# Davis, Leon > Court of Appeals of Texas · January 29, 2015 URL: https://www.frixlaw.com/law-library/cases/4041653 ## Case - **Court:** Court of Appeals of Texas - **Decided:** January 29, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4041653 ## How later opinions describe it (automated extraction) - Finding legal issue of first impression too debatable to be subject of mandamus ## Opinion text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4041653. Public record. Not legal advice.