasons. And if so, then I would
6 be the first to admit that Montgomery County's jury
7 summoning system is not effective or legal. But if
8 overlaying the data we find out that the summons are
9 not going to the black part of our -- the part of our
10 community where the black residents live, then we have
11 a racially-bias jury summoning system. And according
12 to the case law, that is illegal. The only way a
13 defendant can find this out is if the keepers of the
14 information share it with us in a careful confidential,
15 delegate manner. I'm going to propose in our hearing
16 that the expert demographers sign confidentiality
17 agreements to protect this data and respect it, give it
18 the due respect that it deserves, and conduct this
19 analysis professionally, scientifically. But if this
20 Court and the reviewing courts and these government
21 attorneys preclude defendants from accessing the data
22 that they have, then we can't answer the question as to
23 why our juries are unrepresentative of our population
24 racially. And I submit to you, as we all know, that a
25 juror questionnaire comes from when a panel is seated
19
1 in a particular court and hands in this government code
2 where we have these rules about only the judge of that
3 particular court can give that information to an
4 attorney, party, the media upon showing of good cause.
5 It does not apply because that's not the data that I'm
6 asking for. I'm -- the data that I'm asking for is
7 before that happens. There is no court that these
8 jurors belong to. This is the data that the county
9 uses to summon the jurors. If we are summoning the
10 appropriate number of black persons to jury duty, then
11 my motion challenging the jury summoning process is
12 without basis. But until we get data and do the
13 analysis, we just don't know that. I respect the
14 prosecutor's anticipating what I may do next, but I
15 submit to you that that is an assumption without basis.
16 They don't know what I'm going to do next. And I would
17 commit to this Court that I'm not going to do anything
18 that is not consistent with the authority that a
19 defense attorney is bestowed in defending a defendant
20 zealously.
21 THE COURT: Who is your first witness?
22 MR. BRASS: Sir?
23 THE COURT: Who is your first witness?
24 MR. BRASS: I call Lydia Clay-Jackson.
25 THE COURT: Already have everybody sworn
20
1 in? How are we going to do this?
2 MR. BRASS: My intention is six lawyers
3 first, then the two clerks and then the experts.
4 THE COURT: Everybody that's going to
5 testify, raise your right hand.
6 (Witnesses present sworn)
7 THE COURT: Mr. Brass, call your first
8 witness.
9 MR. JAMES: Judge, we ask that the Rule
10 be invoked.
11 THE COURT: The Rule is invoked. For
12 those of you that are non-lawyers, you cannot discuss
13 the case. You cannot discuss any testimony you may
14 have about the case with any of the other witnesses.
15 You can't even do it with other witnesses if other
16 lawyers are around. You can, however, discuss the case
17 and your testimony with the lawyers themselves. So
18 with that, I'm going to ask everyone to be excused,
19 Mr. Brass, except for Ms. Clay-Jackson?
20 MR. BRASS: Yes, sir and our experts,
21 Judge. They qualify for exclusion.
22 THE COURT: They are excluded from the
23 Rule. So, Ms. Clay-Jackson, if you would come up and
24 have a seat.
25 Whenever you are ready.
21
1 LYDIA CLAY-JACKSON,
2 having been first duly sworn, testified as follows:
3 DIRECT EXAMINATION
4 BY MR. BRASS:
5 Q. State your name for the record, please.
6 A. Lydia Clay-Jackson.
7 Q. And, Ms. Jackson, how are you employed?
8 A. Clay-Jackson.
9 Q. I'm sorry?
10 A. I'm a lawyer.
11 Q. How long have you been a lawyer?
12 A. Since 1985.
13 Q. Tell the Court where -- geographically where
14 your primary practice is.
15 A. My primary practice is here in Montgomery
16 County. I practice all throughout the state. It's
17 about four blocks from here. And my entire career my
18 home office has always been in Montgomery County.
19 Q. Do you hold any positions with bar associations
20 or professional organizations of note?
21 A. I am former president of the Texas Criminal
22 Defense Lawyers Association. I am chair elect of the
23 State Bar Committee for Criminal Justice. I am former
24 chair of Lone Star Legal Aid Society. I'm board
25 certified in criminal law by the TDLS.
22
1 Q. Ms. Clay-Jackson, do you have experience trying
2 jury trials in Montgomery County?
3 A. Yes, I do.
4 Q. I know this is a difficult question, but could
5 you just estimate how many jury trials -- criminal jury
6 trials you've tried in Montgomery County?
7 A. I have tried criminal jury trials in Montgomery
8 County, both as a criminal defense lawyer and as a
9 prosecutor. I've tried probably in excess of 57
10 trials.
11 Q. Okay. We didn't talk about your experience
12 other than as a defense attorney. Tell us about having
13 been a prosecutor.
14 A. I was a prosecutor for 13 months in the County
15 Attorney's office when it had jurisdiction over all
16 misdemeanor cases in Montgomery County.
17 Q. And you tried jury trials in your capacity as
18 an Assistant County Attorney?
19 A. I did.
20 Q. In the trials that you've tried in Montgomery
21 County, have you had occasion to observe the presence
22 of Americans -- citizens of African-American decent on
23 the jury panels?
24 A. Infrequent, yes.
25 Q. And you are a person of African-American
23
1 descent, correct?
2 A. Yes.
3 Q. And have you a noticed a pattern during your
4 career of the numbers of citizens of African-American
5 decent on the jury panels on the cases you have tried?
6 A. If it can be described as a pattern --
7 Q. Well, let me rephrase. In your own words,
8 describe your observation of the presence of citizens
9 of African-American decent on our jury panels.
10 A. With the trials that I have participated in,
11 the number of black Americans on the jury panel
12 probably have numbered about 15.
13 Q. That's 15 out of?
14 A. About 50 to 70 cases.
15 Q. Have there been any panels where there were no
16 citizens of African-American decent on the panel?
17 A. Oh, yes. Sorry. Go ahead.
18 Q. How would you characterize quantitatively the
19 number of panels that you have observed no citizens of
20 African-American decent?
21 A. The vast majority. More than 80 percent.
22 Q. More than 80 percent of the trials that you've
23 tried, the panels contained no citizens of
24 African-American decent?
25 A. That's correct. That's since 1985.
24
1 Q. Go ahead.
2 A. The most African-Americans on any panel that I
3 can recall -- since I received the subpoena I sort of
4 thought about that -- was four out of --
5 Q. Out of a panel of how many?
6 A. That was a felony trial, so it was a panel of
7 probably 52, something like that.
8 Q. Okay. If you -- I mean, just based on the math
9 that you -- if you apply the math to the numbers you've
10 already testified to -- well, let me withdraw that
11 question. If you would assume that there is 4.3
12 percent of the population, adult population of
13 Montgomery County consists of black Americans -- I've
14 done a little chart with the math as a visual aid, not
15 as evidence. If you use the percentage of 4.3 --
16 MR. JAMES: I'm sorry. I'm going -- I'm
17 objecting. He says this isn't evidence, just a visual
18 aid; yet, he's given it to the Court as if it is
19 evidence. If it's evidence, there is no testimony to
20 support these numbers.
21 MR. BRASS: I'm not offering it as
22 evidence. I gave it to the Court so the Court can see
23 it just as if I had published it on a overhead
24 projector.
25 THE COURT: I think math is pretty much
25
1 common sense. So, I mean, it's just numbers on what --
2 is that what you've been given? Numbers?
3 MR. JAMES: Yes.
4 THE COURT: Okay. It's just numbers. Go
5 ahead, Mr. Brass.
6 Q. (BY MR. BRASS) So you can see from this visual
7 aid, Ms. Clay-Jackson, that on a panel of 60 if you
8 apply the percentage and 70, 80, 90, 100, in your
9 experience are these the types of numbers of potential
10 jurors that are summoned by the courts for trials?
11 A. For felony trials. Are you asking me if 60 is
12 a general number that we have for felony trials or 70
13 depending upon the type of trial?
14 Q. Correct.
15 A. Yes, generally.
16 Q. How many for misdemeanors?
17 A. Probably no more than 40.
18 Q. Okay.
19 A. Depending on what type of case it is.
20 Q. And, of course, this would be -- these numbers
21 would be averages obviously. So if we start with a
22 premises that there is an under representation of black
23 Americans on our jury panels relative to our population
24 and if you assume that 4.3 percent are of our adult
25 populations is black, in your experience on an average
26
1 of all 60 person panels has there been an average of
2 2.58 people of African-American decent on the panel?
3 A. Not in my experience.
4 Q. Is the -- and obviously you can see the numbers
5 increase as the number of potential jurors increases.
6 In all categories of numbers of jurors on a panel has
7 the indicated representative number fallen short on our
8 panels?
9 A. What's represented by this example?
10 Q. Yes.
11 A. The only -- I've tried two capital cases in
12 Montgomery County where the 100 jurors would even come
13 into play. No, I didn't question four black Americans
14 on that panel.
15 Q. Out of those 200 jurors, were there any
16 citizens of African-American decent?
17 A. Not that I can recall, no.
18 MR. BRASS: Pass the witness, Judge.
19 THE COURT: Let's start with keeping it
20 in order. Let Mr. Hughes go first, and then when he is
21 done it will go over to you, Mr. James. Go ahead,
22 Mr. Hughes.
23 MR. HUGHES: No questions, Judge.
24 THE COURT: Mr. James?
25 MR. JAMES: May I proceed, Judge?
27
1 THE COURT: Yes.
2 CROSS-EXAMINATION
3 BY MR. JAMES:
4 Q. Ms. Clay-Jackson, a lot of the numbers that you
5 told us you're doing this to the best of your memory,
6 right?
7 A. That's true.
8 Q. You don't have any sort of statistics that
9 you've kept over the years, anything like that?
10 A. Not that I've pulled up for this, no.
11 Q. In fact, you're having to sit there during your
12 direct testimony and try to think back to the best of
13 your knowledge about whether there may or may not have
14 been a certain number of African-Americans on the
15 panel?
16 A. That's correct.
17 Q. You're saying to the best of your knowledge you
18 don't remember that there was or wasn't, you can't tell
19 us one way or the other?
20 A. Well, on generally -- the general panels that
21 we just talked about?
22 Q. I'm talking any specific panel, you can't tell
23 us one way or the other, can you?
24 A. I probably could go back and look at my files.
25 I could.
28
1 Q. Of course, you didn't do any of that before
2 preparing to testify today?
3 A. Just cursory, sir.
4 Q. Of this 4.3 number that Mr. Brass gave to you,
5 you, of course, have no idea about how many people from
6 that percentage are eligible to serve on juries, right?
7 A. That's correct.
8 Q. So this 4.3 number may not be, in fact, the
9 number of African-Americans are eligible to serve?
10 A. That's correct.
11 MR. JAMES: Pass the witness, Judge.
12 MR. BRASS: No further questions, Judge.
13 THE COURT: May she be excused?
14 MR. BRASS: As far a we're concerned,
15 yes.
16 MR. JAMES: No objection from the State.
17 THE COURT: Thank you, Ms. Clay-Jackson.
18 Next witness, Mr. Brass?
19 MR. BRASS: I call Tay Bond.
20 THE COURT: Tay Bond.
21 MR. DELMORE: Can I be excused to use the
22 restroom?
23 THE COURT: Do we need to stop?
24 MR. DELMORE: No. Mr. James will be
25 present.
29
1 THE COURT: Okay. Here is Mr. Bond in
2 his blue jeans and tie.
3 THE WITNESS: And tie on, Judge. I have
4 previously been sworn.
5 THE COURT: All right. Get comfortable.
6 And then whenever you are ready, Mr. Brass.
7 MR. BRASS: Thank you, Your Honor.
8 E. TAY BOND,
9 having been first duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MR. BRASS:
12 Q. State your name for the record.
13 A. Tay Bond.
14 Q. Mr. Bond, how are you employed?
15 A. I'm employed by myself.
16 Q. And what do you do for a living?
17 A. I do criminal defense work.
18 Q. So you are an attorney?
19 A. Yes, I am.
20 Q. And how long have you been an attorney?
21 A. 1998.
22 Q. And in these years that you've been an attorney
23 in what roles have you played in our criminal justice
24 system?
25 A. I was in private practice initially. I have
30
1 been Assistant County Attorney, and I've been an
2 Assistant District Attorney. And I've been partners in
3 a firm; and I now run my own show.
4 Q. How many years were you a government lawyer?
5 A. Probably around two.
6 Q. Total?
7 A. Total.
8 Q. Okay. Have you held any note-worthy positions
9 in bar associations or any other certifications that
10 would impress us?
11 A. I don't know if it would impress you,
12 Mr. Brass. But I have been the president of the
13 Criminal Defense Bar here in Montgomery County. I've
14 been the president of the Montgomery County Bar also.
15 Q. In your career -- oh, and the geographical
16 location -- your primary geographical location of your
17 practice, where is that?
18 A. It is primarily Montgomery County, Texas.
19 Q. Have you had occasion to try jury trials in
20 Montgomery County, Texas?
21 A. Yes.
22 Q. On few or many occasions?
23 A. I would say many. I've tried probably -- since
24 December I've done six jury trials which is probably
25 more than any other criminal defense attorney or
31
1 prosecutor in this county.
2 Q. Six since December of 2013?
3 A. Of '13, yes.
4 Q. I know this is a very difficult question, but
5 could you just estimate the number of jury trials
6 you've tried in this county during your career both as
7 a private lawyer and a government lawyer?
8 A. Conservatively I would say in excess of 50
9 easily.
10 Q. 50?
11 A. In excess of 50.
12 Q. In excess. Have you -- you understand that the
13 issue for us today has to do with the representation on
14 our jury panels of citizens of African-Americans
15 decent?
16 A. Yes, sir.
17 Q. Have you had the opportunity to observe the
18 presence of African-American citizens on the jury
19 panels of the cases that you've tried?
20 A. I have from the Justice of the Peace level
21 through the county court level, through felony court,
22 absolutely, as a prosecutor and a defense attorney.
23 Q. In your own words, how would you characterize
24 the presence of citizens of African-American decent on
25 our jury panels in terms of numbers?
32
1 A. I would best answer that by example of a case I
2 tried recently in this court where I was representing
3 an African-American male. We had approximately 80
4 venire persons, and I believe there was one or none of
5 African-American decent. The only African-American in
6 the courtroom period was my client.
7 Q. Is that a typical scenario in your experience
8 for the trials you have tried?
9 A. I would say it is certainly common to have one
10 or two even on a felony venire panel of
11 African-American decent or none.
12 Q. Can you estimate the percentage of jury panels
13 in cases that you a have tried where there were none?
14 A. I would have a hard time coming up with a
15 percentage, but I can tell you that it would not be
16 surprising at all based on my experience to have a full
17 felony panel and they are not to be any
18 African-Americans on it at all. But percentage-wise I
19 don't think I can give you that.
20 Q. Okay. If I were to tell you that the experts
21 will later testify that 4.3 percent of our adult
22 population of Montgomery County are citizens of
23 African-American decent, there is a visual aid before
24 you that just simply does the math in terms of panels
25 of 60, 70, 80, 90, and 100 applying that percentage and
33
1 how many jurors it would take to be representative of
2 that population. Do you see that visual aid?
3 A. Yes, I do see it.
4 Q. So we would be talking or expressing that in
5 terms of an average. So if you had, say, two panels of
6 60 and -- so two times 2.58 is 5 thereabouts -- 5.16.
7 You can't have a .16 of a person. But, say, 5, round
8 it off, in your opinion in two panels of 60 on the
9 average are there less than five citizens of
10 African-American decent in your experience?
11 A. Absolutely. Absolutely. I've never had -- I
12 don't think I've ever had three African-Americans on a
13 panel of 60 or 70. Maybe once. Maybe once.
14 Q. In all of the trials you have tried?
15 A. To my recollection, absolutely. I don't think
16 I've ever had three on a panel.
17 Q. Have you been aware personally of an obvious
18 absence or under representation of black Americans on
19 our jury panels in this county?
20 A. That would be my opinion, and it has certainly
21 been the opinion of African-American clients that I've
22 represented.
23 MR. BRASS: I'll pass the witness, Judge.
24 THE COURT: Mr. Hughes?
25 MR. HUGHES: No, Your Honor.
34
1 MR. JAMES: May I proceed, Judge?
2 THE COURT: Yes.
3 CROSS-EXAMINATION
4 BY MR. JAMES:
5 Q. Mr. Bond, you don't know the -- you don't have
6 any statistics for the number of cases you have tried
7 and the number of African-Americans on every single one
8 of those jury panels, do you?
9 A. No, sir.
10 Q. Okay. You're just going based off your best
11 rough estimate at this point; is that fair to say?
12 A. That is correct.
13 Q. And the number -- this 4.3 number that
14 Mr. Brass has given to you, you don't know where that
15 number comes from obviously, right? He is asking you
16 to assume what his experts will testify to later?
17 A. That is correct.
18 Q. And you have no idea whether that 4.3 percent
19 of African-Americans include those that are registered
20 to vote in this county, do you?
21 A. No, I do not.
22 Q. You don't know whether that number is less and
23 how much less from the hypothetical 4.3 percent that
24 the defense is talking about?
25 A. No.
35
1 Q. Okay. Mr. Bond, you testified that you picked
2 a jury in this court with a panel of approximately 80
3 people?
4 A. Well, I think we attempted to pick one where I
5 was representing an African-American. I was
6 successful -- because there was a learned juris on the
7 bench -- in having the panel stricken because it did
8 not meet the constitutional standards for my client to
9 have a jury of his peers.
10 Q. So another panel was brought in at that point
11 and y'all picked a jury from that panel?
12 A. That is correct.
13 Q. Are you aware a jury panel in this particular
14 court from last late April, early May of 150 people
15 that had six African-Americans on that panel?
16 A. No.
17 Q. Okay. And just by going off of Mr. --
18 A. I don't think that was my case. I don't think
19 we had 100.
20 Q. That's why I'm asking if you you're aware.
21 Going off Mr. Brass's little math here, just doing the
22 math there, 4.3 percent of 150 is 6.45. So as you
23 understand --
24 A. I don't do math on the record.
25 Q. Mr. Bond, I can write it out if need be. You
36
1 understand you can't have part of a person, right?
2 A. I agree.
3 Q. So six African-Americans on a panel of 150
4 would be consistent with Mr. Brass's own numbers,
5 right?
6 A. I know you're an officer of the court and
7 you're not going to lie to me. If that's correct, then
8 that's correct.
9 Q. All right.
10 A. I need a calculator.
11 MR. JAMES: I'll pass the witness, Judge.
12 REDIRECT EXAMINATION
13 BY MR. BRASS:
14 Q. Mr. Bond, you're not saying that there is never
15 any black people on our panels; is that correct?
16 A. No, I'm definitely not saying that. I have
17 seen several, but they are unique.
18 Q. Okay. So if it was a panel of 150 with six
19 citizens of African-American decent, we're not saying
20 that that never -- you're not saying that never
21 happens, are you?
22 A. If I was picking a panel and the venire panel
23 consisted of 150 persons with six of them being black,
24 I would feel like I won the lottery in order to do my
25 jury selection.
37
1 Q. Are you saying that because that's a rare
2 occasion?
3 A. I think it would be extremely rare.
4 MR. BRASS: That's all, Judge.
5 THE COURT: Mr. Hughes?
6 MR. HUGHES: No, Your Honor.
7 THE COURT: Mr. James?
8 MR. JAMES: Nothing further for him,
9 Judge.
10 THE COURT: May he be excused?
11 MR. BRASS: Yes, Your Honor.
12 MR. JAMES: No objection.
13 THE COURT: Thank you, Mr. Bond.
14 THE WITNESS: May I be released from the
15 subpoena, Your Honor?
16 THE COURT: Yes. Go back to work. Next
17 witness?
18 MR. BRASS: Jerald Crow, Judge.
19 THE COURT: Jerald crow. I prefer him to
20 be called Colonel, so we'll stick with that. He's
21 earned it.
22 THE WITNESS: Sit here, Your Honor?
23 THE COURT: Yes, sir. Thank you.
24 Whenever you are ready, Mr. Brass.
25 MR. BRASS: Thank you, Your Honor.
38
1 JERALD CROW,
2 having been first duly sworn, testified as follows:
3 DIRECT EXAMINATION
4 BY MR. BRASS:
5 Q. State your name for the record, please.
6 A. Jerald D. Crow.
7 Q. And, Mr. Crow, do you also hold the title of
8 Colonel?
9 A. I do.
10 Q. And we've been instructed by the Court to refer
11 to you as Colonel Crow.
12 A. Thank you, Your Honor.
13 Q. And so Colonel Crow, how are you employed?
14 A. I'm self-employed as a lawyer.
15 Q. How long have you been a lawyer?
16 A. Since May 12th of 1966.
17 Q. 48 years?
18 A. 47, 48 years, yes.
19 Q. Okay. Where has been your primary geographical
20 area of practice?
21 A. Since 1977, it's been in Conroe, Texas.
22 Q. Have you held or do you hold any positions in
23 bar associations, professional organizations,
24 certifications that would impress us?
25 A. Well, I belong to numerous professional
39
1 organizations over the years. At the present, I'm -- I
2 only belong to the Texas Bar and Montgomery County Bar
3 Association, Montgomery County Criminal Defense Lawyers
4 Association. I have been president of the Montgomery
5 County Bar in the past as well as held numerous other
6 positions, administration of the bar and business. I
7 served as a military judge. I served as a municipal
8 judge in Panorama Village, Texas for about a year, sir.
9 Q. You were in the marines?
10 A. Yes, 21 years.
11 Q. Since 1977, have you been trying jury cases in
12 Montgomery County, Texas?
13 A. Yes, I have.
14 Q. And I know this is very difficult question, but
15 could you estimate for us, the Court, and the other
16 courts that will come in the future how many jury
17 trials in this county you have tried?
18 A. That's probably not possible for me to give you
19 an accurate estimate.
20 Q. Well, it's an estimate.
21 A. There are different kinds of jury trials.
22 There are murder trials, capital murder trials,
23 misdemeanors, and felony-level cases. I would say on
24 the average, not counting the capital cases, I probably
25 tried four a year would be my best estimate. And that
40
1 would be over 37 years.
2 Q. And you said not counting the capital cases?
3 A. That's correct. Picking a jury on a capital
4 case where the death penalty is involved is a much
5 different proposition.
6 Q. Okay. How many capital cases have you a tried
7 in your career in Montgomery County?
8 A. From beginning to end for death probably 12 or
9 13.
10 Q. Well, let me clarify that. I'm concerned about
11 your -- the focus of our inquiry is the observation of
12 the make up of jury panels that you had an opportunity
13 to observe in your career. So even if a trial didn't
14 go to verdict by jury, if you impaneled -- I'm trying
15 to find out just ballpark estimate how many -- the
16 magnitude of the numbers of jury panels you've had an
17 opportunity to observe.
18 A. There again, it's purely an estimate on my
19 part. As I said, personally trying cases as an
20 attorney from picking the jury to the verdict I would
21 estimate about four per year. However, it is customary
22 in our community for other attorneys to assist other
23 attorneys in picking juries even though they are not a
24 part of the jury process. And to estimate that, maybe
25 once a month.
41
1 Q. For all those years?
2 A. For all those years.
3 Q. Wow. So I did the math and four times 37 is
4 148 plus 12 capitals conservatively is 160. And then
5 you're talking about another 12 per year that you
6 assisted other lawyers?
7 A. That's correct. That's my best estimate.
8 Q. At the very most conservative approach to your
9 estimating we're somewhere around the 250 trial level,
10 does that sound right?
11 A. I accept your figure, sir.
12 Q. Okay. I want to tap into your memory and
13 your -- of your observation of the racial make up of
14 those literally hundreds of jury panels in Montgomery
15 County, and particularly the numbers of citizens of
16 African-American decent present on those jury panels.
17 A. I don't think I can give you an accurate number
18 on that, but this might -- my memory tells me that most
19 African-Americans I've seen on many jury panels in
20 which I've participated, either as picking the jury or
21 helping someone else, would be three or four. I want
22 to clarify that a little bit because there was a time
23 period in there, say, from '77 until Montgomery County
24 took over, there was much less.
25 Q. Okay. Less than three or four?
42
1 A. Yes.
2 Q. As a maximum?
3 A. As a maximum.
4 Q. Right. So let's dissect that a bit. Were
5 there many -- few or many jury panels that had no
6 African-Americans on there -- in there membership?
7 A. There were few.
8 Q. Typically, as best as you can recall -- well
9 let's just say this. You said three or four at the
10 most. Is that a typical situation that there would be
11 three or four?
12 A. That is not typical, no.
13 Q. Okay.
14 A. That's the most I've seen on any panel that I
15 have observed.
16 Q. And out of the 250 some odd, how many times did
17 you see that many citizens of African-American decent
18 as best as you can recall?
19 A. Few. Maybe -- I can't really accurately answer
20 that question, but only a few. There may have been a
21 dozen panels where I have seen that many
22 African-Americans.
23 Q. A dozen out of the hundreds?
24 A. Yes.
25 Q. Okay. Have you had occasion to see panels
43
1 where there were none?
2 A. I have.
3 Q. Did I already ask that? No. Okay.
4 A. Yes, I have seen panels with no blacks.
5 Q. And is that a typical situation where there are
6 none?
7 A. It is the usual situation, typical.
8 Q. The usual situation, typical?
9 A. In my opinion.
10 Q. Yes. I've asked the other lawyers, so I'm
11 going to ask you. Do you see the visual aid that's in
12 front of you with jury panel numbers and a percentage
13 of 4.3 percent?
14 A. I see that.
15 Q. Okay. If you would assume with me that those
16 who know much more about this than us will tell us in
17 the future that there are 4.3 percent of the Montgomery
18 County population that are Americans of
19 African-American decent. Just simply applying the math
20 to the numbers -- the various numbers of the sampling
21 of the numbers of jury panels you see that on the
22 average a panel of 60 would have two and a half people.
23 So in other words, two panels of 60 would have five.
24 Does that make sense?
25 A. Yes, sir, it makes sense.
44
1 Q. Okay. On average, a panel of a 100 would have
2 four and a third, so two panels of 100 would have
3 roughly 8 and a half statistically. Can you see that?
4 A. Yes, sir.
5 Q. Okay. So I want to ask you, in your experience
6 has the presence of African-Americans on our jury
7 panels fallen short of these numbers?
8 A. Unequivocally short.
9 Q. Unequivocally?
10 A. Yes, sir. In other words -- maybe I'm not
11 answering the question.
12 Q. It sounds like you did.
13 A. Sir?
14 Q. It sounds like you did. But go ahead.
15 A. We fall short, yes.
16 Q. Gravely short?
17 A. Unfairly short.
18 MR. BRASS: I'll pass the witness, Judge.
19 THE COURT: Mr. Hughes?
20 MR. HUGHES: No, Your Honor.
21 MR. JAMES: May I proceed, Judge?
22 THE COURT: Yes.
23 CROSS-EXAMINATION
24 BY MR. JAMES:
25 Q. Colonel Crow, the 4.3 number that Mr. Brass has
45
1 given you, you don't know how many of that percentage
2 of African-Americans that live in Montgomery County are
3 registered voters, do you?
4 A. I do not.
5 Q. You don't know how many of those people have
6 driver's licenses or on the driver's license list?
7 A. I do not.
8 Q. You don't know how -- are you aware of how
9 jurors are summoned in this county?
10 A. Generally familiar.
11 Q. You understand it's the voter registration and
12 driver's license list?
13 A. Correct.
14 Q. So you understand that this number could be
15 significantly lower than the 4.3 Mr. Brass keeps
16 bringing up, the number of potential folks who would be
17 summoned for jury duty that are eligible jurors?
18 A. I will confess I am not aware of the
19 demographic make up of the citizens of our county as to
20 how many are black, how many are white.
21 Q. You're not aware of that make up?
22 A. I'm not aware of the make up other than what I
23 see on this piece of paper.
24 Q. Of course, you can't tell us and you're just
25 giving us your best estimate in regards to whether the
46
1 jury panels throughout your career have been showing a
2 proportionate number of African-Americans on those
3 panels to the population?
4 A. I have no way to measure that.
5 Q. You haven't kept track of any numbers?
6 A. No, I have not.
7 Q. You're just going based off on estimate at this
8 point?
9 A. Experience, that's it.
10 MR. JAMES: Pass the witness.
11 REDIRECT EXAMINATION
12 BY MR. BRASS:
13 Q. Colonel Crow, if Mr. James is right and there
14 is some slight adjustment that would need to be made
15 for, in his opinion, the vast number of black Americans
16 in our county who don't have driver's licenses and are
17 not registered to vote, if there is some number. He
18 characterized it as significant, but he doesn't know
19 that. But if there does need to be some tweaking --
20 say, it's 4.1 percent of our population, from your
21 experience and your observation of our jury panels, are
22 the numbers of African-Americans on a jury panel still
23 gravely short even of an adjusted number?
24 A. In my opinion, it is short if not gravely
25 short.
47
1 MR. BRASS: That's all, Judge.
2 THE COURT: Mr. Hughes, anything?
3 MR. HUGHES: No, Judge.
4 THE COURT: Mr. James?
5 MR. JAMES: No, sir.
6 THE COURT: May Colonel Crow be excused?
7 Sounds like you're excused, Colonel.
8 Thank you. Mr. Brass, next witness?
9 MR. BRASS: Patty Maginnis, Your Honor.
10 THE COURT: Colonel, would you mind
11 asking Ms. Maginnis to step in here when you get out
12 there?
13 THE WITNESS: Yes, sir.
14 THE COURT: I don't remember, were you
15 sworn in?
16 THE WITNESS: No, sir. May I bring my
17 drink?
18 THE COURT: Sure.
19 PATRICIA MAGINNIS,
20 having been first duly sworn, testified as follows:
21 THE COURT: All right. Have a seat.
22 Whenever you are ready, Mr. Brass.
23 DIRECT EXAMINATION
24 BY MR. BRASS:
25 Q. State your name, please.
48
1 A. Patty Maginnis.
2 Q. How are you employed?
3 A. Currently self-employed at Maginnis, Pullan &
4 Young.
5 Q. What is your occupation?
6 A. Criminal defense attorney.
7 Q. How long have you been a lawyer?
8 A. Since 1997.
9 Q. Have you always been self-employed as a lawyer?
10 A. No, sir.
11 Q. What has been your work experience as a lawyer?
12 A. I worked at the County Attorney's Office for
13 Montgomery County back with Frank Brass as the elected
14 official, then I worked at the District Attorney's
15 office under Mike McDougal and Brett Ligon as a
16 prosecutor.
17 Q. When you started as a lawyer, did you start in
18 the County Attorney's Office?
19 A. Yes, sir.
20 Q. And so for the first -- how many years of your
21 career were you a government lawyer?
22 A. 14.
23 Q. And you've been a lawyer a total of 17?
24 A. Correct.
25 Q. In those 17 years, what has been the primary
49
1 geographic area of your practice?
2 A. Montgomery County, Conroe area.
3 Q. Would you say exclusively Montgomery County?
4 A. No, sir. Harris County as well.
5 Q. All right. But is it primarily Montgomery
6 County?
7 A. Yes, sir.
8 Q. Okay. Have you held any positions in bar
9 associations, professional organizations, or do you
10 possess other certifications that would impress us?
11 A. I don't know that they would impress you. I
12 think they've probably been what you've already heard
13 with other lawyers here; the Bar Association,
14 Montgomery County Bar, and then I'm a member of the
15 Montgomery County Criminal Bar and then the State Bar
16 and then TCLA. I've done some extensive training and
17 education as a municipal court judge for the duration
18 of six years, and that's probably it.
19 Q. Okay. Have you had occasion in your 17 years
20 to try jury trials in Montgomery County?
21 A. Yes, sir.
22 Q. On few or many occasions?
23 A. Many occasions.
24 Q. Now, this is a difficult question, and we all
25 have difficulty answering this question. But I want
50
1 you to do the best you can to give the Court, the
2 courts above us some idea of the number of jury trials
3 that you've tried in Montgomery County in your 17 years
4 as a lawyer?
5 A. Yes, sir. All level of offenses I'm assuming,
6 correct?
7 Q. Yes. Let me clarify. All criminal trials.
8 A. Okay. If you take into consideration the
9 generous amount of time spent at the JP level and then
10 the county courts with misdemeanors and with felonies,
11 I would say upwards 80 or so.
12 Q. Now, when you say "80 or so," are you talking
13 about 80 to 150 or talking about 80 plus some?
14 A. I feel a conservative number would be 85 -- 85
15 trials conservatively.
16 Q. Okay. Fair enough. Have you had the
17 opportunity during those 80 to 85 trials to observe the
18 racial make up of the jury panels in Montgomery County?
19 A. Yes, sir.
20 Q. And particularly we're focused on jurors on
21 jury panels who are of African-American decent.
22 A. Yes, sir.
23 Q. And do you have a belief, an opinion -- I don't
24 know how we want to characterize it -- based on your
25 observation of the numbers of people of
51
1 African-American decent present on the various jury
2 panels?
3 A. If I were to give you just an automatic answer
4 if you asked me looking at a panel, for example, in a
5 felony case where you had 60 or plus on the panel, I
6 would say my recollection is possibly around two.
7 Q. Now, when you say two, are you talking about
8 two African-Americans on every panel?
9 A. No, sir.
10 Q. All right. Have there been many -- few or many
11 panels where there have been no citizens of
12 African-American decent?
13 A. Few or many?
14 Q. On few or many occasions has there been no
15 African-Americans?
16 A. I would qualify that as many over that time
17 period.
18 Q. Correct. And go a little bit out on a limb
19 here. Based on your experience and your knowledge and
20 your interaction with the bar and your various
21 capacities that you testified to, do you believe that
22 there is a common belief in our judicial community
23 regarding the absence of African-Americans on our jury
24 panels?
25 A. Do I believe there is a common belief? When
52
1 you say "judicial community" are you the -- the legal
2 community?
3 Q. The lawyers, the courts.
4 MR. JAMES: Judge, I'm going to object.
5 Calls for speculation.
6 THE COURT: Sustained.
7 Q. (BY MR. BRASS) There is a visual aid in front
8 of you that has some mathematical --
9 A. Uh-huh.
10 Q. Examples. And the number, 4.3 percent, that's
11 utilized in those mathematicals, do you see that?
12 A. Yes, sir.
13 Q. So if you would assume with me that the
14 demographic experts herein testified that the
15 African-American population of Montgomery County is 4.3
16 percent, with the math applied to jury panels of
17 various numbers from 60 to 100 -- and of course this
18 would be an average. So if we were looking to test
19 whether the panels appropriately represent
20 proportionally the African-American population on
21 panels of 60 -- just according to the math, nothing
22 else -- you need two and a half people of
23 African-American decent to be representative. So on
24 two panels of 60, you would expect to see five. On a
25 panel of 100, you would expect to see four. On two
53
1 panels of 100, you would expect to see perhaps nine.
2 In your experience of observing the jury panels in
3 Montgomery County, do we fall short of these
4 representative numbers?
5 A. I would say in my experience on what I observe,
6 yes.
7 Q. Okay. And let me --
8 MR. BRASS: Excuse me just a minute.
9 I'll pass the witness, Judge.
10 THE COURT: Mr. Hughes?
11 MR. HUGHES: No, Your Honor.
12 THE COURT: Mr. James?
13 MR. JAMES: Yes, Judge. I'll try to be
14 brief as usual.
15 CROSS-EXAMINATION
16 BY MR. JAMES:
17 Q. Ms. Maginnis, you haven't kept track of any
18 sort of statistics of the number of jurors brought in
19 on panels on the cases you have tried, the number of
20 African-Americans on those panels, have you?
21 A. No, sir.
22 Q. Everything you are telling us today is
23 basically an approximation, just a best guess at this
24 point, right?
25 A. Based on my observing the panels and my
54
1 recollection.
2 Q. You can't tell us any specific panel had X
3 number of people on it and Y number of
4 African-Americans on it, can you?
5 A. No, sir.
6 Q. In fact, you don't know what percentage of
7 African-Americans in this county are eligible to be
8 jurors, do you?
9 A. No, sir.
10 MR. JAMES: Pass the witness.
11 MR. BRASS: Nothing further, Judge.
12 THE COURT: May she be excused?
13 MR. JAMES: No objection to that.
14 THE COURT: All right. Thank you, Ms.
15 Maginnis. Next witness Mr. Brass?
16 MR. BRASS: I want to call Gilbert
17 Garcia, but I don't know if he has arrived yet.
18 THE COURT: Okay. We're going to take a
19 little break. Judge needs a break.
20 (Brief recess)
21 (Open court. Defendant and all parties
22 present)
23 THE COURT: Okay. I think you were
24 calling your next witness.
25 MR. BRASS: I'm going to call Brian Burns
55
1 because he is here and Gilbert is not.
2 THE COURT: Were you sworn in before?
3 MR. BRASS: He was not, Judge. He was
4 here late.
5 BRIAN BURNS,
6 having been first duly sworn, testified as follows:
7 THE COURT: All right. Have a seat.
8 THE WITNESS: Thank you.
9 THE COURT: You said Mr. Garcia is not
10 here? Do you want me to have him picked up?
11 THE BAILIFF: I would love to.
12 THE COURT: I saw the twinkle in your
13 eye.
14 MR. JAMES: No objection.
15 MR. BRASS: In his defense, he was at a
16 doctor's appointment in Houston. I think Rebecca told
17 me or his office called and said he was getting here as
18 quick as he could.
19 THE COURT: Okay.
20 MR. BRASS: So we will proceed with him
21 or without him.
22 THE COURT: I understand. Okay.
23 MR. BRASS: I guess the short answer is,
24 no, I don't want him arrested.
25 THE COURT: All right.
56
1 MR. BRASS: May I proceed, Judge?
2 THE COURT: Yes.
3 DIRECT EXAMINATION
4 BY MR. BRASS:
5 Q. State your name for the record, please.
6 A. Yes, Brian Christopher Burns.
7 Q. Mr. Burns, how are you employed?
8 A. I'm a solo practitioner here in Montgomery
9 County. And, I guess, primarily practice up here, but
10 I do a lot of work in Houston. I live in Harris
11 County, so I go down there quite a bit.
12 Q. Is your office here in Montgomery County?
13 A. Yes. It's at 318 North Main, caddy corner to
14 the courthouse.
15 Q. Okay. How long have you been a lawyer?
16 A. Licensed May 5th, 2005, so almost ten years.
17 Q. And has -- since you've been licensed, has your
18 office always been located in Montgomery County?
19 A. Yes, for several years even starting -- I want
20 to say when I was 1-L I worked for Stephen Jackson, a
21 local attorney. And I worked for him I want to say
22 seven years, maybe more. And then 2008, I went out on
23 my own. So I've always either worked with Stephen
24 Jackson or on my own since I've been a lawyer.
25 Q. So you worked for Steve before you were a
57
1 lawyer and after you became a lawyer?
2 A. Yes.
3 Q. And you've been on your own for six years. So
4 between working for Steve in both capacities and your
5 own, you've actually been in our judicial system up
6 here 13 years; is that correct?
7 A. That sounds about right.
8 Q. Do you currently or have you in the past held
9 any positions in bar associations, professional
10 organizations, or have any certifications that would
11 impress us?
12 A. For I want to say two, maybe three years I was
13 the secretary of the local defense bar. The Montgomery
14 County Criminal Defense Lawyers Association, I'm the
15 current president until July. I'm a member of the
16 TCDLA, NACDL. That's about it.
17 Q. Okay. So you are the current president of the
18 Criminal Bar in Montgomery County today?
19 A. I was voted to be the president. So, yes,
20 against my will.
21 Q. In that capacity have you won awards for your
22 achievement in that capacity?
23 A. Yes. In fact, I did win an award at our annual
24 banquet now that you mentioned it.
25 Q. I'm going to go back and include the time that
58
1 you worked for Mr. Jackson up here before you were a
2 lawyer and the time you worked for him as a lawyer and
3 the time you've worked for yourself as a lawyer, those
4 13 years. Let me start with the years that you worked
5 for Mr. Jackson before you were a lawyer, did you
6 assist him and his associates in conducting jury
7 trials?
8 A. Yes, many jury trials. At the time I worked
9 with a couple of other lawyers, Jeremy Dishongh, Adam
10 Dietrich -- well, non lawyers who became lawyers --
11 Jeremy Dishongh, him and I went to school together,
12 Adam Dietrich, also a criminal lawyer, Rachel Williams,
13 all of us started there and became lawyers and prepared
14 many trials, criminal trials, civil trials, family
15 trials all working with Steve Jackson.
16 Q. I want to tap into your experience in
17 participating in jury trials in Montgomery County, the
18 selection of juries perhaps. But the opportunities
19 that you've had to observe the racial make up of the
20 jury panels in Montgomery County, are you focused on
21 that?
22 A. Yes.
23 Q. And I know this is difficult. It's been
24 difficult -- it's difficult for all of us to estimate
25 the number of those opportunities that we've had to
59
1 observe jury panels and the number of trials that we've
2 participated in. But I want you to try and give us an
3 estimate of the number of trials that you have
4 participated in jury selection.
5 A. Okay. Yeah, I was trying to think of that
6 earlier today. To the best of my recollection -- I
7 don't have an exact number -- but I want to say sitting
8 second chair with Steve Jackson, I would say 30 trials
9 whether from when I had third-year bar card until after
10 I was licensed. When I was able to practice law, I'd
11 say about 30 trials with him. I sat second with Byron
12 Hatchet, an attorney that used to practice here for a
13 number of years, probably eight or nine trials. And I
14 think I sat with John Choate and several other
15 attorneys.
16 Q. Okay.
17 A. Since 2008, I've been on my own. I'd probably
18 say ten trials.
19 Q. Now, you didn't say a number. You said nine
20 with Byron, and then you mentioned Choate; but you
21 didn't give us a number. I'm up to 49 so far.
22 A. I'd say 50 approximately to the best of my --
23 yeah.
24 Q. Just going off your testimony, at least 50?
25 A. I'd say 50 approximately.
60
1 Q. Okay. As you a sit here today, do you have a
2 recollection, impression of the racial make up of those
3 jury panels?
4 A. Yes. I think just for my observation it goes
5 without saying predominantly Caucasian. I represented
6 a lot of minorities, specifically Hispanic; and so I'd
7 like to think I'm, you know, focused on that quite a
8 bit.
9 Q. Let me direct your attention to people of
10 African-American decent --
11 A. Okay.
12 Q. -- present on those jury panels. Do you have a
13 perception of the types of numbers that you have had
14 direct opportunity to observe on your 50 trials?
15 A. Yes, just very few. And I actually was
16 thinking of a case that really stood out to me, a case
17 that I sat second with Steve on. It was in the 359th.
18 Just as an example, after we had busted a panel of
19 about 80, Judge Hamilton had brought in I want to say
20 102 jurors. I remember it being two African-Americans.
21 I mean, that's what I remember. It really stood out to
22 me. I couldn't believe there were so few.
23 Q. So out of a total of 182 jurors, there
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