WR-41,706-02
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 1/29/2015 2:55:44 PM
Accepted 1/29/2015 4:30:08 PM
ABEL ACOSTA
CLERK
NO. ______________________________
RECEIVED
COURT OF CRIMINAL APPEALS
1/29/2015
IN THE COURT OF CRIMINAL APPEALS ABEL ACOSTA, CLERK
AT AUSTIN, TEXAS
__________________________________________________________________
LEON DAVIS,
Relator,
vs.
THE HONORABLE NINTH COURT OF APPEALS,
AT BEAUMONT, TEXAS,
Respondent
Arising from No. 09-14-00337-CR
Court of Appeal, Ninth District of Texas at Beaumont
__________________________________________________________________
LEON DAVIS' MOTION FOR LEAVE TO FILE
PETITION FOR WRIT OF MANDAMUS
__________________________________________________________________
COMES NOW, LEON DAVIS, Relator, by and through his Counsel of
Record, RICK BRASS, pursuant to TEX.R.APP.P. 72.1, and seeks leave of this
Honorable Court to file the attached Petition for Writ of Mandamus complaining of
the actions of the Court of Appeals For the Ninth District of Texas, Beaumont.
WHEREFORE, PREMISES CONSIDERED, Relator prays that this
motion be granted and that this Court grant him leave to file the attached Petition
for Writ of Mandamus.
RESPECTFULLY SUBMITTED,
BRASS & McCOTTER
207 SIMONTON
CONROE, TEXAS 77301
rbrass1@yahoo.com
Tel (936) 788-5700
Fax (936) 788-5701
Rick Brass
By:_________________________________
RICK BRASS
Texas Bar No. 02909450
CERTIFICATE OF SERVICE
I hereby certify that true and correct copies of the foregoing instrument were
mailed to the Respondent and counsel for the real parties in interest on the date of
the mailing of the original to the Clerk of this Court.
Rick Brass
________________________________
RICK BRASS
NO. ______________________________
IN THE COURT OF CRIMINAL APPEALS
AT AUSTIN, TEXAS
__________________________________________________________________
LEON DAVIS,
Relator,
vs.
THE HONORABLE NINTH COURT OF APPEALS,
AT BEAUMONT, TEXAS,
Respondent
__________________________________________________________________
Arising from No. 09-14-00337-CR
Court of Appeal, Ninth District of Texas at Beaumont
__________________________________________________________________
RELATOR'S PETITION FOR WRIT OF MANDAMUS
__________________________________________________________________
Rick Brass
Rbrass1@yahoo.com
SBN: 02909450
207 Simonton
Conroe, Texas 77301
Phone: 936-788-5700
Facsimile: 936-788-5701
Counsel for Relator
Leon Davis
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
Pursuant to Tex.R. App.Proc. 52.3(a), the realtor offers the following list of parties to this
case and counsel for the parties:
Respondent: THE HONORABLE NINTH COURT OF
APPEALS, AT BEAUMONT, TEXAS
Carol Anne Harley, Clerk of the Court
Ninth Court of Appeals
1001 Pearl St., Suite 330
Beaumont, TX 77701-3552
Relator: Leon Davis
Counsel for Davis: Rick Brass
BRASS & McCOTTER
Rbrass1@yahoo.com
SBN: 02909450
207 Simonton
Conroe, Texas 77301
Phone: 936-788-5700
Facsimile: 936-788-5701
Real Party In Interest: Brett W. Ligon
Montgomery County District Attorney
Counsel for Real Party In Interest: William J. Delmore III
Assistant District Attorney
207 W. Phillips, Second Floor
Conroe, Texas 77301
(936) 539-7800
Real Party In Interest: Barbara Adamick
Montgomery County District Clerk
Counsel for Real Party In Interest: M. Michael Meyer
Assistant District Attorney
207 W. Phillips, Second Floor
Conroe, Texas 77301
(936) 539-7828
Real Party In Interest: Honorable Kelly W. Case
9th Judicial District Court
301 North Main Street
Conroe, Texas 77301
Phone: (939)-539-7866
i
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL .............................................................i
JURISIDICTION .......................................................................................................1
STATEMENT OF FACTS ........................................................................................2
STATEMENT REGARDING ORAL ARGUMENT ............................................... 5
GROUNDS IN SUPPORT OF MANDAMUS RELIEF ........................................... 5
ARGUMENT AND AUTHORITIES ........................................................................ 6
I. THE STANDARD OF REVIEW FOR OBTAINING MANDAMUS
RELIEF .......................................................................................................6
II. MANDAMUS RELIEF IS APPROPRIATE IN THIS CASE ................... 7
A. RELATOR HAS NO ADEQUATE REMEDY AT LAW.............................. 8
B. RELATOR HAS A CLEAR RIGHT TO RELIEF ......................................... 9
1. The Trial Court’s order to produce the addresses of all jurors summonsed
during 2013 was not a “ministerial” act because the Montgomery County
Electronic Jury Selection Plan gives the Trial Court the authority to view the
address data ordered to be produced..............................................................10
2. The Trial Court did not abuse its discretion. .................................................12
A. The order to produce limited juror address data did not violate Article 35.29
of the Code of Criminal Procedure nor Section 62.0132 of the Government
Code. The Trial Court’s Order was discretionary, not a ministerial act;
therefore, the Trial Court did not abuse its discretion and mandamus relief
should not have issued. ..................................................................................13
a. Article 35.29 of the Code of Criminal Procedure was not violated in this
case because the juror address data is not collected from any juror
ii
questionnaire or information supplied during the voir dire process.............. 17
b. Section 62.0132 of the Texas Government Code is not violated in this case
because the address data is not collected from a jury questionnaire. ............ 16
c. The address data of those summoned is not protected information. ............ 17
i. The addresses of those jurors summoned are available from public sources..... 17
ii. The private vendor given the juror information is not under a confidentiality
agreement; however, the experts in this case will be subject to a confidentiality
agreement. ...........................................................................................................18
iii. The Jury Selection Plan states that the Judge has discretion to review the list of
all summoned prospective jurors and the Judge has appointed experts to review
only the jury address data. ..................................................................................19
B. The Trial Court has authority over the District Clerk of Montgomery County;
therefore the Trial Court’s Order to turn over address data was not an abuse of
discretion and mandamus relief should not have issued. ...................................19
1. §62.011(b)(4) of the Texas Government Code and Montgomery County
Electronic Jury Selection Plan Sections (B), (E), and (F) all provide that the
District Clerk is the agent of the District Court.............................................20
2. The District Clerk consented to the District Court’s personal jurisdiction. .. 22
3. The electronic data ordered to be produced already exists. ..........................23
C. Article 39.14 of the Texas Code of Criminal Procedure is inapplicable as the
requested juror address data is not in possession of the District Attorney nor any
of his agents; therefore, the Trial Court did not abuse its discretion and
mandamus relief should not have issued. ...........................................................24
D. The Compulsory Process Clause authorizes the Trial Court’s action; therefore,
the Trial Court did not abuse its discretion and mandamus relief should not have
issued...................................................................................................................24
iii
E. The juror address information is needed to ensure that Defendants in
Montgomery County are tried by a constitutionally valid jury; therefore, the
Trial Court did not abuse its discretion and mandamus relief should not have
issued...................................................................................................................25
1. The Fourteenth Amendment requires that equal protection must actually be
given to all and not be merely an empty promise ...............................................26
2. The Sixth Amendment right to a jury trial requires selection of a petit jury from
a representative cross section of the community. ...............................................28
F. The Constitutional complaint is ripe and valid; therefore, the Trial Court did not
abuse its discretion and mandamus relief should not have issued......................32
1. Because Davis is not seeking information from juror questionnaires, his
challenge is not premature. .................................................................................34
2. Evidence produced at the May 21, 2014, hearing demonstrates there is an
apparent exclusion of African-Americans in the jury summonsing process. ..... 34
PRAYER FOR RELIEF ..........................................................................................35
CERTIFICATE OF SERVICE ................................................................................36
VERIFICATION ......................................................................................................37
APPENDICES .........................................................................................................38
iv
INDEX OF AUTHORITIES
Cases:
Bill Hill v. Court of Appeals,
67 S.W.3d 177, 180 (Tex. Crim. App. 2001 ................................................... 9
Byke v. City of Corpus Christi,
569 S.W.2d 927, 932 (Tex.Civ.App. -- Corpus Christi 1978) ......................16
City of Rockwall v. Hughes,
246 S.W.3d 621, 625-26 (Tex. 2008) ............................................................15
Dickens v. Court of Appeals,
727 S.W.2d 542, 550 (Tex. Crim. App. 1987) ............................................7, 8
Fitzgerald v. Advanced Spine Fixation Sys., Inc.,
996 S.W.2d 864, 865-66 (Tex. 1999) ............................................................15
Hernandez v. Texas,
347 U.S. 475, 477 (U.S. 1954) ................................................................25, 32
Ins. Corp. of Ir. v. Compagnie Des Bauxites De Guinee,
456 U.S. 694, 703 (U.S. 1982) ......................................................................23
Miles v. State,
157 Tex.Crim. 188, 247 S.W.2d 898, 899 (1952) ..........................................16
Missouri v. Duren,
439 U.S. 357, 364 (U.S. 1979) ......................................................................... 29
Nat'l Liab. & Fire Ins. Co. v. Allen,
15 S.W.3d 525, 527 (Tex. 2000) ...................................................................15
Padieu v. Court of Appeals of Texas, Fifth District,
392 S.W.3d 115, 117 (Tex. Crim. App. 2013) ....................................1, 7, 8, 9
Ramseur v. Beyer,
983 F. 2d 1215, 1230 (3d Cir. 1992) ............................................................... 29
v
Ruiz-Angeles v. State,
351 S.W.3d 489, 496 (Tex.App.— [14th Dist.] 2011) (pet. refused) ............ 14
Simmons v. Arnim, ,
110 Tex. 309, 324, 220 S.W. 66 (Tex. 1920) ..............................................15
Smith v. Texas,
311 U.S. 128, 130 (U.S. 1940) ......................................................................26
Taylor v. Louisiana,
419 U.S. 522, 528 (U.S. 1975) ......................................................................28
Texas Dept. of Corrections, Etc. v. Dalehite,
623 S.W.2d 420, 424 (Tex. Crim. App. 1981) ................................................9
United States v. Weaver,
267 F.3d 231, 240 (3d Cir. 2001) ..............................................................2, 30
United States of America v. James Stile,
2014 U.S. Dist. LEXIS 65390 (D. Me., 2014) ..............................................20
United States of Amerieca v. Kaboni Savage,
Robert Merritt, Steven Northington, Kidada Savage,
2012 U.S. Dist. LEXIS 142844 (E.D. Pa., 2012) ..............................19, 30, 31
United States v. Murphy,
464 F. App’x 60, 63 (3d Cir. 2012) ...............................................................30
United States v. Royal,
100 F.3d 1019, 1025 (1st Cir. 1996) ..............................................................34
United States v. Test,
420 U.S. 28, 29-30 (1975) .............................................................................31
Wade v. Mays,
689 S.W.2d 893, 898 (Tex. Crim. App. 1985) ...................................9, 10, 12
Washington v. McSpadden,
676 S.W.2d 420, 422 (Tex. Crim. App. 1984) ................................................ 9
vi
Statutes:
Texas Code of Criminal Procedure, Article 4.04 ...................................................... 1
Texas Code of Criminal Procedure, Article 35.29 ................ ii, 5, 12, 13, 14, 16, 17
Texas Constitution, Section V, Section 5 .................................................................. 1
Texas Government Code, Section 62.011 ................................... iii, 4, 10, 20, 21, 22
Texas Government Code, Section 62.0132 ............................. ii, iii, 5, 12, 13, 14, 17
Texas Government Code Ann, Section 311.011(a) ................................................15
Texas Rules of Appellate Procedure, Section 72.1.................................................... 1
United States Constitution, Sixth Amendment ..................... 6, 20, 25, 26, 28, 29, 30
United States Constitution, Fourteenth Amendment ...............................6, 26, 27, 28
vii
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL
APPEALS:
LEON DAVIS, Relator, by and through his Counsel of Record, RICK
BRASS of BRASS & McCOTTER, pursuant to TEX. R. APP. P. 72.1, files this
Petition for Writ of Mandamus, complaining of Respondent, the Honorable Ninth
Court of Appeals, in Beaumont, Texas, and of said Court’s Memorandum Opinion
in No. 09-14-00337-CR and in support thereof will show this Honorable Court the
following:
JURISIDICTION
This Court has mandamus jurisdiction over the Court of Appeals, Ninth
District of Texas at Beaumont, pursuant to Article 4.04 of the Texas Code of
Criminal Procedure along with Article V, Section 5 of the Texas Constitution. 1
“The court of criminal appeals does not have jurisdiction to review an appellate
court’s decision in its exercise of original jurisdiction by way of petition for
discretionary review, so mandamus is the realtor’s only remedy at law.” Padieu v.
Court of Appeals of Texas, Fifth District, 392 S.W.3d 115, 117 (Tex. Crim. App.
2013).
1
Art. 4.04, Sec. 1 “The Court of Criminal Appeals and each judge thereof shall have, and is
hereby given, the power and authority to grant and issue and cause the issuance of writ of habeas
corpus, and, in criminal law matters, the writ of mandamus, procedendo, prohibition and
certiotari. The court and each judge thereof shall have, and is hereby given, the power and
authority to grant and issue and cause the issuance of such other writs as may be necessary to
protect its jurisdiction or enforce its judgments.” TX. Code of Crim. Proc. Ann. Art. 4.04
1
STATEMENT OF FACTS
Relator, Leon Davis maintains the summoning process of jurors in
Montgomery County, Texas is broken because the process does not provide a
random and fair cross-section of the community. The number of African-
American venire-persons does not appear to be fair and reasonable in relation to
the number of such persons in the community.
Davis filed a motion challenging the jury selection process in Montgomery
County, Texas. On May 21, 2014 and upon Motion of Relator’s Counsel of
Record, the Ninth Judicial District Court, conducted an evidentiary hearing in
which several criminal defense attorneys provided evidence about the number of
African-American venire-persons they personally observed during jury selection
proceedings in previous trials.2 African-Americans are a distinctive group. See
United States v. Weaver, 267 F.3d 231, 240 (3d Cir. 2001).
At the May 21, 2014, evidentiary hearing, there was testimony from several
local lawyers regarding the sparsity of African-American jurors on jury panels.3
There was also testimony from Dr. Karl Eschbach, an expert demographer hired by
Davis, who reviewed the number of African-Americans summoned for jury duty.
2
The attorney witnesses were, Lydia Clay-Jackson, E. Tay Bond, Jerald Crow, Patricia
Magninnis, Brian Burns, Ray Stokes and Gilbert Garcia. See Reporter’s Record, Appendix A,
3
A transcription of the court-reporter’s notes from the May 21, 2014, the evidentiary hearing is
attached as Appendix A. This is referred to as the Reporter’s Record.
2
Based upon the evidence which Dr. Eschbach heard, he expressed the opinion that
further investigation was necessary to determine if the jury pool is racially
balanced.4
In order to complete his study, Dr. Eschbach testified that he would need
the address of every person summoned during the year 2013. The Trial Court
ordered the Montgomery County District Clerk (herein “District Clerk”) to provide
address data in electronic form of all individuals summoned for jury duty during
2013, which delivery would be conditioned upon the experts signing a
confidentiality agreement. 5
In addition, Dr. Eschbach explained that he and Max Beauregard, another
expert, sought the juror address information in order to overlay a map of the
summoned jurors’ addresses over another map reflecting the actual distribution of
African-American citizens throughout the county’s neighborhoods based upon the
2010 census.
All parties agree that the District Clerk receives the master list of eligible
jurors from the Secretary of State. This master list is made up of all individuals in
Montgomery County who either (1) are registered voters; (2) have a Texas driver’s
license; or (3) have a Texas state identification card. According to the Montgomery
County Electronic Jury Selection Plan, (herein the “Plan”) which is administered
4
See Reporter’s Record, Appendix A, Page 73, Line, 23 through Page 74, Line 3.
5
Appendix B Order Signed 8/4/2014 by Judge Case.
3
by the District Clerk, jurors are supposed to be summonsed on a random basis.
The summonses are produced by a computer program approved under Section
62.011 of the Government Code. (“Electronic or Mechanical Method of
Selection).”6
At the same May 2014 evidentiary hearing, the District Clerk’s attorney of
record took the lead in cross-examining Davis’ witnesses and expert. 7 At that
hearing, the District Clerk offered no rebuttal testimony and called no witnesses to
rebut the testimony presented by Davis. 8 The only evidence before the respondent
judge was the evidence elicited by Davis through his attorney of record. Neither
the District Clerk nor the Montgomery County District Attorney (herein “District
Attorney”) presented any evidence to rebut Davis’ contention.
On October 8, 2014, the Court of Appeals for the Ninth District of Texas at
Beaumont conditionally granted the mandamus petition of Brett W. Ligon, the
Montgomery County District Attorney, and Barbara Adamick, the Montgomery
County District Clerk, ordering the Trial Court of the Ninth Judicial District Court
of Montgomery County, Texas, to vacate his order requiring disclosure to the
6
See Tex. Gov’t Code Ann. § 62.011 (West 2013). The trial court --although engaged in a
hearing about jury selection procedures—did not admit into evidence the Montgomery County’s
electronic jury selection plan adopted by the board of judges and commissioner’s court pursuant
to section 62.011; but the trial court did permit it to be included in the record for this Court’s
review, and a copy is attached as Appendix C. See Reporter’s Record, Appendix A, Line 25,
Page 122 through Line 4, Page 124.
7
See Reporter’s Record, Appendix A, Page 3 showing that the State and the District Clerk called
no witnesses.
8
See Reporter’s Record, Appendix A, Page 8, Lines 2 through 4.
4
defense’s retained experts only the address of every person summoned for jury
service in Montgomery County for 2013.
STATEMENT REGARDING ORAL ARUGMENT
Counsel for the Appellee requests oral argument and believes that it would
be beneficial to the Court to be available to respond to questions regarding this
case and the applicable law involved.
GROUNDS IN SUPPORT OF MANDAMUS RELIEF
The Beaumont Court of Appeals misapplied the law by making confidential,
information which is provided to Montgomery County under its Jury Selection
Plan by the Secretary of State and by the Department of Public Safety, when that
information is not designated as “confidential” by Texas law. 9 This information is
used to compile the “jury wheel” in order to summons those who might serve on a
jury.
1. Article 35.29 of Texas Code of Criminal Procedure and Section 62.0132 of
the Texas Government Code do not apply to the Trial Court’s Order because
information obtained from juror summons is separate and distinct from
information gathered from juror questionnaires; the summons data (here,
Trial Court’s Order for addresses of all those summonsed in 2013) is not
confidential, while the questionnaire data (gathered from the venire panel
9
Tex Gov’t Code Section 62.0312(f) which makes only information given by a prospective
juror in response to a juror questionnaire.
5
during the voir dire process) is confidential. Therefore, mandamus against
the Trial Court should not have issued and this Court should issue
mandamus against the Ninth Court of Appeals.
2. The Montgomery County Electronic Jury Selection Plan gives the Trial
Court the authority over the Montgomery County District Clerk, who is in
possession of the address data, and that data is not part of criminal
discovery, so the Montgomery County District Attorney is not a proper
party. Therefore, mandamus against the Trial Court should not have issued
and this Court should issue mandamus against the Ninth Court of Appeals.
3. The Compulsory Process Clause grants the Trial Court authority to issue the
Order to secure petit juror address data. Therefore, mandamus against the
Trial Court should not have issued and this Court should issue mandamus
against the Ninth Court of Appeals.
4. The Fourteenth and Sixth Amendments to the United States Constitution
provide Davis with the right to be tried by a jury that fairly represents
Montgomery County, Texas and the testimony from May 21,2014 warrants a
statistical investigation of the Montgomery County jury summonsing
process.
5. Davis has a valid and ripe Constitutional complaint regarding the jury
summoning process of Montgomery County, Texas. Davis’ complaint is
supported by evidence and testimony which suggests a systematic exclusion
of African-Americans in the jury summoning process. The complaint is not
premature and mandamus relief against the court of appeals should issue.10
ARGUMENT AND AUTHORITIES
I. THE STANDARD OF REVIEW FOR OBTAINING MANDAMUS
RELIEF
“The traditional two-prong test for mandamus relief requires that a relator show
he has no adequate remedy at law and that the action he seeks to compel is
10
Appendix A, Reporter’s Record
6
ministerial, rather than one involving judicial discretion. Padieu v. Court of
Appeals of Tex., 392 S.W.3d 115, 117 (Tex. Crim. App. 2013). “However, when
this Court reviews an appellate court’s mandamus decision, the inquiry is whether
there was a clear abuse of discretion, and this Court’s review is conducted
“essentially conducted by taking a ‘de novo application of the two pronged test
mentioned above.’” Id. Therefore, Davis must show the Ninth Court of Appeals
abused its discretion because (1) the Trial Court did not violate a ministerial duty
and (2) Davis has no adequate remedy at law. Dickens v. Court of Appeals, 727
S.W.2d 542, 550 (Tex. Crim. App. 1987); see also Padieu, 392 S.W.3d at 117.
In this case, Davis seeks mandamus relief against the Ninth Court of Appeals
after that court conditionally granted mandamus relief against the Trial Court of
the Ninth Judicial District Court of Montgomery County, Texas and asks this
Honorable Court to mandamus the Ninth Court of Appeals and order the Beaumont
Court to withdraw its mandamus order.
II. MANDAMUS RELIEF IS APPROPRIATE IN THIS CASE
At the Ninth Court of Appeals, Relators were the Montgomery County District
Attorney and the District Clerk and they sought a mandamus to vacate the Trial
Court’s order requiring the District Clerk to turn over the electronic address data of
7
those summoned as prospective jurors during 2013. 11 Because this is a case in
which a mandamus has already been conditionally granted, Davis cannot petition
for discretionary review and has no remedy at law other than to seek a mandamus
action against the court of appeals. Padieu, 392 S.W.3d at 117; see also Dickens,
727 S.W.2d at 549.
Davis has a clear right to relief in having the mandamus against the Trial Court
overturned because the Ninth Court of Appeals clearly abused its discretion. Davis
contends that the Ninth Court of Appeals abused its discretion because: (1) the
Trial Court’s order was not a “ministerial” act since the Plan gives the trial court
the authority to view the summonsed jurors, and (2) the Trial Court’s order did not
violate any provision of the Code of Criminal Procedure or the Texas Government
Code.
A. RELATOR HAS NO ADEQUATE REMEDY AT LAW
In this case, the Ninth Court of Appeals conditionally granted a mandamus
against the Ninth Judicial District Court of Montgomery County, Texas. Since
mandamus is an exercise of original jurisdiction, this Honorable Court cannot
review the Ninth Court of Appeal’s action under a petition for discretionary
review; therefore, Davis has no other remedy at law other than to seek a mandamus
11
Appendix “B” Order dated 4 August 2014 signed by Judge Case
8
action against the Ninth Court of Appeals at Beaumont. Padieu, 392 S.W.3d at
117.
B. RELATOR HAS A CLEAR RIGHT TO RELIEF
In order for mandamus to issue, the District Attorney and District Clerk must
show that “there [was] no other adequate remedy available and that the act sought
to be mandated [was] a ministerial act.” Washington v. McSpadden, 676 S.W.2d
420, 422 (Tex. Crim. App. 1984). 12 An action is considered to be “ministerial”
when the law clearly spells out the duty to be performed and does so with such
certainty that nothing is left to the exercise of discretion or judgment. Texas Dept.
of Corrections, Etc. v. Dalehite, 623 S.W.2d 420, 424 (Tex. Crim. App. 1981).
Mandamus cannot issue to compel an act that is to any degree discretionary or
debatable, State ex rel. Wade v. Mays, 689 S.W.2d 893, 898 (Tex. Crim. App.
1985), and a ruling on a pure question of law is not subject to mandamus review if
that law is unsettled or uncertain. State ex rel. Bill Hill v. Court of Appeals, 67
S.W.3d 177, 180 (Tex. Crim. App. 2001) (Finding legal issue of first impression
too debatable to be subject of mandamus).
Davis agrees that the District Clerk had no other remedy available at law;
therefore, the writ of mandamus was the correct manner to challenge the trial
12
The District Attorney was not ordered to produce anything and is not really a real party in
interest. (See Appendix B Order Signed 8/4/2014 by Judge Case.)
9
court’s order. However, the mandamus should not have been conditionally granted
by the Ninth Court of Appeals because the trial court did not abuse its discretion
and the trial court did not violate a ministerial duty. The District Clerk did not
satisfy both prongs of the two part test.
1. The Trial Court’s order to produce the addresses of all jurors summonsed
during 2013 was not a “ministerial” act because the Montgomery County
Electronic Jury Selection Plan gives the Trial Court the authority to view
the address data ordered to be produced.
An action is considered to be “ministerial” when the law clearly spells out
the duty to be performed and does so with such certainty that nothing is left to the
exercise of discretion or judgment. Dalehite, 623 S.W.2d at 424. Mandamus
cannot issue to compel an act that is to any degree discretionary or debatable,
Mays, 689 S.W.2d at 898. In this case, the Trial Court’s August 4, 2014 Order was
not a violation of a ministerial act because the Montgomery County Electronic Jury
Selection Plan gives the Trial Court the authority to view the data. 13
The Trial Court ordered the District Clerk to provide address data in
electronic form of all individuals summoned for jury duty during 2013. 14 The
13
F. Selection of Jurors: (Gov’t Code 62.011)
(Page 7 of 9) ... The person/vender shall transmit the original summarized jury list containing the
names and addresses of all prospective jurors summoned for each date of appearance to the Jury
Coordinator. The Jury Coordinator/representative shall deliver such list to the County Clerk’s
Office for filing. A duplicate copy shall be retained by the Jury Coordinator, to be viewed
at the Judge’s discretion.”
14
Appendix B Order Signed 8/4/2014 by Judge Case.
10
names of persons who will be summoned for jury service are electronically chosen
from the Jury Wheel (see
www.mctx.org/dept/departments_d/district_clerk/jury_service.html). This website
states that the list of those summoned is compiled from Texas Driver’s Licenses
and Voter Registration lists, which are both public data sources and which are not
confidential. 15
The Plan specifically provides in Subsection F that the list containing the
names and addresses of all prospective jurors summoned shall be retained to be
viewed at the Judge’s discretion. The Trial Court’s order states that the address
data of all jurors summoned during 2013 shall be turned over to the defense
experts under a confidentiality agreement to test whether there is a systematic
exclusion of African-American citizens from jury service. Given that the Trial
Court is authorized under the Plan to view the list, it is not unreasonable to contend
that the Trial Court possesses the discretion to permit the juror address data to be
15
The Plan provides that the sources of the names for the Jury Wheel are as follows:
A. Sources
The sources from which all names shall be taken is the current voter registration lists from all
precincts in Montgomery County and all names on a current list to be furnished by the
Department of Public Safety showing the citizens of Montgomery County who hold a valid
Texas Driver’s License and the citizens of the County, other than persons who are disqualified
from Jury service, who hold a valid personal identification card or certificate held by the
Department of Public Safety, except those exempt from jury service as provided by Sections
62.108 and 62.109 of the Government Code; and further provided that at any stage of this plan
the voter registrar of Montgomery County, the Department of Public Safety, the Secretary of
State, or the Montgomery County District Clerk may remove from Jury Service duplications of
any citizen's name, or the name of any citizen who is disqualified from jury service, such as
felons or aliens.
11
viewed by experts under a confidentiality agreement. The Ninth Court of Appeals
should not have conditionally granted the mandamus against the Trial Court for the
August 4, 2014 Order because the Trial Court’s Order was within its discretion.
See Mays, 689 S.W.2d at 898.
In sum, because the Plan authorizes the Trial Court to view the data which it
ordered to be turned over to Dr. Karl Eschbach and Mr. Max Beauregard under
confidentiality agreements and because the data already exists this was not a
ministerial act and the Ninth Court of Appeals should not have issued mandamus
relief.
2. The Trial Court did not abuse its discretion.
A. The order to produce limited juror address data did not violate Article
35.29 of the Code of Criminal Procedure nor Section 62.0132 of the
Government Code. The Trial Court’s Order was discretionary, not a
ministerial act; therefore, the Trial Court did not abuse its discretion and
mandamus relief should not have issued.
The Court of Appeals for the Ninth District of Texas at Beaumont
incorrectly applied the law. The Beaumont Court equated the information used
to summons a juror with the information provided by the juror when answering
the juror questionnaire. 16 As a result, the Beaumont Court wrongly found that
the “name, address, juror number and TDL or voter registration number on the
16
Appendix D, Page 4 (the Memorandum)
12
front of the summons” is confidential under Section 62.0132 of the Texas
Government Code. 17 The Ninth Court of Appeals concluded that the juror
summons information provided by the Secretary of State and by the Department
of Public Safety is confidential when none of the juror summons data ordered to
be disclosed is labeled as “confidential” by the Texas Legislature. At Page 5 of
the Memorandum Opinion, the Court stated:
Davis argues that each summoned juror’s address is not confidential
in this context, because the questionnaire itself is not being disclosed.
Montgomery County’s jury selection plan states that the information
retained by the District Clerk’s Jury Coordinator is a computer
printout of “the specified number of prospective jurors with their
name, address, juror number and TDL or voter registration number
on front of the summons.” This is the confidential information
mentioned in section 62.0132 of the Texas Government Code and
article 35.29 of the Texas Code of Criminal Procedure. See Tex. Gov’t
Code Ann. § 62.0132; Tex. Code Crim. Proc. Ann. art. 35.29. 18 The
jurors’ personal information is not transformed from confidential to
public information even though under Montgomery County’s jury
selection plan the District Clerk prints a “summarized jury list
containing the names and addresses of all prospective jurors
summoned for each date of appearance” and a judge who requested a
jury is allowed to see the printout.
17
Appendix D, Page 5 (the Memorandum)
18
Davis did not argue, in this Court or in the trial court, that he presented good cause for the trial
court to order disclosure of personal information about jurors. See Tex. Code Crim. Proc. Ann.
art. 35.29(b) (West Supp. 2014).
13
There is a distinction between (a) a person who is summoned for jury
service, (b) a person who responds to such a summons and is included in a venire,
and (c) a person who actually is selected from a venire to serve on a jury. See
Ruiz-Angeles v. State, 351 S.W.3d 489, 496 (Tex.App.— [14th Dist.] 2011) (pet.
refused).
Persons who are summoned for jury service are also provided a written jury
summons questionnaire (“questionnaire”). The questionnaire is to be completed by
the person who responds to the summons and is included in the venire. The
summons is separate and distinct from the questionnaire. The summons data is
provided by the Texas Secretary of State and Texas Department of Public Safety.
The questionnaire data comes from the person who responds to the summons.
Accordingly, Article 35.29 of the Code of Criminal Procedure and Section
62.0132 of the Government Code do not apply to this case. Article 35.29 of the
Code of Criminal Procedure restricts the disclosure of information obtained from
jurors by means of juror questionnaires. Section 62.0132 of the Government Code
provides for the confidentiality of such information contained in juror
questionnaires and provides for limited disclosure. Both of these provisions deal
with information obtained from jurors responding to questionnaires and these
statutory provisions should not be expanded to include the data ordered disclosed
in this case, namely, the addresses from all jurors summoned in 2013.
14
When construing a statute, a reviewing court should determine and give
effect to the legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d
525, 527 (Tex. 2000). If the meaning of the statutory language is unambiguous, a
reviewing court adopts, with few exceptions, the interpretation supported by the
plain meaning of the provision's words and terms. See Fitzgerald v. Advanced
Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex. 1999). If a statute is
unambiguous, rules of construction or other extrinsic aids cannot be used to create
ambiguity. Id. at 866. When interpreting a code enacted by the legislature, the
Court should read words and phrases in context and construe them according to the
rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a). If
words are not defined, they are given their plain and common meaning, unless the
context of the statute indicates a contrary intention or it leads to an absurd result.
See City of Rockwall v. Hughes, 246 S.W.3d 621, 625-26 (Tex. 2008).
In Simmons v. Arnim, 110 Tex. 309, 324, 220 S.W. 66 (Tex. 1920), the
Texas Supreme Court discusses a court's duty when reviewing, addressing and
accepting the plain, unequivocal statutory language:
Courts must take statutes as they find them. More than that, they should be
willing to take them as they find them. They should search out carefully the
intendment of a statute, giving full effect to all of its terms. But they must
find its intent in its language, and not elsewhere. They are not the law-
making body. They are not responsible for omissions in legislation. They are
responsible for a true and fair interpretation of the written law. It must be an
interpretation which expresses only the will of the makers of the law, not
15
forced nor strained, but simply such as the words of the law in their plain
sense fairly sanction and will clearly sustain.
Id. At 70. In Byke v. City of Corpus Christi, 569 S.W.2d 927, 932 (Tex.Civ.App. -
- Corpus Christi 1978), the Thirteenth Court of Appeals also stated that, "When
the courts abandon the plain, ordinary and customary meaning of words in
common usage, statutory construction rests upon insecure and obscure foundations
at best." In Miles v. State, 157 Tex.Crim. 188, 247 S.W.2d 898, 899 (1952) this
Honorable Court stated that, “This court, under the guise of statutory construction,
cannot write into the statute that which is not contained therein.” Davis contends
that the address information used to summons a prospective juror is not
confidential as held by the Ninth Court of Appeals.
a. Article 35.29 of the Code of Criminal Procedure was not violated in this
case because the juror address data is not to be collected from any juror
questionnaire or information supplied during the voir dire process.
Article 35.29 of the Code of Criminal Procedure protects information
collected during the jury selection process from potential jurors. The Article
provides for limited disclosure. The Order in this case had nothing to do with
information collected from persons who serve as a juror or appear during the
venire process. The Order relates to all jurors summoned in 2013 (those who were
mailed a summons) and is limited to the juror address data alone. Thus, Article
16
35.29 does not apply because the addresses to be reviewed by the experts relate to
the jury summoning process, not the jury selection process 19.
b. Section 62.0132 of the Texas Government Code is not violated in this case
because the address data is not being collected from a jury questionnaire.
Section 62.0132 of the Texas Government Code protects information
contained in jury questionnaires. The Order in no way relates to information
contained in jury questionnaires. No information from juror questionnaires is
being requested; therefore, Section 62.0132 is wholly inapplicable.20
c. The address data of those summoned is not protected information.
i. The addresses of those jurors summoned are available from public sources.
The August 4, 2014 Order only orders the District Clerk to turn over the
addresses of those persons summoned during 2013. 21 Moreover, the information is
being given to retained experts under confidentiality agreements.22 The addresses
of those registered to vote in the county are easily obtainable through the
Montgomery County Elections Administration. 23 All that is required to obtain the
names and addresses of every person registered to vote in Montgomery County is
19
Section 62.0132(f), Texas Government Code makes juror supplied information obtained
through questionnaires confidential and does not address the summons process.
20
Article 35.29(a), Texas Code of Criminal Procedure, provides that information collected by the
court or a prosecuting attorney during the jury selection process….is confidential.
21
Appendix B Order Signed 8/4/2014 by Judge Case.
22
Appendix B Order Signed 8/4/2014 by Judge Case.
23
See http://www.mctx.org/election/
17
for a request to be made. The information is then available for download
immediately and no fee is required for this service. 24
Given that the jury list is compiled using the voter registration list and that
the names and addresses of all on the jury list are available publicly, it was not an
abuse of discretion for Trial Court to order just the addresses of those summoned
to be turned over to the defense experts under confidentiality agreements. In fact,
the juror address information is more protected under the trial court’s order than
other methods by which such information is typically made available to the public.
ii. The private vendor given the juror information is not under a confidentiality
agreement; however, the experts in this case will be subject to a
Confidentiality Agreement.
The Plan provides for a person or vendor to print out the summons for jurors
after a request for jurors has been made. 25 The Plan does not state whether this
person or outside vendor is under any type of confidentiality requirement. Yet,
once again, the trial court’s August 4, 2014 Order does provide for the addresses to
be given to the retained experts under a confidentiality agreement. 26 The Order
further provides for the addresses data to “only be used for the purposes stated in
this Order and not disseminated or shared with any other person or entity.” 27
24
See http://www.mctx.org/election/
25
Appendix C (The Plan)
26
Appendix B Order Signed 8/4/2014 by Judge Case.
27
Appendix B Order Signed 8/4/2014 by Judge Case.
18
iii. The Jury Selection Plan states that the Judge has discretion to review
the list of all summoned prospective jurors and the Judge has appointed
experts to review only the jury address data.
The Plan states that the jury list containing the names and addresses of all
prospective jurors summoned for each date of appearance shall be retained to be
viewed at the Judge’s discretion.28 Given that the Trial Court can view the list, it
is not unreasonable that the Trial Court may permit experts to view the data in the
Trial Court’s place in order to conduct a study.
In sum, only the addresses of those summoned for jury duty in 2013 is in
contention. Those persons registered to vote in Montgomery County are already
subject to having their names and addresses given out upon a public information
request that is available to be online at no charge. The trial court’s order does not
order names to be disclosed. Just addresses. Given that the Trial Court can view
the list itself, it is not offensive for retained experts under confidentially
agreements to see the addresses of those summoned for jury during 2013.
B. The Trial Court has authority over the District Clerk of Montgomery
County; therefore the Trial Court’s Order to turn over address data was
not an abuse of discretion and mandamus relief should not have issued.
As held in United States of America v. Kaboni Savage, Robert Merritt,
Steven Northington, Kidada Savage, 2012 U.S. Dist. LEXIS 142844 (E.D. Pa.,
2012), the Clerk of the Court is the party who holds the juror information
28
Appendix C, Page 8 (the Plan)
19
requested and the party who “bears the burden” of providing the defendant with
access to the juror information. See Id. at 21. The Court in United States of
America v. James Stile, 2014 U.S. Dist. LEXIS 65390 (D. Me., 2014) also
ordered the Clerk of the Court to provide the defense with juror information.
Accordingly, in this case, the trial court did have the authority to order the clerk
of the court, the Montgomery County District Clerk, to provide the defense with
the address data.
Furthermore, the trial court has authority over the District Clerk pursuant to
Section 62.011(b)(4) of the Texas Government Code, the Plan, and according to
the compulsory process clause of the Sixth Amendment to the U.S.
Constitution.
1. §62.011(b)(4) of the Texas Government Code and Montgomery County
Electronic Jury Selection Plan Sections (B), (E), and (F) all provide that the
District Clerk is the agent of the District Court.
The District Clerk was ordered to produce information which the District
Clerk possesses as a result of her official designation. The Plan provides:
B. Official in Charge: (Gov’t Code Sec. 62.001, b-1)
The District Clerk of Montgomery County, Texas is
designated as the official in charge of the Montgomery
County Jury Selection process...
20
E. Presiding Judge/Appointee: (Gov’t Code Sec. 62.011,
62.110-b)
The District Clerk, appointed by the Presiding Board
of Judges on August 5, 2005...
F. Selection of Jurors: (Gov’t Code 62.011)
Each week or month, or three (3) weeks prior to
requested appearance, the Court Coordinator, under the
direction of the Judge of each County and District Court
shall submit to the District Clerk Jury Coordinator a Court’s
“Request for Jurors.” (Being form #2 of the Jury Pool
Guidelines). The request shall specify the following:
1. dates of appearances;
2. number of jurors to appear for each date;
3. appearance time for each date; and
4. the Courtroom or place designated as a Courtroom
or assembly area for jurors to appear on each date.
On Thursdays of each week, the Jury Coordinator or
representative will calculate from the timely filed requests, the
specified number of jurors to appear three weeks away. The
Jury Coordinator shall electronically transmit these requests to
the designated person/vendor. The designated person shall
cause their computer to print out the specified number of
prospective jurors with their name, address, juror number and
TDL or voter registration number on front of the summons.
These summons shall be placed in the mail within two (2) days
from the date of request by jury coordinator, per designation of
the Sheriff. The person/vender shall transmit the original
summarized jury list containing the names and addresses of
all prospective jurors summoned for each date of appearance
to the Jury Coordinator. The Jury Coordinator/representative
21
shall deliver such list to the County Clerk’s Office for filing. A
duplicate copy shall be retained by the Jury Coordinator, to
be viewed at the Judge’s discretion.”
29
The Montgomery County Jury Selection Plan (Emphasis added). Each of the
above provisions show the District Clerk is essentially the agent of the trial court.
The District Clerk already possesses the data in the form the District Clerk
was directed to produce.30 It is as a result of the designation by a majority of the
Judges of District Court of Montgomery County, Texas, that the District Clerk is
the official who handles juror data and is designated as the official in charge of the
Montgomery County Jury Selection Process. In this specific capacity, the District
Clerk is under the direction of the District Judges and this designation was made
under the provision of Section 62.011 of The Texas Government Code.
2. The District Clerk consented to the District Court’s personal
jurisdiction.
Not only is the District Clerk the agent of the District Court Judges, but the
District Clerk waived any argument to jurisdiction over her office when she filed
31
her Motion for Protective Order and when she appeared through counsel at the
29
Appendix C (the Plan), (B), (E), and (F).
30
Appendix C (The plan) (F)
31
Appendix E (Motion for Protective Order)
22
hearing on May 21, 2014. See Ins. Corp. of Ir. v. Compagnie Des Bauxites De
Guinee, 456 U.S. 694, 703 (U.S. 1982).
3. The electronic data ordered to be produced, already exists.
The Trial Court’s Order states:
“IT IS ACCORDING ORDERED that the District Clerk of Montgomery
County produce to the experts appointed by this Court in this cause, to-wit:
Dr. Karl Eschbach, and Mr. Max Beauregard, the address data of all jurors
summoned for jury duty during the calendar year 2013 in electronic form.
...” 32
The August 4, 2014 Order provided only the address data of all jurors
summoned be given to the experts. The Order further stated that the experts must
execute confidentiality agreements to ensure the data will only be used for the
expert’s limited purpose of determining whether there is a systematic exclusion of
African-American citizens from jury service in Montgomery County, Texas. The
address data of all prospective jurors who were summoned during 2013 already
exists. Section F of the Montgomery County Electronic Jury Selection Plan at
page 8 of 9 provides that the “summarized jury list containing the names and
addresses of all prospective jurors summoned for each date of appearance” will be
filed with the County Clerk’s office and “A duplicate copy shall be retained by the
Jury Coordinator, to be viewed at the Judge’s discretion.” Therefore, the Trial
32
Appendix A
23
Court’s Order calling for the production of juror address data of those summoned
in 2013 already exists in an electronic format. The County Clerk and Jury
Coordinator both have a copy of the address information, although the juror’s
name must be removed, but the information already exists and should be easily
obtainable. Furthermore, the Plan provides that the Judge may view said jury list
at his discretion. Given that the address data exists and is subject to be reviewed
by the Judge (or the experts he has appointed), it is not an undue burden for the
District Clerk to produce the address data in electronic format.
C. Article 39.14 of the Texas Code of Criminal Procedure is inapplicable
case as the requested juror address data is not in possession of the
District Attorney nor any of his agents; therefore, the Trial Court did
not abuse its discretion and mandamus relief should not have issued.
The District Attorney of Montgomery County argued that the broad
discovery provision in Article 39.14 of the Texas Code of Criminal Procedure
establishes that the Trial Court cannot issue the order for juror addresses. Davis
agrees in as much as the discovery statute is not on point in this case because the
District Attorney nor any agent or representative of the State possess the address
data. The juror address data is in the possession of the District Clerk and the Code
of Criminal Procedure is not on point.
D. The Compulsory Process Clause authorizes the Trial Court’s action;
therefore, the Trial Court did not abuse its discretion and mandamus relief
should not have issued.
24
Davis further contends that under the compulsory process clause of the Sixth
Amendment to the U.S. Constitution, the trial court has the authority to issue an
order to secure petit juror information. Davis has presented evidence questioning
the fair and reasonable representation of African-Americans in the jury selection
process. The Sixth Amendment to the U.S. Constitution provides for trial by an
“impartial jury of the State and district wherein the crime shall have been
committed”. The Sixth Amendment further guarantees that a defendant may call
witnesses on his behalf and compel a witness’s presence by subpoena. Davis
argues that the compulsory process clause also guarantees that a court has the
power to issue an order for the District Clerk to produce juror address data.
E. The juror address information is needed to ensure that Defendants in
Montgomery County are tried by a Constitutionally valid jury; therefore,
the Trial Court did not abuse his discretion and mandamus relief should
not have issued.
“It is a denial of the equal protection of the laws to try a defendant of a
particular race or color under an indictment issued by a grand jury, or before a petit
jury, from which all persons of his race or color have, solely because of that race or
color, been excluded by the State, whether acting through its legislature, its courts,
or its executive or administrative officers.” Hernandez v. Texas, 347 U.S. 475, 477
(U.S. 1954). Davis’s position is not that there must be African-Americans on each
jury panel of Montgomery County, but the limited research already conducted and
25
the testimony of seasoned criminal defense attorneys in Montgomery County
shows there is a breakdown in the jury summonsing process and the address data is
needed.
The Fourteenth Amendment requires that equal protection must be given to
all. U.S. CONST. amend. XIV, § 1; Tex. Const. art. I, §§3, 19. Additionally, the
Sixth Amendment requires that the selection of a petit jury must come from a
cross-section of the community that fairly represents that community. U.S. CONST.
amend. VI. Combined, the two provisions provide every person with the right to
be tried by a jury that fairly represents the community in which he is tried.
1. The Fourteenth Amendment requires that equal protection must
actually be given to all and not merely an empty promise.
The Fourteenth Amendment requires that equal protection must be given.
U.S. CONST. amend. XIV, § 1; Tex. Const. Art. I, §§3, 19. This right is not just
another empty promise on a cherished piece of paper; it is a right that has “bite.”
“It is part of the established tradition in the use of juries as instruments of public
justice that the jury be a body truly representative of the community.” Smith v.
Texas, 311 U.S. 128, 130 (U.S. 1940). “For racial discrimination to result in the
exclusion from jury service of otherwise qualified groups not only violates our
Constitution and the laws enacted under it but is at war with our basic concepts of
26
a democratic society and a representative government. 33 Id. “The fact that the
written words of a state’s laws hold out a promise that no such discrimination will
be practiced is not enough.” Id. “The Fourteenth Amendment requires that equal
protection to all must be given – not merely promised.”
Following this line of reasoning from the United State Supreme Court as
quoted herein, it follows that just because the laws of this State set forth a
mechanism of selecting members of the Montgomery County population for the
petit jury, and those mechanisms alone do not appear to be discriminatory that does
not mean discrimination is not occurring in Montgomery County, Texas. The
Fourteenth Amendment requires that equal protection must actually be given; a
promise of equal protection is not good enough. See id. That is why it is so
important in this case for this Honorable Court to overturn the mandamus granted
by the Ninth Court of Appeals. The Trial Court found, after hearing arguments of
counsel, examining the pleadings, and hearing the testimony given, that there does
appear to be a problem with the Montgomery County jury system. The juror
address data covered by the Trial Court’s order is to investigate the jury system of
Montgomery County and to ensure that equal protection is being given to the
33
“No citizen possessing all other qualifications ... shall be disqualified for service as grand or
petit juror in any court of the Unit States, or of any State, on account of race, color, or previous
condition of servitude; ...” 18 Stat. 336, 8 U.S.C. §44.”
27
citizens of Montgomery County. This information is needed to ensure that the
Fourteenth Amendment has not been turned into an empty promise.
In this case, when the Trial Court ordered the District Clerk to give to Davis’
experts the addresses of prospective jurors summoned during 2013 under
confidentiality agreements, the Trial Court did not abuse its discretion. Instead, the
Trial Court was taking steps to ensure that the defendant is, in fact, getting equal
protection under the laws of this State. In light of the evidence from the May 2014
hearing, the Trial Court’s order allows the defense the opportunity (1) to test the
fairness of the jury summonings system of Montgomery County and (2) to prove
that the summonings system of jurors does not provide a random and fair cross-
section of the community.
2. The Sixth Amendment right to a jury trial requires selection of a petit jury
from a representative cross section of the community.
The Supreme Court of the United States has found that “the selection of a
petit jury from a representative cross section of the community is an essential
component of the Sixth Amendment right to a jury trial.” Taylor v. Louisiana, 419
U.S. 522, 528 (U.S. 1975). Encompassed among a defendant’s right to trial by
jury is the right to a petit jury that is selected “at random from a fair cross section
of the community in the district ... wherein the court convenes.” Id. at 529, citing
28 U.S.C. §1861. Having a jury that comes from a fair cross-section of the
28
community is “fundamental to the American system of justice.” Id. at 530. The
right to have a trial by jury “presupposed a jury drawn from a pool broadly
representative of the community....” Id.
In order to make a prima facie showing that the jury selection process violates
the fair cross-section of the community requirement of the Sixth Amendment, a
Defendant must show: (1) that the group alleged to be excluded is a "distinctive"
group in the community: (2) that the representation of this group in venires from
which juries are selected is not fair and reasonable in relation to the number of such
persons in the community; and (3) that this under-representation is due to systemic
exclusion of the group in the jury selection process. Missouri v. Duren, 439 U.S.
357, 364 (U.S. 1979).
In this case, the group being is excluded, African-Americans, is a distinctive
group. Ramseur v. Beyer, 983 F. 2d 1215, 1230 (3d Cir. 1992). Davis has elicited
testimony that the representation of African-Americans in the jury selection process
is not fair and reasonable considering the number of such persons in the community.
Davis sought the information ordered disclosed by the trial court show a statistical
disparity between the venire and the population of the county.
The United States of America v. Kaboni Savage, Robert Merritt, Steven
Northington, Kidada Savage, 2012 U.S. Dist. LEXIS 142844 (2012) is a federal
29
case similar to the case at hand. In that case, the African-American defendant
believed the racial makeup of the Eastern District of Pennsylvania, when compared
to Philadelphia County, did not represent a fair cross-section of the community.
Id. at 2-5. The defendant was relying on census data to show the dilution of
African-Americans, but “use of census data alone is insufficient to establish a
constitutional violation.” Id. at 12 citing United States v. Murphy, 464 F. App’x
60, 63 (3d Cir. 2012). Therefore, the defendant was seeking disclosure of a host of
things related to the jury summonsing process and the Government was refusing to
disclose any information that exposed personal information of prospective jurors.
United States of America, 2012 U.S. Dist. LEXIS 142844 at 14-16.
While analyzing the requested information in light of the law regarding a
jury selection process that violates the fair cross-section of the community
requirement of the Sixth Amendment, the Court held that making the prima facie
showing “requires a showing of a statistical disparity between the entire venire and
the population of the district.” Id. at 17 citing United States v. Weaver, 267 F.3d
231,240 (3d Cir. 2001) (“Noting that proof of a fair cross-section claim is a
‘mathematical exercise, and must be supported by statistical evidence”). A federal
statute on point “makes clear that a litigant has essentially an unqualified right to
inspect jury lists and grants access in order to aid parties in the preparation of
motions challenging jury-selection procedures.” United States of America, 2012
30
U.S. Dist. LEXIS 142844 at 18-19; See 28 U.S.C. §1867(f); See also United States
v. Test, 420 U.S. 28, 29-30 (1975). While this is “not a license for litigation to
rummage” through jury records, it does afford inspection to complete a
determination of whether the jury is being selected at random from a “fair cross-
section of the community.” United States of America, 2012 U.S. Dist. LEXIS
142844 at 19-20. While the Court held it would not provide the source lists, it did
state that the Defendant was entitled to receive “spreadsheets containing the
information he seeks.” Id. at 21.
Given that defendants have the right to be tried by a jury that fairly
represents their community, see id., in this case, the Trial Court did not abuse its
discretion when it ordered the District Clerk to turn over the address data. The
2013 address data will be used by the experts to determine if the number of
African-Americans summoned for jury process in Montgomery County reflects the
African-American population in Montgomery County. Just like in United States
of America v. Kaboni Savage, Robert Merritt, Steven Northington, Kidada Savage,
the defense in this case needs the statistical evidence to accompany the census data
it has gathered and experts it has retained. The information in the District Clerk’s
possession will either confirm or rule out a statistical disparity between the
population of Montgomery County and the entire venire.
31
The Hernandez Court said, “Circumstances or chance may well dictate that
no persons in a certain class will serve on a particular jury or during some
particular period. But it taxes our credulity to say that mere chance resulted in there
being no members of this class among the over six thousand jurors called in the
past 25 years. The result bespeaks discrimination, whether or not it was a
conscious decision on the part of any individual jury commissioner.” Hernandez,
347 U.S. at 482. Davis’s maintains that there is a systematic exclusion of African-
Americans on jury panels in Montgomery County, Texas. Davis is not claiming
that there must be a certain number of African-Americans on each panel, but given
the testimony from the May 21, 2014 hearing and the limited research already
complied by the experts, there is something wrong with the Montgomery County
jury selection process and it needs further investigation and the address data of
jurors summoned for 2013 to be provided. The mandamus conditionally granted
by the Ninth Court of Appeals should be overturned by this Honorable Court.
F. The Constitutional complaint is ripe and valid; therefore, the Trial Court
did not abuse its discretion and mandamus relief should not have issued.
At the hearing on May 21, 2014 regarding Davis’s Motion for Disclosure of
Information, the defense called nine witnesses to support disclosing the addresses
of summoned jurors to the retained experts in an effort to show there is a
demonstrable and noticeable absence of African-Americans in the jury panels of
32
Montgomery County, Texas.34 Of the nine witnesses, seven were attorneys who
practice primarily in Montgomery County, Texas, all with a lengthy history of
practicing criminal law. The sum of their testimony is that it is very rare for people
of African-American decent to appear in the jury pool. 35 Dr. Karl Eschbach
testified that if you take a jury pool of 60 people, only seven percent (7%) of those
jury pools should have no African-American representatives. 36 However, the
testimony of the lawyers who have had substantial criminal practice in
Montgomery County stated it was not uncommon to have no African-American
representatives in about fifty percent (50%) of cases tried in Montgomery
County. 37
Based on the limited information already available to Davis, there appears to
be a systematic exclusion of African-Americans in the jury selection process given
that only 7% of cases should have no African-Americans in the jury pool and the
testimony at the hearing establishes that approximately 50% of jury pools with no
African-Americans represented. Davis has used the correct procedures in this case
because he “need only allege that he is preparing a motion to challenge the jury
selection process in order to ‘avail himself of the right of access to jury selection
34
Appendix A, Reporter’s Record, Vol. 1, pg 3
35
Appendix A, Reporter’s Record, Vol 1., pg. 21-64; 99-105.
36
Appendix A, Reporter’s Record, Vol, 1, pg 80
37
Appendix A, Reporter’s Record, Vol 1., pg. 21-64; 99-105 and pg 80.
33
records’.” United States v. Royal, 100 F.3d 1019, 1025 (1st Cir. 1996).
Furthermore, Davis’s constitutional complaint is recognizable and there was
evidence produced at the hearing showing there seems to be exclusion of a
distinctive group of jurors in Montgomery County. See Duren, 439 U.S. at 364.38
1. Because Davis is not seeking information from questionnaires, his
challenge is not premature.
Davis’s claim for juror information is ripe for review. Davis is not
challenging the array in his case. The challenge is to the jury summoning process
in Montgomery County as a whole. The defense is attacking at the forefront of this
case the problems with the Montgomery County jury panels, instead of waiting for
the jury panel to walk into the court room, a recess be called and then all of this
research commence. Davis is not requesting juror information from
questionnaires; therefore, his challenge is not to the array and is not premature.
2. Evidence produced at the May 21, 2014 hearing demonstrates there is an
apparent exclusion of African-Americans in the jury summonsing process.
38
The difference in the August 4, 2014 Order from the prior order in 2013 is that this time Davis
did produce evidence at the hearing suggesting Montgomery County has a practice that results in
the exclusion of African-Americans and it could be the result of juror summons not going to the
portion of the county where the majority of this race reside. If the addresses alone are given to
the experts, they can lay that information over the 2010 census maps and see if the correct
percentage of jury summons are going to those particular areas. The address data will show
whether African-Americans are being excluded based on their location in the community.
Additionally, the claim is not prospective this time around because the information Davis seeks
is not from jury questionnaires, but rather from the summoning process itself.
34
The Order in contention requires the production of the addresses of all jurors
summoned in 2013.39 The defense made a prima facia showing at the hearing that
there is a noticeable absence of African-Americans in the jury panels of
Montgomery County. 40 Dr. Eschbach testified he believed there was at least a
basis to conduct research to investigate the under-representation of African-
Americans on jury pools in Montgomery County. 41 He further testified he has the
ability to take the address data and compare it to the 2010 census information to
conduct a scientific, statistical analysis to determine if the jurors summoned are
consistent with the representation of African-Americans in Montgomery County. 42
PRAYER FOR RELIEF
Relator respectfully requests this court to issue mandamus relief against the
Ninth Court of Appeals at Beaumont.
39
Appendix A
40
See generally Appendix A, Reporter’s Record
41
Appendix A, Reporter’s Record, Vol. 1, pg 73-74.
42
Appendix A, Reporter’s Record, Vol, 1, pg 74-75.
35
RESPECTFULLY SUBMITTED,
BRASS & McCOTTER
207 SIMONTON
CONROE, TEXAS 77301
rbrass1@yahoo.com
Tel (936) 788-5700
Fax (936) 788-5701
Rick Brass
By:_________________________________
RICK BRASS
Texas Bar No. 02909450
CERTIFICATE OF SERVICE
I hereby certify that true and correct copies of the foregoing instrument were
mailed to the Respondent and counsel for the real parties in interest on the date of
the mailing of the original to the Clerk of this Court.
Rick Brass
________________________________
RICK BRASS
36
VERIFICATION
BEFORE ME the undersigned authority this date personally appeared RICK
BRASS, who after being sworn by me did state upon his oath the following:
I, RICK BRASS, do hereby swear and affirm that the facts stated above are
true and correct based on personal knowledge.
Rick Brass
________________________________
RICK BRASS
28th
SUBSCRIBED AND SWORN TO before me this ______ day of
January
_______________ 2015.
Emily S. Knez Commission Expires 3/20/2015.30
____________________________________
NOTARY PUBLIC – STATE OF TEXAS
37
APPENDICES
Appendix A - Reporter’s Record .................................................2, 3, 4, 6, 23, 33, 35
Appendix B - Order dated 4 August 2014 signed by Judge Case .......3, 9, 10, 17, 18
Appendix C - Jury Selection Plan ............................................................4, 18, 19, 22
Appendix D - Memorandum ..............................................................................12, 13
Appendix E - Motion for Protective Order ..............................................................22
38
Appendix A - Reporter’s Record
1
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
2
TRIAL COURT CAUSE NO. 13-05-05517-CR
3
THE STATE OF TEXAS, ) IN THE DISTRICT COURT OF
4 )
)
5 )
VS. ) MONTGOMERY COUNTY, TEXAS
6 )
)
7 LEON DAVIS, )
)
8 Defendant. ) 9TH JUDICIAL DISTRICT
9
10 ***********************************************
11 HEARING ON DEFENDANT'S MOTION FOR
DISCLOSURE OF INFORMATION
12
***********************************************
13
14 On the 21st day of May, 2014, the following
15 proceedings came on to be heard in the above-entitled
16 and numbered cause before the Honorable Kelly W.
17 Case, Judge presiding, held in Conroe, Montgomery
18 County, Texas. Proceedings reported by machine
19 shorthand.
20
21
22
23
24
25
2
1 A P P E A R A N C E S
2
3 Mr. Andrew D. James
SBOT NO. 24060997
4 Mr. William J. Delmore
SBOT NO. 05732400
5 MONTGOMERY COUNTY DISTRICT ATTORNEY'S OFFICE
207 West Phillips, Second floor
6 Conroe, Texas 77301
Phone: (936) 539-7800
7 ATTORNEYS FOR THE STATE OF TEXAS
8
Mr. Stuart A. Hughes
9 SBOT NO. 24041151
MONTGOMERY COUNTY ATTORNEY'S OFFICE
10 501 North Thompson, Suite 300
Conroe, Texas 77301
11 Phone: (936) 539-7828
ATTORNEY FOR MONTGOMERY COUNTY
12
13 Mr. Rick Brass
SBOT NO. 02909450
14 BRASS & MCCOTTER
207 Simonton
15 Conroe, Texas 77301
Phone: (936) 788-5700
16 ATTORNEY FOR LEON DAVIS
17
18
19
20
21
22
23
24
25
26
3
1 I N D E X
2 VOLUME 1
3 (HEARING ON DEFENDANT'S MOTION FOR DISCLOSURE OF
4 INFORMATION)
5 Page Vol.
May 21, 2014
6
7 Proceedings 4 1
8
9 STATE'S WITNESSES
(None)
10
COUNTY ATTORNEY'S WITNESSES
11 (None)
12
DEFENDANT'S WITNESSES
13 Direct Cross Voir Dire Vol.
Lydia Clay-Jackson 21 27 1
14 E. Tay Bond 29, 36 34 1
Jerald Crow 38, 46 44 1
15 Patricia Maginnis 47 53 1
Brian Burns 56 1
16 Ray Stokes 64, 66 66 1
Karl Eschbach 68, 89 80, 83 1
17 Max Beauregard 90 1
Gilbert Garcia 99 105 1
18
19
Defendant rests 107 1
20
Both sides close 107 1
21
22 Adjournment 124 1
23 Court Reporter's Certificate 125 1
24 EXHIBIT INDEX
25 (None)
4
1 (Open Court. Defendant and all parties
2 present)
3 THE COURT: Let me -- Mr. Brass?
4 MR. BRASS: Yes, Your Honor.
5 THE COURT: Help me, get me up to speed
6 on where we are. I know I've got your application for
7 deposition. I'm trying to find in there your filings.
8 MR. BRASS: Judge, for the record, let me
9 announce that I'm formally withdrawing and abandoning
10 my request to take anyone's deposition.
11 THE COURT: Okay.
12 MR. BRASS: I'm formally withdrawing and
13 abandoning my motion to change venue.
14 THE COURT: I don't have that.
15 MR. BRASS: It's deep in one of the
16 files. It was an early motion that was part of the
17 basis for the previous ruling and that was overturned
18 by the Court of Appeals.
19 THE COURT: Okay. There is a lot in this
20 file that's tabbed.
21 MR. BRASS: Right.
22 THE COURT: So give me a second and see
23 if I can put my hands on it. Do you know about when
24 you filed that? Okay. I've got it. May 15th, 2013,
25 motion for change of venue.
5
1 MR. BRASS: Yes.
2 THE COURT: So you're withdrawing that at
3 this time?
4 MR. BRASS: Yes, Your Honor. I'm
5 abandoning and withdrawing any requests for any juror
6 questionnaire material the -- it was issues previously
7 about 600 -- I think 600 pieces of information we were
8 requesting. It was E-jury information. I'm abandoning
9 all of that. And today the only thing that I'm going
10 forward on is the pending motion to produce juror
11 address data.
12 THE COURT: Okay. Was that filed back in
13 2013 as well or is that recent?
14 MR. BRASS: It was this year I believe,
15 Judge. Give me a second. On or about November 12th of
16 '13.
17 THE COURT: Motion challenging the jury
18 summoning based on racial bias?
19 MR. BRASS: Yes, just following that
20 motion to produce juror address data.
21 THE COURT: I have it standing on its
22 own. All right. Just your application for your
23 deposition of witnesses is also been abandoned and
24 withdrawn?
25 MR. BRASS: Yes, Judge. The motion to
6
1 produce juror -- I'm sorry -- was filed March 4th,
2 2014.
3 THE COURT: I don't have my hands on that
4 one yet. Let me find it. Motion for juror address
5 data?
6 MR. BRASS: Yes, Your Honor.
7 THE COURT: Okay. Got it. Okay. So
8 that's the only motion you're moving forward on today?
9 MR. BRASS: Yes. I will also say for the
10 record that the information that I'm requesting in this
11 motion is to support and enable me to proceed on the
12 underlying motion which is challenging the jury
13 summoning process of Montgomery County based on racial
14 bias. I'm asking for the data so that I can support
15 the basis of that motion. But the purpose of the
16 hearing today in terms of what I've noticed the other
17 side is simply the production of the address data.
18 THE COURT: Okay. Who's handling the
19 case on the other side?
20 MR. HUGHES: Your Honor, Stuart Hughes
21 from the County Attorney's Office on behalf of
22 Montgomery County District Clerk's Office, specifically
23 Brenda Shank and Ed Stokes were subpoenaed to be here
24 today. I'll be speaking on their behalf. I have filed
25 something in the opposition to the motion to produce
7
1 summoned jury address data.
2 MR. JAMES: Judge --
3 THE COURT: What did you file,
4 Mr. Hughes?
5 MR. HUGHES: I filed on April 16th, 2014
6 District Clerk's response to Leon Davis' application
7 for deposition which he just withdrew. But on April
8 17th, we filed District Clerk's Motion for Protective
9 Order, Your Honor, regarding that motion to produce the
10 jury address data.
11 THE COURT: Okay. I've got a protective
12 order. All right. Anything else you filed,
13 Mr. Hughes?
14 MR. HUGHES: That's it, Your Honor.
15 THE COURT: Okay. And then next --
16 MR. JAMES: Judge, Mr. Delmore and myself
17 will be handling things on behalf of the District
18 Attorney's Office. I know we filed a few responses as
19 well. May 16th we filed State's response to Defense's
20 motion to produce juror addressed data.
21 THE COURT: Okay. May 16th.
22 MR. JAMES: And then we filed, I believe,
23 something else prior in regards to Mr. Brass's motion
24 that he's just withdrawn. So --
25 THE COURT: Well, that kind of makes it
8
1 moot.
2 MR. DELMORE: Judge, Mr. James is going
3 to do most of our advocacy today. But can I just ask
4 one quick question of Mr. Brass?
5 THE COURT: Sure.
6 MR. DELMORE: Rick, you say you're not
7 questioning any information from the juror
8 questionnaires. You just want address data. But the
9 address data you want is linked to the race of the
10 prospective jurors?
11 MR. BRASS: No. That's incorrect.
12 MR. DELMORE: You don't care what the
13 race is?
14 MR. BRASS: Correct, I do not. That's
15 not what I'm asking for.
16 MR. DELMORE: All right. Because I was
17 thinking you needed the questionnaires to get the
18 racial data. All right.
19 THE COURT: So anything else to clear up?
20 MR. BRASS: If there is some confusion on
21 their part as to what my premises is, I can cover that
22 in a very brief opening statement.
23 THE COURT: First I want to make sure
24 that I've got the motions and the responses to the
25 motions lined up so I know what the arguments are, and
9
1 then I'll be glad to hear any testimony and anything
2 else. But I'm trying to get a handle on -- this file
3 is getting a little big, and there is a lot of loose
4 filings that have been done in the last couple of
5 months. So I want to make sure I know exactly what I'm
6 addressing today. I've got your motion to produce
7 juror address data. I've got State's response to
8 defendant's motion to produce juror address data. And
9 then I've got a Montgomery County District Clerk,
10 Barbara Adamick's motion for protective order. Is that
11 all I'm addressing today?
12 MR. BRASS: Judge, I was distracted for a
13 second.
14 THE COURT: Don't get distracted,
15 Mr. Brass. I'm trying to line all this up. Motion to
16 produce juror address data, Mr. Brass. State's
17 response to defendant's motion to produce juror address
18 data, Mr. James; and Montgomery County District Clerk,
19 Barbara Adamick's motion for protective order,
20 Mr. Hughes; is that it?
21 MR. BRASS: As far as we understand, yes,
22 Judge.
23 THE COURT: Okay. All right. Mr. Brass,
24 your motion is pretty simple. You want to go ahead and
25 tell me what you're arguing for?
10
1 MR. BRASS: Judge, we believe that there
2 is a demonstrable and apparent disproportionate number
3 of citizens of African-American decent on our jury
4 panels. We do not know why that is occurring. We have
5 come up with a hypothesis that the reason black members
6 are not showing up on the jury panel is because there
7 is a defect in the way jurors are summoned. In order
8 to find out if that hypothesis is correct, if it can be
9 demonstrated scientifically, we are asking for the
10 district clerk to produce electronically the data of
11 the summoned jurors for the year 2013. It is our
12 intention -- we have experts here to testify about
13 this -- that with that data we can overlay that data on
14 to the 2010 census data, and the scientists will be
15 able to discern whether the jury summoning process is
16 racially neutral. And the only way to do that is with
17 this electronic data. We are drawing a distinction
18 between confidential juror information and electronic
19 summoned juror address data. We believe that the
20 clerks that are here to testify will testify that the
21 jurors are summoned through an electronic data system,
22 perhaps through an outside vendor and that jurors are
23 summoned through the mail; and therefore, the data that
24 we're seeking exists. We're not asking anybody to
25 create it. We are simply asking them to share it with
11
1 us. We believe they have it. We believe that the laws
2 of our state and our constitution and the case law
3 support that we should be able to get it if we ask for
4 it.
5 THE COURT: I have a feeling I'm missing
6 a key element of what you're asking for because right
7 now I don't see a distinction between what you're
8 asking for now and what you asked for a year ago that
9 was shot down by the Court of Appeals.
10 MR. BRASS: We are not asking for any
11 information that is collected as part of the jury
12 selection process.
13 THE COURT: Okay.
14 MR. BRASS: That's what they focused on.
15 The confidential nature of information that the
16 prosecutor, the Court, and clerk collect as part of the
17 jury selection process. We are focused on the jury
18 summoning process that the federal case law supports
19 that a defendant is guaranteed the right to have his
20 case tried in a system where the jury summoning process
21 is racially neutral. If there is a class of citizens
22 being systemically excluded for any reason, then that
23 is illegal. The only way for us to find the answer to
24 the question, "Is that happening here in Montgomery
25 County" is to obtain this electronic address data and
12
1 apply it to the population data that our experts
2 possess. So I think it's a very significant,
3 important, and demonstrable distinction between what I
4 had asked for before that the Court of Appeals didn't
5 agree with. We've modified it, we backed up, we've
6 abandoned the motions on the record that I told you we
7 abandoned. And we are taking what we believe is a more
8 appropriate approach to tackle the problem that we
9 believe exists. And we believe that we're within the
10 statutory limitations for obtaining the data.
11 Does that clarify, Judge?
12 THE COURT: It does, yes. Thank you.
13 Just to keep it in order, Mr. Hughes, do you want to
14 respond to that?
15 MR. HUGHES: Yes, Your Honor, I do.
16 THE COURT: Go ahead.
17 MR. HUGHES: Our response is simple, Your
18 Honor. I'm not sure the authority that Mr. Brass is
19 relying upon, but this does sound like the exact same
20 thing that was tried before. Specifically Texas
21 Government Code 62.0132 regards jury summons
22 questionnaires, and it is specifically about exactly
23 what Mr. Brass is seeking to obtain: Jury address
24 information of summoned jurors. It specifically says
25 that a jury summons includes a questionnaire. The
13
1 questionnaire requires, among other things, residence,
2 address, mailing address. And it further says that
3 that is confidential. That information has limited
4 disclosure to the court personnel, litigants, or
5 litigant's attorney in a cause of action in which the
6 respondent to the questionnaire is a potential juror.
7 So based on that statute, I believe it applies to
8 exactly what Mr. Brass is asking. The jury address
9 information is confidential. This is not regarding the
10 jury selection process that Mr. Brass referred to. I
11 believe that was the Code of Criminal Procedure 35.29,
12 I believe. Something like that. That actually says,
13 "Jury selection process." This statute does not say
14 that. It talks specifically about information
15 contained within the questionnaire part of the summons
16 for jurors is confidential unless the cause of action
17 is pending before that lawyer -- and here it's
18 premature. The trial hasn't been called as far as I
19 know. There's not a jury impaneled. So we are relying
20 our argument on that, that his motion for this
21 information should be denied.
22 THE COURT: What section were you quoting
23 in the Government Code? 62 what?
24 MR. HUGHES: 62.0132, Your Honor.
25 THE COURT: Okay.
14
1 MR. HUGHES: In addition, Your Honor, the
2 county would like to submit and offer the evidence the
3 Montgomery County electronic jury selection plan and
4 give it to Mr. Brass just so the Court and everybody is
5 aware of the policy the county has in summoning jurors.
6 THE COURT: Okay.
7 MR. HUGHES: May I approach and offer it
8 at this time?
9 THE COURT: Yes.
10 MR. HUGHES: Any objection, Mr. Brass?
11 MR. BRASS: Judge, this has been going on
12 for a year now. So today is the first day that's being
13 offered to me? It's certainly not timely in the sense
14 that I can absorb it in few short moments. And -- but,
15 I mean, he can offer anything he wants. That's fine.
16 But in terms of --
17 MR. HUGHES: This is what Mr. Brass
18 wants. I'm trying to give it to him, Your Honor. It'S
19 public record. He has opportunity to get it for
20 himself.
21 MR. BRASS: What I want is address data,
22 electronic address data, not what the county policy is.
23 I'm very interested in knowing what the county policy
24 is. But, again, I think it's a little untimely on the
25 day of our hearing to present it.
15
1 THE COURT: All right. Distribute a copy
2 to Mr. Brass and bring one to me. Mr. James, you want
3 to make an opening?
4 MR. JAMES: Very briefly, Judge.
5 Essentially we would object to having this hearing on
6 the grounds of, one, that this issue is not yet ripe.
7 THE COURT: Well, I'm not going to listen
8 to that. We're having the hearing. So what's next?
9 MR. JAMES: The defense is basically
10 still attempting a fishing expedition on this, Judge.
11 What Mr. Brass is asking for now is piece meal of what
12 he asked for initially. He is asking for juror address
13 data. I'm sure we'll be back here later on, on the
14 things he asked for later already.
15 MR. BRASS: May I respond, Judge?
16 THE COURT: Well, it's opening. You
17 don't need to respond. Let me review some things real
18 quick. I'm -- Mr. Brass, I'm trying to get my head
19 around what you're telling me is different. I'm just --
20 I'm not there. It seems like what you're asking for --
21 let me see if I can put it into words, and you can
22 understand my difficulty. I understand you're not
23 pulling the addresses off the questionnaire. That's
24 not what you're asking to be done. Where are you
25 asking -- where are these addresses? Where are they
16
1 going to come from?
2 MR. BRASS: Part of the reason that
3 previously I had filed the motion to take a deposition,
4 which they so vehemently opposed, was to discern in
5 what form the information that I'm seeking lives. But
6 I decided since they were so opposed to that, that in a
7 hearing such as today we could pursue -- you, the
8 Court, both sides, could discern that information from
9 the witness stand and a deposition was not necessary.
10 I believe that in a computer there is electronic data
11 that is furnished to an outside vendor for the purpose
12 of summoning jurors. So I believe the District Clerk's
13 Office delivers to an outside vendor a list of names
14 and addresses. And I believe that those people who
15 understand computers better than I can extract from
16 that data that already exists simply the list of
17 addresses. My experts will testify --
18 THE COURT: So to kind of put this in
19 terms of a judge's -- a layman's understanding, there
20 is a body of data that contains the addresses of
21 everybody that could potentially -- no?
22 MR. BRASS: Not potentially. Were
23 summoned.
24 THE COURT: Who were summoned?
25 MR. BRASS: Who were summoned. Again, I
17
1 predict that the testimony from the clerks that were
2 present will say that they may be able to shed some
3 light on how that list comes into existence. I'm
4 thinking it comes from driver's license and voter
5 registration. Or I've heard that is where it comes
6 from. But nevertheless at some point in time somebody
7 mailed to a large number of citizens of Montgomery
8 County a jury summons. And what I want to do is be
9 able to take that address data -- my demographers will
10 tell you that they can put it into a software program
11 that will pinpoint all those addresses on a demographic
12 chart and overlay that to the census data of where the
13 black citizens live. And they will scientifically be
14 able to tell this Court and the courts that review what
15 happens here today and in the future whether those jury
16 summons are being sent out in a racially neutral
17 manner. We know -- and the six lawyers that I
18 subpoenaed today anticipate to testify that there is a
19 demonstrable and obvious disproportionate number of
20 black Americans on our jury panels. The question is
21 why. If our system is not racially neutral, then there
22 is something wrong with it and it needs to be fixed.
23 This defendant and all defendants have a right to know
24 that. The only way that they can find that out is by
25 having the keepers of this information give it to the
18
1 experts who can analyze it to make the determination as
2 to whether our system is racially neutral. There may
3 very well be a different explanation for why our juries
4 are obviously unrepresentative of our population. It
5 may be sociological reasons. And if so, then I would
6 be the first to admit that Montgomery County's jury
7 summoning system is not effective or legal. But if
8 overlaying the data we find out that the summons are
9 not going to the black part of our -- the part of our
10 community where the black residents live, then we have
11 a racially-bias jury summoning system. And according
12 to the case law, that is illegal. The only way a
13 defendant can find this out is if the keepers of the
14 information share it with us in a careful confidential,
15 delegate manner. I'm going to propose in our hearing
16 that the expert demographers sign confidentiality
17 agreements to protect this data and respect it, give it
18 the due respect that it deserves, and conduct this
19 analysis professionally, scientifically. But if this
20 Court and the reviewing courts and these government
21 attorneys preclude defendants from accessing the data
22 that they have, then we can't answer the question as to
23 why our juries are unrepresentative of our population
24 racially. And I submit to you, as we all know, that a
25 juror questionnaire comes from when a panel is seated
19
1 in a particular court and hands in this government code
2 where we have these rules about only the judge of that
3 particular court can give that information to an
4 attorney, party, the media upon showing of good cause.
5 It does not apply because that's not the data that I'm
6 asking for. I'm -- the data that I'm asking for is
7 before that happens. There is no court that these
8 jurors belong to. This is the data that the county
9 uses to summon the jurors. If we are summoning the
10 appropriate number of black persons to jury duty, then
11 my motion challenging the jury summoning process is
12 without basis. But until we get data and do the
13 analysis, we just don't know that. I respect the
14 prosecutor's anticipating what I may do next, but I
15 submit to you that that is an assumption without basis.
16 They don't know what I'm going to do next. And I would
17 commit to this Court that I'm not going to do anything
18 that is not consistent with the authority that a
19 defense attorney is bestowed in defending a defendant
20 zealously.
21 THE COURT: Who is your first witness?
22 MR. BRASS: Sir?
23 THE COURT: Who is your first witness?
24 MR. BRASS: I call Lydia Clay-Jackson.
25 THE COURT: Already have everybody sworn
20
1 in? How are we going to do this?
2 MR. BRASS: My intention is six lawyers
3 first, then the two clerks and then the experts.
4 THE COURT: Everybody that's going to
5 testify, raise your right hand.
6 (Witnesses present sworn)
7 THE COURT: Mr. Brass, call your first
8 witness.
9 MR. JAMES: Judge, we ask that the Rule
10 be invoked.
11 THE COURT: The Rule is invoked. For
12 those of you that are non-lawyers, you cannot discuss
13 the case. You cannot discuss any testimony you may
14 have about the case with any of the other witnesses.
15 You can't even do it with other witnesses if other
16 lawyers are around. You can, however, discuss the case
17 and your testimony with the lawyers themselves. So
18 with that, I'm going to ask everyone to be excused,
19 Mr. Brass, except for Ms. Clay-Jackson?
20 MR. BRASS: Yes, sir and our experts,
21 Judge. They qualify for exclusion.
22 THE COURT: They are excluded from the
23 Rule. So, Ms. Clay-Jackson, if you would come up and
24 have a seat.
25 Whenever you are ready.
21
1 LYDIA CLAY-JACKSON,
2 having been first duly sworn, testified as follows:
3 DIRECT EXAMINATION
4 BY MR. BRASS:
5 Q. State your name for the record, please.
6 A. Lydia Clay-Jackson.
7 Q. And, Ms. Jackson, how are you employed?
8 A. Clay-Jackson.
9 Q. I'm sorry?
10 A. I'm a lawyer.
11 Q. How long have you been a lawyer?
12 A. Since 1985.
13 Q. Tell the Court where -- geographically where
14 your primary practice is.
15 A. My primary practice is here in Montgomery
16 County. I practice all throughout the state. It's
17 about four blocks from here. And my entire career my
18 home office has always been in Montgomery County.
19 Q. Do you hold any positions with bar associations
20 or professional organizations of note?
21 A. I am former president of the Texas Criminal
22 Defense Lawyers Association. I am chair elect of the
23 State Bar Committee for Criminal Justice. I am former
24 chair of Lone Star Legal Aid Society. I'm board
25 certified in criminal law by the TDLS.
22
1 Q. Ms. Clay-Jackson, do you have experience trying
2 jury trials in Montgomery County?
3 A. Yes, I do.
4 Q. I know this is a difficult question, but could
5 you just estimate how many jury trials -- criminal jury
6 trials you've tried in Montgomery County?
7 A. I have tried criminal jury trials in Montgomery
8 County, both as a criminal defense lawyer and as a
9 prosecutor. I've tried probably in excess of 57
10 trials.
11 Q. Okay. We didn't talk about your experience
12 other than as a defense attorney. Tell us about having
13 been a prosecutor.
14 A. I was a prosecutor for 13 months in the County
15 Attorney's office when it had jurisdiction over all
16 misdemeanor cases in Montgomery County.
17 Q. And you tried jury trials in your capacity as
18 an Assistant County Attorney?
19 A. I did.
20 Q. In the trials that you've tried in Montgomery
21 County, have you had occasion to observe the presence
22 of Americans -- citizens of African-American decent on
23 the jury panels?
24 A. Infrequent, yes.
25 Q. And you are a person of African-American
23
1 descent, correct?
2 A. Yes.
3 Q. And have you a noticed a pattern during your
4 career of the numbers of citizens of African-American
5 decent on the jury panels on the cases you have tried?
6 A. If it can be described as a pattern --
7 Q. Well, let me rephrase. In your own words,
8 describe your observation of the presence of citizens
9 of African-American decent on our jury panels.
10 A. With the trials that I have participated in,
11 the number of black Americans on the jury panel
12 probably have numbered about 15.
13 Q. That's 15 out of?
14 A. About 50 to 70 cases.
15 Q. Have there been any panels where there were no
16 citizens of African-American decent on the panel?
17 A. Oh, yes. Sorry. Go ahead.
18 Q. How would you characterize quantitatively the
19 number of panels that you have observed no citizens of
20 African-American decent?
21 A. The vast majority. More than 80 percent.
22 Q. More than 80 percent of the trials that you've
23 tried, the panels contained no citizens of
24 African-American decent?
25 A. That's correct. That's since 1985.
24
1 Q. Go ahead.
2 A. The most African-Americans on any panel that I
3 can recall -- since I received the subpoena I sort of
4 thought about that -- was four out of --
5 Q. Out of a panel of how many?
6 A. That was a felony trial, so it was a panel of
7 probably 52, something like that.
8 Q. Okay. If you -- I mean, just based on the math
9 that you -- if you apply the math to the numbers you've
10 already testified to -- well, let me withdraw that
11 question. If you would assume that there is 4.3
12 percent of the population, adult population of
13 Montgomery County consists of black Americans -- I've
14 done a little chart with the math as a visual aid, not
15 as evidence. If you use the percentage of 4.3 --
16 MR. JAMES: I'm sorry. I'm going -- I'm
17 objecting. He says this isn't evidence, just a visual
18 aid; yet, he's given it to the Court as if it is
19 evidence. If it's evidence, there is no testimony to
20 support these numbers.
21 MR. BRASS: I'm not offering it as
22 evidence. I gave it to the Court so the Court can see
23 it just as if I had published it on a overhead
24 projector.
25 THE COURT: I think math is pretty much
25
1 common sense. So, I mean, it's just numbers on what --
2 is that what you've been given? Numbers?
3 MR. JAMES: Yes.
4 THE COURT: Okay. It's just numbers. Go
5 ahead, Mr. Brass.
6 Q. (BY MR. BRASS) So you can see from this visual
7 aid, Ms. Clay-Jackson, that on a panel of 60 if you
8 apply the percentage and 70, 80, 90, 100, in your
9 experience are these the types of numbers of potential
10 jurors that are summoned by the courts for trials?
11 A. For felony trials. Are you asking me if 60 is
12 a general number that we have for felony trials or 70
13 depending upon the type of trial?
14 Q. Correct.
15 A. Yes, generally.
16 Q. How many for misdemeanors?
17 A. Probably no more than 40.
18 Q. Okay.
19 A. Depending on what type of case it is.
20 Q. And, of course, this would be -- these numbers
21 would be averages obviously. So if we start with a
22 premises that there is an under representation of black
23 Americans on our jury panels relative to our population
24 and if you assume that 4.3 percent are of our adult
25 populations is black, in your experience on an average
26
1 of all 60 person panels has there been an average of
2 2.58 people of African-American decent on the panel?
3 A. Not in my experience.
4 Q. Is the -- and obviously you can see the numbers
5 increase as the number of potential jurors increases.
6 In all categories of numbers of jurors on a panel has
7 the indicated representative number fallen short on our
8 panels?
9 A. What's represented by this example?
10 Q. Yes.
11 A. The only -- I've tried two capital cases in
12 Montgomery County where the 100 jurors would even come
13 into play. No, I didn't question four black Americans
14 on that panel.
15 Q. Out of those 200 jurors, were there any
16 citizens of African-American decent?
17 A. Not that I can recall, no.
18 MR. BRASS: Pass the witness, Judge.
19 THE COURT: Let's start with keeping it
20 in order. Let Mr. Hughes go first, and then when he is
21 done it will go over to you, Mr. James. Go ahead,
22 Mr. Hughes.
23 MR. HUGHES: No questions, Judge.
24 THE COURT: Mr. James?
25 MR. JAMES: May I proceed, Judge?
27
1 THE COURT: Yes.
2 CROSS-EXAMINATION
3 BY MR. JAMES:
4 Q. Ms. Clay-Jackson, a lot of the numbers that you
5 told us you're doing this to the best of your memory,
6 right?
7 A. That's true.
8 Q. You don't have any sort of statistics that
9 you've kept over the years, anything like that?
10 A. Not that I've pulled up for this, no.
11 Q. In fact, you're having to sit there during your
12 direct testimony and try to think back to the best of
13 your knowledge about whether there may or may not have
14 been a certain number of African-Americans on the
15 panel?
16 A. That's correct.
17 Q. You're saying to the best of your knowledge you
18 don't remember that there was or wasn't, you can't tell
19 us one way or the other?
20 A. Well, on generally -- the general panels that
21 we just talked about?
22 Q. I'm talking any specific panel, you can't tell
23 us one way or the other, can you?
24 A. I probably could go back and look at my files.
25 I could.
28
1 Q. Of course, you didn't do any of that before
2 preparing to testify today?
3 A. Just cursory, sir.
4 Q. Of this 4.3 number that Mr. Brass gave to you,
5 you, of course, have no idea about how many people from
6 that percentage are eligible to serve on juries, right?
7 A. That's correct.
8 Q. So this 4.3 number may not be, in fact, the
9 number of African-Americans are eligible to serve?
10 A. That's correct.
11 MR. JAMES: Pass the witness, Judge.
12 MR. BRASS: No further questions, Judge.
13 THE COURT: May she be excused?
14 MR. BRASS: As far a we're concerned,
15 yes.
16 MR. JAMES: No objection from the State.
17 THE COURT: Thank you, Ms. Clay-Jackson.
18 Next witness, Mr. Brass?
19 MR. BRASS: I call Tay Bond.
20 THE COURT: Tay Bond.
21 MR. DELMORE: Can I be excused to use the
22 restroom?
23 THE COURT: Do we need to stop?
24 MR. DELMORE: No. Mr. James will be
25 present.
29
1 THE COURT: Okay. Here is Mr. Bond in
2 his blue jeans and tie.
3 THE WITNESS: And tie on, Judge. I have
4 previously been sworn.
5 THE COURT: All right. Get comfortable.
6 And then whenever you are ready, Mr. Brass.
7 MR. BRASS: Thank you, Your Honor.
8 E. TAY BOND,
9 having been first duly sworn, testified as follows:
10 DIRECT EXAMINATION
11 BY MR. BRASS:
12 Q. State your name for the record.
13 A. Tay Bond.
14 Q. Mr. Bond, how are you employed?
15 A. I'm employed by myself.
16 Q. And what do you do for a living?
17 A. I do criminal defense work.
18 Q. So you are an attorney?
19 A. Yes, I am.
20 Q. And how long have you been an attorney?
21 A. 1998.
22 Q. And in these years that you've been an attorney
23 in what roles have you played in our criminal justice
24 system?
25 A. I was in private practice initially. I have
30
1 been Assistant County Attorney, and I've been an
2 Assistant District Attorney. And I've been partners in
3 a firm; and I now run my own show.
4 Q. How many years were you a government lawyer?
5 A. Probably around two.
6 Q. Total?
7 A. Total.
8 Q. Okay. Have you held any note-worthy positions
9 in bar associations or any other certifications that
10 would impress us?
11 A. I don't know if it would impress you,
12 Mr. Brass. But I have been the president of the
13 Criminal Defense Bar here in Montgomery County. I've
14 been the president of the Montgomery County Bar also.
15 Q. In your career -- oh, and the geographical
16 location -- your primary geographical location of your
17 practice, where is that?
18 A. It is primarily Montgomery County, Texas.
19 Q. Have you had occasion to try jury trials in
20 Montgomery County, Texas?
21 A. Yes.
22 Q. On few or many occasions?
23 A. I would say many. I've tried probably -- since
24 December I've done six jury trials which is probably
25 more than any other criminal defense attorney or
31
1 prosecutor in this county.
2 Q. Six since December of 2013?
3 A. Of '13, yes.
4 Q. I know this is a very difficult question, but
5 could you just estimate the number of jury trials
6 you've tried in this county during your career both as
7 a private lawyer and a government lawyer?
8 A. Conservatively I would say in excess of 50
9 easily.
10 Q. 50?
11 A. In excess of 50.
12 Q. In excess. Have you -- you understand that the
13 issue for us today has to do with the representation on
14 our jury panels of citizens of African-Americans
15 decent?
16 A. Yes, sir.
17 Q. Have you had the opportunity to observe the
18 presence of African-American citizens on the jury
19 panels of the cases that you've tried?
20 A. I have from the Justice of the Peace level
21 through the county court level, through felony court,
22 absolutely, as a prosecutor and a defense attorney.
23 Q. In your own words, how would you characterize
24 the presence of citizens of African-American decent on
25 our jury panels in terms of numbers?
32
1 A. I would best answer that by example of a case I
2 tried recently in this court where I was representing
3 an African-American male. We had approximately 80
4 venire persons, and I believe there was one or none of
5 African-American decent. The only African-American in
6 the courtroom period was my client.
7 Q. Is that a typical scenario in your experience
8 for the trials you have tried?
9 A. I would say it is certainly common to have one
10 or two even on a felony venire panel of
11 African-American decent or none.
12 Q. Can you estimate the percentage of jury panels
13 in cases that you a have tried where there were none?
14 A. I would have a hard time coming up with a
15 percentage, but I can tell you that it would not be
16 surprising at all based on my experience to have a full
17 felony panel and they are not to be any
18 African-Americans on it at all. But percentage-wise I
19 don't think I can give you that.
20 Q. Okay. If I were to tell you that the experts
21 will later testify that 4.3 percent of our adult
22 population of Montgomery County are citizens of
23 African-American decent, there is a visual aid before
24 you that just simply does the math in terms of panels
25 of 60, 70, 80, 90, and 100 applying that percentage and
33
1 how many jurors it would take to be representative of
2 that population. Do you see that visual aid?
3 A. Yes, I do see it.
4 Q. So we would be talking or expressing that in
5 terms of an average. So if you had, say, two panels of
6 60 and -- so two times 2.58 is 5 thereabouts -- 5.16.
7 You can't have a .16 of a person. But, say, 5, round
8 it off, in your opinion in two panels of 60 on the
9 average are there less than five citizens of
10 African-American decent in your experience?
11 A. Absolutely. Absolutely. I've never had -- I
12 don't think I've ever had three African-Americans on a
13 panel of 60 or 70. Maybe once. Maybe once.
14 Q. In all of the trials you have tried?
15 A. To my recollection, absolutely. I don't think
16 I've ever had three on a panel.
17 Q. Have you been aware personally of an obvious
18 absence or under representation of black Americans on
19 our jury panels in this county?
20 A. That would be my opinion, and it has certainly
21 been the opinion of African-American clients that I've
22 represented.
23 MR. BRASS: I'll pass the witness, Judge.
24 THE COURT: Mr. Hughes?
25 MR. HUGHES: No, Your Honor.
34
1 MR. JAMES: May I proceed, Judge?
2 THE COURT: Yes.
3 CROSS-EXAMINATION
4 BY MR. JAMES:
5 Q. Mr. Bond, you don't know the -- you don't have
6 any statistics for the number of cases you have tried
7 and the number of African-Americans on every single one
8 of those jury panels, do you?
9 A. No, sir.
10 Q. Okay. You're just going based off your best
11 rough estimate at this point; is that fair to say?
12 A. That is correct.
13 Q. And the number -- this 4.3 number that
14 Mr. Brass has given to you, you don't know where that
15 number comes from obviously, right? He is asking you
16 to assume what his experts will testify to later?
17 A. That is correct.
18 Q. And you have no idea whether that 4.3 percent
19 of African-Americans include those that are registered
20 to vote in this county, do you?
21 A. No, I do not.
22 Q. You don't know whether that number is less and
23 how much less from the hypothetical 4.3 percent that
24 the defense is talking about?
25 A. No.
35
1 Q. Okay. Mr. Bond, you testified that you picked
2 a jury in this court with a panel of approximately 80
3 people?
4 A. Well, I think we attempted to pick one where I
5 was representing an African-American. I was
6 successful -- because there was a learned juris on the
7 bench -- in having the panel stricken because it did
8 not meet the constitutional standards for my client to
9 have a jury of his peers.
10 Q. So another panel was brought in at that point
11 and y'all picked a jury from that panel?
12 A. That is correct.
13 Q. Are you aware a jury panel in this particular
14 court from last late April, early May of 150 people
15 that had six African-Americans on that panel?
16 A. No.
17 Q. Okay. And just by going off of Mr. --
18 A. I don't think that was my case. I don't think
19 we had 100.
20 Q. That's why I'm asking if you you're aware.
21 Going off Mr. Brass's little math here, just doing the
22 math there, 4.3 percent of 150 is 6.45. So as you
23 understand --
24 A. I don't do math on the record.
25 Q. Mr. Bond, I can write it out if need be. You
36
1 understand you can't have part of a person, right?
2 A. I agree.
3 Q. So six African-Americans on a panel of 150
4 would be consistent with Mr. Brass's own numbers,
5 right?
6 A. I know you're an officer of the court and
7 you're not going to lie to me. If that's correct, then
8 that's correct.
9 Q. All right.
10 A. I need a calculator.
11 MR. JAMES: I'll pass the witness, Judge.
12 REDIRECT EXAMINATION
13 BY MR. BRASS:
14 Q. Mr. Bond, you're not saying that there is never
15 any black people on our panels; is that correct?
16 A. No, I'm definitely not saying that. I have
17 seen several, but they are unique.
18 Q. Okay. So if it was a panel of 150 with six
19 citizens of African-American decent, we're not saying
20 that that never -- you're not saying that never
21 happens, are you?
22 A. If I was picking a panel and the venire panel
23 consisted of 150 persons with six of them being black,
24 I would feel like I won the lottery in order to do my
25 jury selection.
37
1 Q. Are you saying that because that's a rare
2 occasion?
3 A. I think it would be extremely rare.
4 MR. BRASS: That's all, Judge.
5 THE COURT: Mr. Hughes?
6 MR. HUGHES: No, Your Honor.
7 THE COURT: Mr. James?
8 MR. JAMES: Nothing further for him,
9 Judge.
10 THE COURT: May he be excused?
11 MR. BRASS: Yes, Your Honor.
12 MR. JAMES: No objection.
13 THE COURT: Thank you, Mr. Bond.
14 THE WITNESS: May I be released from the
15 subpoena, Your Honor?
16 THE COURT: Yes. Go back to work. Next
17 witness?
18 MR. BRASS: Jerald Crow, Judge.
19 THE COURT: Jerald crow. I prefer him to
20 be called Colonel, so we'll stick with that. He's
21 earned it.
22 THE WITNESS: Sit here, Your Honor?
23 THE COURT: Yes, sir. Thank you.
24 Whenever you are ready, Mr. Brass.
25 MR. BRASS: Thank you, Your Honor.
38
1 JERALD CROW,
2 having been first duly sworn, testified as follows:
3 DIRECT EXAMINATION
4 BY MR. BRASS:
5 Q. State your name for the record, please.
6 A. Jerald D. Crow.
7 Q. And, Mr. Crow, do you also hold the title of
8 Colonel?
9 A. I do.
10 Q. And we've been instructed by the Court to refer
11 to you as Colonel Crow.
12 A. Thank you, Your Honor.
13 Q. And so Colonel Crow, how are you employed?
14 A. I'm self-employed as a lawyer.
15 Q. How long have you been a lawyer?
16 A. Since May 12th of 1966.
17 Q. 48 years?
18 A. 47, 48 years, yes.
19 Q. Okay. Where has been your primary geographical
20 area of practice?
21 A. Since 1977, it's been in Conroe, Texas.
22 Q. Have you held or do you hold any positions in
23 bar associations, professional organizations,
24 certifications that would impress us?
25 A. Well, I belong to numerous professional
39
1 organizations over the years. At the present, I'm -- I
2 only belong to the Texas Bar and Montgomery County Bar
3 Association, Montgomery County Criminal Defense Lawyers
4 Association. I have been president of the Montgomery
5 County Bar in the past as well as held numerous other
6 positions, administration of the bar and business. I
7 served as a military judge. I served as a municipal
8 judge in Panorama Village, Texas for about a year, sir.
9 Q. You were in the marines?
10 A. Yes, 21 years.
11 Q. Since 1977, have you been trying jury cases in
12 Montgomery County, Texas?
13 A. Yes, I have.
14 Q. And I know this is very difficult question, but
15 could you estimate for us, the Court, and the other
16 courts that will come in the future how many jury
17 trials in this county you have tried?
18 A. That's probably not possible for me to give you
19 an accurate estimate.
20 Q. Well, it's an estimate.
21 A. There are different kinds of jury trials.
22 There are murder trials, capital murder trials,
23 misdemeanors, and felony-level cases. I would say on
24 the average, not counting the capital cases, I probably
25 tried four a year would be my best estimate. And that
40
1 would be over 37 years.
2 Q. And you said not counting the capital cases?
3 A. That's correct. Picking a jury on a capital
4 case where the death penalty is involved is a much
5 different proposition.
6 Q. Okay. How many capital cases have you a tried
7 in your career in Montgomery County?
8 A. From beginning to end for death probably 12 or
9 13.
10 Q. Well, let me clarify that. I'm concerned about
11 your -- the focus of our inquiry is the observation of
12 the make up of jury panels that you had an opportunity
13 to observe in your career. So even if a trial didn't
14 go to verdict by jury, if you impaneled -- I'm trying
15 to find out just ballpark estimate how many -- the
16 magnitude of the numbers of jury panels you've had an
17 opportunity to observe.
18 A. There again, it's purely an estimate on my
19 part. As I said, personally trying cases as an
20 attorney from picking the jury to the verdict I would
21 estimate about four per year. However, it is customary
22 in our community for other attorneys to assist other
23 attorneys in picking juries even though they are not a
24 part of the jury process. And to estimate that, maybe
25 once a month.
41
1 Q. For all those years?
2 A. For all those years.
3 Q. Wow. So I did the math and four times 37 is
4 148 plus 12 capitals conservatively is 160. And then
5 you're talking about another 12 per year that you
6 assisted other lawyers?
7 A. That's correct. That's my best estimate.
8 Q. At the very most conservative approach to your
9 estimating we're somewhere around the 250 trial level,
10 does that sound right?
11 A. I accept your figure, sir.
12 Q. Okay. I want to tap into your memory and
13 your -- of your observation of the racial make up of
14 those literally hundreds of jury panels in Montgomery
15 County, and particularly the numbers of citizens of
16 African-American decent present on those jury panels.
17 A. I don't think I can give you an accurate number
18 on that, but this might -- my memory tells me that most
19 African-Americans I've seen on many jury panels in
20 which I've participated, either as picking the jury or
21 helping someone else, would be three or four. I want
22 to clarify that a little bit because there was a time
23 period in there, say, from '77 until Montgomery County
24 took over, there was much less.
25 Q. Okay. Less than three or four?
42
1 A. Yes.
2 Q. As a maximum?
3 A. As a maximum.
4 Q. Right. So let's dissect that a bit. Were
5 there many -- few or many jury panels that had no
6 African-Americans on there -- in there membership?
7 A. There were few.
8 Q. Typically, as best as you can recall -- well
9 let's just say this. You said three or four at the
10 most. Is that a typical situation that there would be
11 three or four?
12 A. That is not typical, no.
13 Q. Okay.
14 A. That's the most I've seen on any panel that I
15 have observed.
16 Q. And out of the 250 some odd, how many times did
17 you see that many citizens of African-American decent
18 as best as you can recall?
19 A. Few. Maybe -- I can't really accurately answer
20 that question, but only a few. There may have been a
21 dozen panels where I have seen that many
22 African-Americans.
23 Q. A dozen out of the hundreds?
24 A. Yes.
25 Q. Okay. Have you had occasion to see panels
43
1 where there were none?
2 A. I have.
3 Q. Did I already ask that? No. Okay.
4 A. Yes, I have seen panels with no blacks.
5 Q. And is that a typical situation where there are
6 none?
7 A. It is the usual situation, typical.
8 Q. The usual situation, typical?
9 A. In my opinion.
10 Q. Yes. I've asked the other lawyers, so I'm
11 going to ask you. Do you see the visual aid that's in
12 front of you with jury panel numbers and a percentage
13 of 4.3 percent?
14 A. I see that.
15 Q. Okay. If you would assume with me that those
16 who know much more about this than us will tell us in
17 the future that there are 4.3 percent of the Montgomery
18 County population that are Americans of
19 African-American decent. Just simply applying the math
20 to the numbers -- the various numbers of the sampling
21 of the numbers of jury panels you see that on the
22 average a panel of 60 would have two and a half people.
23 So in other words, two panels of 60 would have five.
24 Does that make sense?
25 A. Yes, sir, it makes sense.
44
1 Q. Okay. On average, a panel of a 100 would have
2 four and a third, so two panels of 100 would have
3 roughly 8 and a half statistically. Can you see that?
4 A. Yes, sir.
5 Q. Okay. So I want to ask you, in your experience
6 has the presence of African-Americans on our jury
7 panels fallen short of these numbers?
8 A. Unequivocally short.
9 Q. Unequivocally?
10 A. Yes, sir. In other words -- maybe I'm not
11 answering the question.
12 Q. It sounds like you did.
13 A. Sir?
14 Q. It sounds like you did. But go ahead.
15 A. We fall short, yes.
16 Q. Gravely short?
17 A. Unfairly short.
18 MR. BRASS: I'll pass the witness, Judge.
19 THE COURT: Mr. Hughes?
20 MR. HUGHES: No, Your Honor.
21 MR. JAMES: May I proceed, Judge?
22 THE COURT: Yes.
23 CROSS-EXAMINATION
24 BY MR. JAMES:
25 Q. Colonel Crow, the 4.3 number that Mr. Brass has
45
1 given you, you don't know how many of that percentage
2 of African-Americans that live in Montgomery County are
3 registered voters, do you?
4 A. I do not.
5 Q. You don't know how many of those people have
6 driver's licenses or on the driver's license list?
7 A. I do not.
8 Q. You don't know how -- are you aware of how
9 jurors are summoned in this county?
10 A. Generally familiar.
11 Q. You understand it's the voter registration and
12 driver's license list?
13 A. Correct.
14 Q. So you understand that this number could be
15 significantly lower than the 4.3 Mr. Brass keeps
16 bringing up, the number of potential folks who would be
17 summoned for jury duty that are eligible jurors?
18 A. I will confess I am not aware of the
19 demographic make up of the citizens of our county as to
20 how many are black, how many are white.
21 Q. You're not aware of that make up?
22 A. I'm not aware of the make up other than what I
23 see on this piece of paper.
24 Q. Of course, you can't tell us and you're just
25 giving us your best estimate in regards to whether the
46
1 jury panels throughout your career have been showing a
2 proportionate number of African-Americans on those
3 panels to the population?
4 A. I have no way to measure that.
5 Q. You haven't kept track of any numbers?
6 A. No, I have not.
7 Q. You're just going based off on estimate at this
8 point?
9 A. Experience, that's it.
10 MR. JAMES: Pass the witness.
11 REDIRECT EXAMINATION
12 BY MR. BRASS:
13 Q. Colonel Crow, if Mr. James is right and there
14 is some slight adjustment that would need to be made
15 for, in his opinion, the vast number of black Americans
16 in our county who don't have driver's licenses and are
17 not registered to vote, if there is some number. He
18 characterized it as significant, but he doesn't know
19 that. But if there does need to be some tweaking --
20 say, it's 4.1 percent of our population, from your
21 experience and your observation of our jury panels, are
22 the numbers of African-Americans on a jury panel still
23 gravely short even of an adjusted number?
24 A. In my opinion, it is short if not gravely
25 short.
47
1 MR. BRASS: That's all, Judge.
2 THE COURT: Mr. Hughes, anything?
3 MR. HUGHES: No, Judge.
4 THE COURT: Mr. James?
5 MR. JAMES: No, sir.
6 THE COURT: May Colonel Crow be excused?
7 Sounds like you're excused, Colonel.
8 Thank you. Mr. Brass, next witness?
9 MR. BRASS: Patty Maginnis, Your Honor.
10 THE COURT: Colonel, would you mind
11 asking Ms. Maginnis to step in here when you get out
12 there?
13 THE WITNESS: Yes, sir.
14 THE COURT: I don't remember, were you
15 sworn in?
16 THE WITNESS: No, sir. May I bring my
17 drink?
18 THE COURT: Sure.
19 PATRICIA MAGINNIS,
20 having been first duly sworn, testified as follows:
21 THE COURT: All right. Have a seat.
22 Whenever you are ready, Mr. Brass.
23 DIRECT EXAMINATION
24 BY MR. BRASS:
25 Q. State your name, please.
48
1 A. Patty Maginnis.
2 Q. How are you employed?
3 A. Currently self-employed at Maginnis, Pullan &
4 Young.
5 Q. What is your occupation?
6 A. Criminal defense attorney.
7 Q. How long have you been a lawyer?
8 A. Since 1997.
9 Q. Have you always been self-employed as a lawyer?
10 A. No, sir.
11 Q. What has been your work experience as a lawyer?
12 A. I worked at the County Attorney's Office for
13 Montgomery County back with Frank Brass as the elected
14 official, then I worked at the District Attorney's
15 office under Mike McDougal and Brett Ligon as a
16 prosecutor.
17 Q. When you started as a lawyer, did you start in
18 the County Attorney's Office?
19 A. Yes, sir.
20 Q. And so for the first -- how many years of your
21 career were you a government lawyer?
22 A. 14.
23 Q. And you've been a lawyer a total of 17?
24 A. Correct.
25 Q. In those 17 years, what has been the primary
49
1 geographic area of your practice?
2 A. Montgomery County, Conroe area.
3 Q. Would you say exclusively Montgomery County?
4 A. No, sir. Harris County as well.
5 Q. All right. But is it primarily Montgomery
6 County?
7 A. Yes, sir.
8 Q. Okay. Have you held any positions in bar
9 associations, professional organizations, or do you
10 possess other certifications that would impress us?
11 A. I don't know that they would impress you. I
12 think they've probably been what you've already heard
13 with other lawyers here; the Bar Association,
14 Montgomery County Bar, and then I'm a member of the
15 Montgomery County Criminal Bar and then the State Bar
16 and then TCLA. I've done some extensive training and
17 education as a municipal court judge for the duration
18 of six years, and that's probably it.
19 Q. Okay. Have you had occasion in your 17 years
20 to try jury trials in Montgomery County?
21 A. Yes, sir.
22 Q. On few or many occasions?
23 A. Many occasions.
24 Q. Now, this is a difficult question, and we all
25 have difficulty answering this question. But I want
50
1 you to do the best you can to give the Court, the
2 courts above us some idea of the number of jury trials
3 that you've tried in Montgomery County in your 17 years
4 as a lawyer?
5 A. Yes, sir. All level of offenses I'm assuming,
6 correct?
7 Q. Yes. Let me clarify. All criminal trials.
8 A. Okay. If you take into consideration the
9 generous amount of time spent at the JP level and then
10 the county courts with misdemeanors and with felonies,
11 I would say upwards 80 or so.
12 Q. Now, when you say "80 or so," are you talking
13 about 80 to 150 or talking about 80 plus some?
14 A. I feel a conservative number would be 85 -- 85
15 trials conservatively.
16 Q. Okay. Fair enough. Have you had the
17 opportunity during those 80 to 85 trials to observe the
18 racial make up of the jury panels in Montgomery County?
19 A. Yes, sir.
20 Q. And particularly we're focused on jurors on
21 jury panels who are of African-American decent.
22 A. Yes, sir.
23 Q. And do you have a belief, an opinion -- I don't
24 know how we want to characterize it -- based on your
25 observation of the numbers of people of
51
1 African-American decent present on the various jury
2 panels?
3 A. If I were to give you just an automatic answer
4 if you asked me looking at a panel, for example, in a
5 felony case where you had 60 or plus on the panel, I
6 would say my recollection is possibly around two.
7 Q. Now, when you say two, are you talking about
8 two African-Americans on every panel?
9 A. No, sir.
10 Q. All right. Have there been many -- few or many
11 panels where there have been no citizens of
12 African-American decent?
13 A. Few or many?
14 Q. On few or many occasions has there been no
15 African-Americans?
16 A. I would qualify that as many over that time
17 period.
18 Q. Correct. And go a little bit out on a limb
19 here. Based on your experience and your knowledge and
20 your interaction with the bar and your various
21 capacities that you testified to, do you believe that
22 there is a common belief in our judicial community
23 regarding the absence of African-Americans on our jury
24 panels?
25 A. Do I believe there is a common belief? When
52
1 you say "judicial community" are you the -- the legal
2 community?
3 Q. The lawyers, the courts.
4 MR. JAMES: Judge, I'm going to object.
5 Calls for speculation.
6 THE COURT: Sustained.
7 Q. (BY MR. BRASS) There is a visual aid in front
8 of you that has some mathematical --
9 A. Uh-huh.
10 Q. Examples. And the number, 4.3 percent, that's
11 utilized in those mathematicals, do you see that?
12 A. Yes, sir.
13 Q. So if you would assume with me that the
14 demographic experts herein testified that the
15 African-American population of Montgomery County is 4.3
16 percent, with the math applied to jury panels of
17 various numbers from 60 to 100 -- and of course this
18 would be an average. So if we were looking to test
19 whether the panels appropriately represent
20 proportionally the African-American population on
21 panels of 60 -- just according to the math, nothing
22 else -- you need two and a half people of
23 African-American decent to be representative. So on
24 two panels of 60, you would expect to see five. On a
25 panel of 100, you would expect to see four. On two
53
1 panels of 100, you would expect to see perhaps nine.
2 In your experience of observing the jury panels in
3 Montgomery County, do we fall short of these
4 representative numbers?
5 A. I would say in my experience on what I observe,
6 yes.
7 Q. Okay. And let me --
8 MR. BRASS: Excuse me just a minute.
9 I'll pass the witness, Judge.
10 THE COURT: Mr. Hughes?
11 MR. HUGHES: No, Your Honor.
12 THE COURT: Mr. James?
13 MR. JAMES: Yes, Judge. I'll try to be
14 brief as usual.
15 CROSS-EXAMINATION
16 BY MR. JAMES:
17 Q. Ms. Maginnis, you haven't kept track of any
18 sort of statistics of the number of jurors brought in
19 on panels on the cases you have tried, the number of
20 African-Americans on those panels, have you?
21 A. No, sir.
22 Q. Everything you are telling us today is
23 basically an approximation, just a best guess at this
24 point, right?
25 A. Based on my observing the panels and my
54
1 recollection.
2 Q. You can't tell us any specific panel had X
3 number of people on it and Y number of
4 African-Americans on it, can you?
5 A. No, sir.
6 Q. In fact, you don't know what percentage of
7 African-Americans in this county are eligible to be
8 jurors, do you?
9 A. No, sir.
10 MR. JAMES: Pass the witness.
11 MR. BRASS: Nothing further, Judge.
12 THE COURT: May she be excused?
13 MR. JAMES: No objection to that.
14 THE COURT: All right. Thank you, Ms.
15 Maginnis. Next witness Mr. Brass?
16 MR. BRASS: I want to call Gilbert
17 Garcia, but I don't know if he has arrived yet.
18 THE COURT: Okay. We're going to take a
19 little break. Judge needs a break.
20 (Brief recess)
21 (Open court. Defendant and all parties
22 present)
23 THE COURT: Okay. I think you were
24 calling your next witness.
25 MR. BRASS: I'm going to call Brian Burns
55
1 because he is here and Gilbert is not.
2 THE COURT: Were you sworn in before?
3 MR. BRASS: He was not, Judge. He was
4 here late.
5 BRIAN BURNS,
6 having been first duly sworn, testified as follows:
7 THE COURT: All right. Have a seat.
8 THE WITNESS: Thank you.
9 THE COURT: You said Mr. Garcia is not
10 here? Do you want me to have him picked up?
11 THE BAILIFF: I would love to.
12 THE COURT: I saw the twinkle in your
13 eye.
14 MR. JAMES: No objection.
15 MR. BRASS: In his defense, he was at a
16 doctor's appointment in Houston. I think Rebecca told
17 me or his office called and said he was getting here as
18 quick as he could.
19 THE COURT: Okay.
20 MR. BRASS: So we will proceed with him
21 or without him.
22 THE COURT: I understand. Okay.
23 MR. BRASS: I guess the short answer is,
24 no, I don't want him arrested.
25 THE COURT: All right.
56
1 MR. BRASS: May I proceed, Judge?
2 THE COURT: Yes.
3 DIRECT EXAMINATION
4 BY MR. BRASS:
5 Q. State your name for the record, please.
6 A. Yes, Brian Christopher Burns.
7 Q. Mr. Burns, how are you employed?
8 A. I'm a solo practitioner here in Montgomery
9 County. And, I guess, primarily practice up here, but
10 I do a lot of work in Houston. I live in Harris
11 County, so I go down there quite a bit.
12 Q. Is your office here in Montgomery County?
13 A. Yes. It's at 318 North Main, caddy corner to
14 the courthouse.
15 Q. Okay. How long have you been a lawyer?
16 A. Licensed May 5th, 2005, so almost ten years.
17 Q. And has -- since you've been licensed, has your
18 office always been located in Montgomery County?
19 A. Yes, for several years even starting -- I want
20 to say when I was 1-L I worked for Stephen Jackson, a
21 local attorney. And I worked for him I want to say
22 seven years, maybe more. And then 2008, I went out on
23 my own. So I've always either worked with Stephen
24 Jackson or on my own since I've been a lawyer.
25 Q. So you worked for Steve before you were a
57
1 lawyer and after you became a lawyer?
2 A. Yes.
3 Q. And you've been on your own for six years. So
4 between working for Steve in both capacities and your
5 own, you've actually been in our judicial system up
6 here 13 years; is that correct?
7 A. That sounds about right.
8 Q. Do you currently or have you in the past held
9 any positions in bar associations, professional
10 organizations, or have any certifications that would
11 impress us?
12 A. For I want to say two, maybe three years I was
13 the secretary of the local defense bar. The Montgomery
14 County Criminal Defense Lawyers Association, I'm the
15 current president until July. I'm a member of the
16 TCDLA, NACDL. That's about it.
17 Q. Okay. So you are the current president of the
18 Criminal Bar in Montgomery County today?
19 A. I was voted to be the president. So, yes,
20 against my will.
21 Q. In that capacity have you won awards for your
22 achievement in that capacity?
23 A. Yes. In fact, I did win an award at our annual
24 banquet now that you mentioned it.
25 Q. I'm going to go back and include the time that
58
1 you worked for Mr. Jackson up here before you were a
2 lawyer and the time you worked for him as a lawyer and
3 the time you've worked for yourself as a lawyer, those
4 13 years. Let me start with the years that you worked
5 for Mr. Jackson before you were a lawyer, did you
6 assist him and his associates in conducting jury
7 trials?
8 A. Yes, many jury trials. At the time I worked
9 with a couple of other lawyers, Jeremy Dishongh, Adam
10 Dietrich -- well, non lawyers who became lawyers --
11 Jeremy Dishongh, him and I went to school together,
12 Adam Dietrich, also a criminal lawyer, Rachel Williams,
13 all of us started there and became lawyers and prepared
14 many trials, criminal trials, civil trials, family
15 trials all working with Steve Jackson.
16 Q. I want to tap into your experience in
17 participating in jury trials in Montgomery County, the
18 selection of juries perhaps. But the opportunities
19 that you've had to observe the racial make up of the
20 jury panels in Montgomery County, are you focused on
21 that?
22 A. Yes.
23 Q. And I know this is difficult. It's been
24 difficult -- it's difficult for all of us to estimate
25 the number of those opportunities that we've had to
59
1 observe jury panels and the number of trials that we've
2 participated in. But I want you to try and give us an
3 estimate of the number of trials that you have
4 participated in jury selection.
5 A. Okay. Yeah, I was trying to think of that
6 earlier today. To the best of my recollection -- I
7 don't have an exact number -- but I want to say sitting
8 second chair with Steve Jackson, I would say 30 trials
9 whether from when I had third-year bar card until after
10 I was licensed. When I was able to practice law, I'd
11 say about 30 trials with him. I sat second with Byron
12 Hatchet, an attorney that used to practice here for a
13 number of years, probably eight or nine trials. And I
14 think I sat with John Choate and several other
15 attorneys.
16 Q. Okay.
17 A. Since 2008, I've been on my own. I'd probably
18 say ten trials.
19 Q. Now, you didn't say a number. You said nine
20 with Byron, and then you mentioned Choate; but you
21 didn't give us a number. I'm up to 49 so far.
22 A. I'd say 50 approximately to the best of my --
23 yeah.
24 Q. Just going off your testimony, at least 50?
25 A. I'd say 50 approximately.
60
1 Q. Okay. As you a sit here today, do you have a
2 recollection, impression of the racial make up of those
3 jury panels?
4 A. Yes. I think just for my observation it goes
5 without saying predominantly Caucasian. I represented
6 a lot of minorities, specifically Hispanic; and so I'd
7 like to think I'm, you know, focused on that quite a
8 bit.
9 Q. Let me direct your attention to people of
10 African-American decent --
11 A. Okay.
12 Q. -- present on those jury panels. Do you have a
13 perception of the types of numbers that you have had
14 direct opportunity to observe on your 50 trials?
15 A. Yes, just very few. And I actually was
16 thinking of a case that really stood out to me, a case
17 that I sat second with Steve on. It was in the 359th.
18 Just as an example, after we had busted a panel of
19 about 80, Judge Hamilton had brought in I want to say
20 102 jurors. I remember it being two African-Americans.
21 I mean, that's what I remember. It really stood out to
22 me. I couldn't believe there were so few.
23 Q. So out of a total of 182 jurors, there were two
24 people of African --
25 A. I don't remember how many were on the first
61
1 panel. The second panel there was 102 jurors. I can
2 remember just two African-Americans.
3 Q. Do you remember if there were any on the first
4 80?
5 A. I can't remember.
6 Q. Over all, can you recall occasions where there
7 were no citizens of African-American decent on the
8 panel at all?
9 A. Yes, many times.
10 Q. When you -- I want you to try to quantify
11 "many" either in a number or as a percentage. We know
12 that -- we already know that you didn't keep records of
13 it. But as a highly intelligent, established attorney,
14 I want your respected opinion as to -- I want you to
15 quantify the amount of jury panels that you had
16 personal opportunity to observe where there were no
17 African-American citizens.
18 MR. JAMES: Judge, I'm going to object to
19 speculation. He just said he doesn't keep any records.
20 He doesn't know. He is asking him to speculate, to
21 guess right now.
22 THE COURT: Overruled.
23 A. As far as records, the years -- I would say at
24 least, you know, when I was working with Steve and we
25 were picking juries, he had his chart and I had my
62
1 chart. I did keep records. Of course, I don't have
2 those records because they would stay with his office
3 when I left. I did keep records. Putting a percentage
4 on it, I mean, I would say it's in the single digits,
5 four percent, five percent if I'm just throwing number
6 out there.
7 Q. Four percent of what?
8 A. African-Americans or less. And total, I
9 mean --
10 Q. No. Listen to the question. Approximately how
11 many panels had no members of African-Americans on it?
12 How often do you see panels with no black people on the
13 panel?
14 A. I'd say many times. Is it the majority? I
15 can't say. But definitely very common.
16 Q. Okay. There is a visual aid there which
17 applies a percentage of 4.3 percent. And just assume
18 with me that the demographers will testify that our
19 black population is 4.3 percent of the total. And then
20 we mathematically applied that to 60, 70, 80, 90, and
21 100. And this, of course, is an average. So on an
22 average, say, two 60-member panels in order to be
23 representative according to this equation -- and the
24 State will certainly argue that it's not valid -- but
25 just for demonstrative purposes, according to these
63
1 numbers you'd have to have approximately five to be
2 representative. In your experience in this county does
3 our jury panels fall short of this representative
4 amount?
5 A. Yes.
6 Q. If, in fact, it's representative.
7 A. I would say it falls short.
8 Q. Does it fall grossly short?
9 A. Grossly short? I would say in my experience it
10 has always been short of that number.
11 Q. But by how much? Just a little bit? A lot?
12 A. By -- when you're talking such small numbers
13 one can be a lot. I would say if it's short, it's
14 short.
15 Q. Okay. As president of our bar association, are
16 you aware of a -- not sure how to characterize it -- a
17 belief, a reputation, if you will, that there is an
18 under representation of black jurors in our jury panels
19 in our county?
20 A. I would -- I mean, I guess someone who does a
21 lot of criminal defense, I would agree with that, that
22 there is a shortage. As far as, I guess, being a
23 reputation, yes, I agree with that.
24 MR. BRASS: Pass the witness, Judge.
25 MR. HUGHES: No questions, Your Honor.
64
1 MR. JAMES: No questions, Judge.
2 MR. BRASS: May I just see if Gilbert has
3 arrived, Judge? If not, we'll move on.
4 THE COURT: Sure. Thank you, Mr. Burns.
5 MR. BRASS: I'll call Ed Stokes, Judge,
6 from the clerk's office.
7 THE COURT: Okay. You've already been
8 sworn, correct?
9 THE WITNESS: Yes, sir.
10 THE COURT: Okay. Have a seat. Whenever
11 you are ready, Mr. Brass.
12 MR. BRASS: Thank you, Your Honor.
13 RAY EDWARD STOKES,
14 having been first duly sworn, testified as follows:
15 DIRECT EXAMINATION
16 BY MR. BRASS:
17 Q. State your name for the record, please.
18 A. Ray Edward Stokes.
19 Q. And you go by Ed Stokes; is that correct?
20 A. Yes.
21 Q. And how are you employed?
22 A. I'm employed as the supervisor for the jury
23 system in the District Clerk's Office.
24 Q. Mr. Stokes, I'm going to be very brief and very
25 direct. And we're going to ask you: Does there exist
65
1 electronic data that would inform an observer of that
2 data of the addresses of the jurors summoned for jury
3 duty in our county?
4 A. Yes.
5 Q. If this Court ordered the District Clerk to
6 provide the defendant's demographers, his experts, an
7 electronic data file of the jurors that were summoned
8 for jury duty in the calendar year 2013, is that
9 something you could prepare for them?
10 A. No.
11 Q. Who could do that?
12 A. I'm absolutely not positive. The IT department
13 has access to such things. I don't know how they could
14 get into it.
15 Q. Okay. But is it true that the jury summons
16 that go out go out from an electronic file?
17 A. Yes.
18 Q. Of names and addresses?
19 A. Yes, that's true.
20 Q. Okay. And, I believe, from your first answer
21 you believe that it is possible whether it's you or
22 someone else or IT to compile that data on some medium
23 such as a disk or disks or thumb drives or hard drives
24 or some computer medium that would contain just that
25 address data; is that correct?
66
1 A. Could be possible.
2 MR. BRASS: I'll pass the witness, Judge.
3 MR. HUGHES: No questions, Judge.
4 THE COURT: Okay. Mr. James?
5 CROSS-EXAMINATION
6 BY MR. JAMES:
7 Q. Mr. Stokes, is the data that have -- is that
8 what's been provided by the Secretary of State's
9 Office?
10 A. That's correct.
11 Q. Would y'all then have to isolate the -- all
12 that data for the folks that were summoned in 2013?
13 A. At our level, I couldn't do it.
14 Q. Okay. All right. And then with further having
15 to be done, then the address information would need to
16 be extracted from that information as well to get what
17 the defense is requesting, right?
18 A. Yes.
19 Q. You're saying you don't know whether it can be
20 done or not?
21 A. Not at any level I can approach.
22 MR. JAMES: I'll pass the witness, Judge.
23 REDIRECT EXAMINATION
24 BY MR. BRASS:
25 Q. Do you know either exactly or approximately how
67
1 many jurors were summoned in 2013?
2 A. Not off the top of my head. We do about 2,000
3 a week.
4 Q. 2,000 a week, 52 weeks a year?
5 A. Give or take, yes.
6 Q. So approximately 100,000 per year?
7 A. Could be. I don't remember the number off the
8 top of my head. That's a large number.
9 MR. BRASS: One moment, Your Honor?
10 THE COURT: Yes.
11 MR. BRASS: Pass the witness, Judge.
12 MR. HUGHES: No questions of this
13 witness.
14 MR. JAMES: Judge, nothing further for
15 Mr. Stokes.
16 THE COURT: Okay. May he be excused?
17 MR. BRASS: Yes, Judge.
18 MR. JAMES: No objection.
19 THE COURT: All right. Thank you,
20 Mr. Stokes. Next witness Mr. Brass?
21 MR. BRASS: Judge, and I also got what I
22 needed from Mr. Stokes. I don't need the other clerk,
23 and I would submit that she could be released as well.
24 THE COURT: Okay. Any objection?
25 MR. HUGHES: Yes, Your Honor. I'll call
68
1 her.
2 THE COURT: You'll call her?
3 MR. HUGHES: Yes.
4 THE COURT: All right. Then we'll hold
5 her until your turn comes up.
6 MR. BRASS: That's fine, Judge.
7 THE COURT: Any other witnesses?
8 MR. BRASS: Yes, Judge. I call Dr. Karl
9 Eschbach.
10 MR. BRASS: I've given our court reporter
11 his vitae so that she would have it.
12 THE COURT: Okay. I've got it. You were
13 sworn earlier?
14 THE WITNESS: Yes, I was.
15 THE COURT: Okay. Have a seat. Whenever
16 you are ready, Mr. Brass.
17 MR. BRASS: Thank you, Your Honor.
18 KARL ESCHBACH,
19 having been previously sworn, testified as follows:
20 DIRECT EXAMINATION
21 BY MR. BRASS:
22 Q. State your name for the record, please.
23 A. Karl Eschbach.
24 Q. And how are you employed Dr. Eschbach?
25 A. I'm a professor and director of population
69
1 research in the Department of Internal Medicine at
2 University of Texas Medical Branch in Galveston.
3 Q. Can you tell us a little bit about your
4 education and background, training, and experience?
5 A. I have a Ph.D in Sociology from Harvard
6 University, a post-doctoral fellowship at the Center
7 for Demography at the University of Wisconsin. And
8 then second post-doctoral fellowship at the Texas
9 Medical Branch in Galveston.
10 Q. Okay. Tell us a little bit about your
11 professional experience.
12 A. Okay. I have been -- since 1995 I've been a
13 professor. I was a professor at the University of
14 Houston, professor at the University of Texas Medical
15 Branch, professor at the Department of Demography at
16 University of Texas in San Antonio. I've taught
17 demography, research methods, statistics in sociology
18 departments and Department of Preventative Medicine and
19 Community Health and the Department of Demography.
20 I've also served as the state demographer of Texas
21 which is an appointed office. I was appointed by
22 Governor Perry on the nomination of the lieutenant
23 governor and speaker of the house to advise government
24 and government of Texas on demographic issues.
25 Q. And you served as the state demographer from
70
1 when to when?
2 A. From 2008 to 2010.
3 Q. All right. Have you published?
4 A. I have published, I believe -- I haven't
5 checked lately. I think it's 57 peer review papers
6 with over a thousand citations of scientific
7 literature.
8 Q. Have you been involved in testifying in
9 government activities in terms of redistricting?
10 A. Yes, I have testified. I think I want to say
11 twice to the legislature on the topic of redistricting.
12 I have testified many times in my official capacity as
13 state demographer to the various committees of the
14 legislature. I also in the last round did the
15 districting plan for the city of Galveston. That plan
16 was adopted.
17 Q. Okay.
18 MR. BRASS: Judge, I'm going to submit
19 Dr. Eschbach as an expert. I've furnished the State
20 with his 16-page CV. And I'll ask that if they will
21 agree that he is an expert in the field of demography.
22 MR. HUGHES: No objection from the
23 County, Judge.
24 THE COURT: Mr. James?
25 MR. JAMES: Judge, it's my understanding
71
1 that they don't need to ask the Court to do that
2 anymore. But --
3 THE COURT: No.
4 MR. JAMES: But no objection.
5 THE COURT: Okay.
6 MR. BRASS: Thank you, Your Honor.
7 Q. (BY MR. BRASS) Dr. Eschbach, did I contact you
8 approximately a year ago to enlist your assistance in
9 this project that has brought us here to the Court
10 today?
11 A. Yes, you did.
12 Q. Okay. And, in fact, is it true that you've
13 been appointed by this Court as an expert for this
14 defendant to participate in this endeavor?
15 A. That is my understanding.
16 Q. And have we met periodically over this past
17 year and discussed the various issues as they've
18 developed?
19 A. I believe we've had two face-to-face meetings
20 and several phone conferences over that period.
21 Q. And multiple e-mails, other types of
22 communication?
23 A. Yes, e-mails.
24 Q. Okay. And Max Beauregard is sitting here at
25 counsel table with us. Could you tell the Court what
72
1 his role is in relation to you and your work?
2 A. So Max has -- Mr. Beauregard has expertise in
3 UCGLS information systems and demography. I have known
4 him for, I think, 20 years going back to the University
5 of Texas. He is particularly skilled at manipulating
6 the data and the address files that might be received
7 and making comparisons of those census distributions
8 relative to the location of the African-American
9 population in the county.
10 Q. And so I have explained to you what our
11 hypothesis is and what our issue is and that is we're
12 challenging the jury summoning system in the county for
13 being racially bias. Is that your understanding of
14 what we're doing?
15 A. That is my understanding.
16 Q. Now, as your expertise exists, is it applicable
17 to the issue that I just stated? Is this within your
18 area of expertise?
19 A. It is certainly within my area of expertise,
20 yes.
21 Q. And do you, in fact, have other experience
22 dealing with racial issues in terms of components of
23 population?
24 A. Certainly my publication record, the vast
25 majority of it is concerned with issues of racial
73
1 demography, racial counting, racial distribution, yes.
2 Q. Okay. Have you done at this point an analysis
3 of the African-American population of Montgomery
4 County?
5 A. Yes, I did. It is in the 2010 census which is
6 the most recently available data for the county. I
7 determined that the adult population of the county was
8 4.3 percent African-American. 14,250 African-American
9 adults 18 years old or older in the county. And that
10 is 4.31 percent of the population -- of the adult
11 population of the county.
12 Q. Let me show you a visual aid that I prepared
13 with your assistance. And does that include the
14 numbers that you've just testified to?
15 A. Yes, the numbers I derived from the census.
16 Q. So as you've sat here this afternoon and
17 listened to the lawyers testify about their
18 observations of the jury panels in collectively vast
19 experience, do you believe that there is at least a
20 basis for the research to determine the cause or
21 possible cause of the absence of African-Americans on
22 our jury panels?
23 A. Certainly the majority of the testimony -- all
24 of the testimony was consistent with the under
25 representation of African-Americans on jury pools in
74
1 Montgomery County understanding that it was
2 impressionist. Certainly I would have concluded there
3 was good reason to fully investigate the issue further.
4 Q. You heard the representative of the District
5 Clerk's Office testify that the electronic data of the
6 addresses of summoned jurors is available. You've
7 heard that?
8 A. Yes, I did hear the representative of the
9 clerk's office say that.
10 Q. Given your -- you've heard him testify, did you
11 not, that the names and addresses are transmitted to
12 the -- on some type of electronic file, correct?
13 A. Yes.
14 Q. So with your experience with electronic files,
15 do you believe it's possible, reasonable to extract
16 just the address data from that broader amount of data?
17 A. It would certainly be possible to extract the
18 address data.
19 Q. Does the software exist such that you could
20 take that electronic data and perform an analysis in
21 comparison to the census data to determine if the
22 targets of the jury summons are racially neutral?
23 A. Yes. We could take the address data and
24 geo-code it with the term used in relationship to
25 census geography and geographic counts of racial
75
1 populations and do a statistical analysis of whether
2 the jury summons as were reflected in the address list
3 were consistent with the representation of
4 African-American in residential neighbors in Montgomery
5 County.
6 Q. If the Court orders the production of that data
7 and the other courts that review this permit that to
8 happen, do you agree to keep this data confidential and
9 only use it for the purpose that you're commissioned to
10 use it for?
11 A. I would certainly keep the data confidential.
12 This is a routine obligation of my job working at a
13 medical school to protect confidential HIPAA protective
14 and other legal data. So I am certainly well equipped
15 in terms of both the skills and the appropriate systems
16 for data security to keep that promise.
17 Q. The visual aid that I -- so the 4.3 percent
18 that we've used for the visual aid that we've asked all
19 the lawyers about, that came from your examination of
20 the census data, correct?
21 A. Yes. It comes from simple calculation of the
22 2010 census data for Montgomery County.
23 Q. Now, you've heard the prosecutor cross-examine
24 the lawyers about -- that perhaps the actual number
25 percentage would be less because of people who don't
76
1 have driver's licenses or are registered to vote as
2 being eliminated from the data base. What is your
3 response to that in terms of --
4 A. Well, it's certainly -- it is certainly
5 possible that that would be the reason for just a
6 discrepancy of the kind that we heard. I don't have
7 any information as to the composition of driver's
8 licenses or voter registrations or other sociological
9 means that the people might be excluded. But my
10 understanding of the purpose of the analysis would be
11 simply to determine whether there was, in fact, a
12 statistically equivalent representation or grossly
13 under representation of African-American residential
14 areas in the areas that we seek summons. So I could
15 not speak to the issue but would think that the work
16 that we would do with the data would help us to
17 identify whether there was an issue that needed to be
18 addressed.
19 Q. If, in fact, the exclusion of people without
20 driver's license or voter registration manifested a
21 racially biased system, the fact that they are excluded
22 for that reason wouldn't effect the fact -- I mean, if
23 they don't have a driver's license or register to vote,
24 it doesn't mean they are not citizens; is that a fair
25 assessment of the situation?
77
1 MR. JAMES: Judge, I just want to object.
2 We've had a two-part question. I don't know what he
3 would be answering at this point.
4 THE COURT: It's confusing to me at this
5 point too.
6 MR. BRASS: All right. I'll separate it,
7 Judge.
8 Q. (BY MR. BRASS) If an African-American citizen
9 didn't have a driver's license, might they still be an
10 African-American citizen?
11 MR. JAMES: Judge, I'll object. This
12 witness isn't an expert on whether somebody is
13 registered to vote or qualified to vote. He is asking
14 him to speculate. He is also asking him a legal
15 conclusion at this point.
16 THE COURT: Overruled.
17 A. Certainly persons without driver's licenses are
18 citizens. I am certainly not an attorney and can't
19 speak to the issue of eligibility.
20 Q. In your work in terms of, oh, say, making sure
21 that districting is racially balanced, does the fact
22 that a person does or doesn't have a driver's license
23 effect the constitutionality of --
24 A. It's irrelevant. Sorry. Go ahead.
25 Q. Yes.
78
1 A. It is irrelevant to any position about
2 redistricting, any questions of the population count.
3 Q. Okay. What about voter registration, does
4 that -- is that relevant to racially-balanced issues?
5 A. Again, even voter redistricting is about
6 voting, it is not relevant for determination of fair
7 racial balance in districts.
8 Q. So in your analysis of whether a process passes
9 constitutional muster, does either driver's licenses or
10 voter registration become a factor?
11 A. I would not think it would be relevant.
12 Q. In terms of your -- listening to the testimony
13 this afternoon from the lawyers about their
14 observations in terms of the numbers -- and I tried my
15 best to pin them down to numbers -- but the testimony
16 be it as it may, does it depart statistically
17 significantly enough from the numbers in our visual aid
18 to warrant further investigation?
19 A. Yes, it does.
20 Q. And is that answer unequivocal, clearly -- I
21 mean, how would you quantify it?
22 A. Again, I would have to say that each of the
23 figures that was given by the people testifying was
24 impressionistic, so it's not statistical data.
25 However, if the numbers that they are characterizing
79
1 are correct, this would imply representation -- it's
2 straightforward to calculate the percentage of jurors
3 for a given size or potential jurors in a given pool
4 based on the size of the pool as to what percentage
5 should be African-American. So a jury pool of 60 if
6 that is drawn in a random sample, about seven percent
7 of such jury pools should have no African-American
8 members and 48 percent should have three or more. At a
9 100 it's 1.2 percent of jury pools should have no
10 African-American representatives, and over 80 percent
11 it should have three or more just as a straightforward
12 calculation applying 4.31 percentage and assuming
13 random selection onto the jury pool.
14 Q. Just so that I'm sure the court reporter caught
15 your answer clearly because you said it kind of quickly
16 and not very loudly, can you repeat your
17 characterization of the under representation? How did
18 you characterize it?
19 A. Again, I entered characterization of gross
20 under representation of African-Americans on jury
21 pools.
22 Q. Gross under representation?
23 A. (Nodding head affirmatively).
24 Q. And are you testifying to that in your capacity
25 as an expert demographer?
80
1 A. Yes.
2 Q. Was there a particular part of their testimony
3 that was more significant to you in terms of your
4 statistical perception, perhaps the percentage of
5 panels that have no African-Americans?
6 A. So as I've already stated, the -- a jury pool
7 of 60, no more than seven percent of jury pools should
8 have no African-American representatives. The larger
9 jury pools, that percentage would go substantially
10 down. And I was hearing people were not -- obviously,
11 according to numbers -- but they were using a word like
12 "many," perhaps the majority; and the majority would be
13 50 percent compared to seven percent, six percent, five
14 percent.
15 Q. That was what I was referring to.
16 MR. BRASS: I'll pass the witness, Judge.
17 CROSS-EXAMINATION
18 BY MR. HUGHES:
19 Q. Doctor, just so I can understand you clearly,
20 if you were explaining the jury summons process in
21 Montgomery County, couldn't you conclude hearing the
22 summoning process that there is not a systematic
23 exclusion of a particular group?
24 A. I could not conclude that without seeing the
25 data about the pools that resulted. The statistical
81
1 calculations that I gave are very straightforward. So
2 if those numbers were not produced, I would not know
3 why. I would not infer intent or bias. I don't know
4 anything about that on the basis of my expertise. It
5 would be -- and issues of process would not get that
6 question either. The question would be whether the
7 representation of potential African-American jurors
8 reflected the presence of the African-American
9 population in Montgomery County.
10 Q. If the testimony that you learned the process
11 of the way the county summons jurors is that it's
12 random, then what significance difference does getting
13 jury address mean?
14 A. Well, random -- that maybe a two-part question.
15 It's random with respect to what list is one question,
16 whether it's a list of eligible people to serve on the
17 pools. That's something statistical analysis could
18 help us solve. What the address list would help us do
19 essentially is it is a demographic fact in this county
20 as in much of the United States that African-Americans
21 tend to live in very different areas compared to non
22 African-Americans. So that by -- we could
23 essentially -- by looking where the address summons
24 were going, we could determine whether areas that have
25 heavy concentrations of African-Americans were
82
1 statistically unrepresented in the summons that were
2 sent.
3 Q. Are you aware of the requirements by law of how
4 the Secretary of the State gives eligible jurors?
5 A. I am not.
6 Q. If you understood that the law requires that
7 the Secretary of State takes voter registration,
8 driver's license, IDs when they are compiling the
9 potential jurors in the county -- take that as a
10 fact -- and then that is generated as a program
11 randomized, how would that go out to -- how would that
12 represent an unfair population of minorities I guess is
13 my question?
14 A. So what I could testify to is the comparison to
15 the representation of adults in the population. Again,
16 I do not have any information as to the representation
17 of African-Americans in driver's license lists or voter
18 registration lists. That data is not collected for
19 either one of those processes, so I can't speak to
20 that.
21 Q. Will address data rule out other possible
22 explanations for under representation?
23 A. I'm not sure what you mean in terms of "other."
24 It would not rule out any explanation of the cause. It
25 would simply establish the fact or the nonfact of --
83
1 Q. Other things like the likelihood of
2 African-Americans to respond to a summons or --
3 A. It would not speak to issues like that. It
4 would not discriminate amongst different explanations
5 of moving from the population to the jury pool. That
6 would not be revealed by this analysis. The analysis
7 would set the stage that there is potential under
8 representations in the summons or not. It would not
9 speak to cause.
10 Q. Is there any kind of marginal error that
11 would -- that you think would be in your results?
12 A. Strictly speaking, no, in the sense that this
13 is -- we're dealing with population data rather than
14 statistics. Certainly, I would expect to apply the
15 statistical tests for assuming a certain degree -- a
16 certain degree of randomness in how the world works.
17 But strictly we're analyzing population data here, not
18 sample data. And the numbers are so large that the
19 margin of error for any statistical calculation if you
20 chose to address it in that way would be very small.
21 MR. HUGHES: Pass the witness.
22 MR. JAMES: May I proceed, Judge?
23 THE COURT: Yes.
24 CROSS-EXAMINATION
25 BY MR. JAMES:
84
1 Q. Doctor, twice when Mr. Brass was questioning
2 you I heard you talk about the need for further
3 investigation basically. Do you remember saying that?
4 A. Yes.
5 Q. And that's because you can't say one way or the
6 other whether there is or isn't any sort of issue with
7 the jury summoning process, can you?
8 A. You are correct.
9 Q. I mean, it's premature basically to say whether
10 or not there is an issue with our jury summoning
11 process and whether Mr. Davis has a jury panel that
12 doesn't fit a fair cross section of the community,
13 right?
14 MR. BRASS: Judge, I'll object because
15 that's a misstatement of the issue. We're challenging
16 the jury summoning process. It is premature to
17 challenge the array in Mr. Davis' particular jury
18 panel, and that's not what I'm doing. They think I'm
19 doing that, but it's clearly not what I'm doing. And I
20 hope that that's obvious to the Court. That's why that
21 question --
22 THE COURT: I'm following what is going
23 on, Mr. Brass.
24 MR. BRASS: -- is irrelevant, Judge.
25 THE COURT: Sustained.
85
1 Q. (BY MR. JAMES) Now, just to clarify, you don't
2 know whether there is or there isn't an issue with
3 under representation of African-Americans in the way
4 that the county currently summons jurors, correct?
5 A. I believe I would say that.
6 Q. I just want to clarify for the record. You're
7 saying that you don't know whether there is or there
8 isn't an issue?
9 A. Well, I heard testimony from a number of
10 attorneys that suggested figures suggesting a gross
11 under representation on jury pools. I do not have any
12 current information that would allow me to know
13 anything about the process.
14 Q. So absent the anecdotal evidence of what you
15 heard from people you can't say one way or another?
16 A. Without the data that is being asked for, no.
17 Q. And you don't know out of the 4.3 percent
18 according to the 2010 census of the adult population of
19 Montgomery County being African-Americans you can't
20 tell us how many of that 4.3 percent are eligible to
21 serve on juries, can you?
22 A. I don't have specific information. I have done
23 some analysis of citizenship. African-Americans are
24 over represented in the citizen population which would
25 be expected to increase.
86
1 Q. Doctor, I'm sorry. My question is pretty
2 simple. Can you tell us that information or not? Do
3 you know the percentage of that 4.3 percent that are
4 eligible to be on a jury?
5 A. I do not.
6 Q. And a lot of what the statistics that you
7 talked about today in regards to redistricting, those
8 are based off of straight population, right?
9 A. That's correct.
10 Q. They are not based off of eligible jurors,
11 right?
12 A. That's correct.
13 Q. And you know that someone who is a convicted
14 felon isn't going to be eligible to be a juror, right?
15 Are you aware of that?
16 A. I'm aware of that.
17 Q. Someone who is a convicted thief isn't eligible
18 to be a juror, right?
19 A. That's my understanding. I'm not an attorney.
20 Q. And someone who may be eligible to be a juror
21 might fall into one of the several statutory exemptions
22 that allows them from getting out of jury duty without
23 having to show up, right?
24 MR. BRASS: Judge, that's way beyond his
25 area of expertise. I'll object to that question.
87
1 THE COURT: Well, overruled to the extent
2 he has knowledge because it plays into where we are
3 going with this.
4 A. Could you, please, repeat the question?
5 Q. (BY MR. JAMES) Basically, I'll give you a
6 little bit of the law, Doctor. There are certain
7 exceptions or exemptions is the term that someone
8 can -- falls into a certain category. Say if they are
9 over 65, I believe is one of the exemptions that they
10 can say, "I don't want to serve." And they don't have
11 to. So they can get their summons in the mail and say,
12 "You know what? I'm not going in or I'm going to
13 contact and use my exemption." And then not be showing
14 up. They may be the primary caregiver for a young
15 child. That's another exemption. You can't tell us
16 the percentage of people who may be eligible for one
17 these exemptions out of these population, can you?
18 MR. BRASS: Judge, I object again because
19 it's irrelevant. That does not exclude who is
20 receiving the jury summons. We're asking for the
21 address data of the jurors that are summoned. And the
22 people that he's talking about would be included in,
23 that not excluded. So --
24 THE COURT: I understand, but I think his
25 question is still relevant with regard to the line of
88
1 inquiry we are in now. So overruled. Go ahead.
2 A. I do not have information on that.
3 Q. (BY MR. JAMES) In fact, there is other reasons
4 why somebody may not show up that may or may not be
5 summoned to jury duty such as --
6 MR. BRASS: Judge, I object to the
7 characterization that they may not show up. We are
8 asking for the jurors who are summoned. We're not
9 talking about the ones -- he's on last year's set of
10 motions.
11 THE COURT: I understand, but he has a
12 right to do this line of inquiry because of the
13 witnesses expertise. I think it's legitimate. I
14 understand the issues, Mr. Brass. I'm not getting
15 confused if that's what you're worried about. But I
16 think he has the right to ask these questionings.
17 MR. JAMES: Judge, to be fair, part of
18 the reason I'm asking this is because they have paraded
19 several attorneys in here who testified to the under
20 representations to people showing up in jury panels.
21 MR. BRASS: Well, Judge, he should have
22 asked them questions then, not my demographer.
23 THE COURT: Let's move along. Go ahead,
24 Mr. James. Next question.
25 Q. (BY MR. JAMES) So, Doctor, there is all sorts
89
1 of cultural and economic reasons why someone may not
2 show up for jury service, right?
3 A. That's correct.
4 Q. Now, bottom line is you cannot say whether
5 African-Americans are systematically excluded from jury
6 panels in Montgomery County?
7 A. No, not on the basis of the evidence I have so
8 far.
9 Q. And, Doctor, I understand that you've been
10 appointed. How much have you been paid by the county
11 for your work in this case so far?
12 A. So far, nothing. I believe I offered a
13 statement of $2,500.
14 MR. JAMES: Pass the witness.
15 MR. BRASS: My turn, Judge?
16 THE COURT: Yes.
17 REDIRECT EXAMINATION
18 BY MR. BRASS:
19 Q. Doctor Eschbach, isn't it the very data we're
20 seeking that would answer the prosecutor's question as
21 to whether there is or there isn't a racially neutral
22 system in summoning jurors?
23 A. Yes, I believe what we would find from that
24 exercise.
25 Q. If you already had the answer to that question,
90
1 we wouldn't need the data, would we?
2 A. Well, I would think not.
3 MR. BRASS: That's all, Judge.
4 THE COURT: May he be excused?
5 MR. JAMES: Fine with me, Judge.
6 THE COURT: Okay. Thank you very much,
7 Doctor. Next witness, Mr. Brass?
8 MR. BRASS: I call Max Beauregard, Judge.
9 THE COURT: I know you were already sworn
10 in, so just have a seat. Get comfortable. Whenever
11 you are ready, Mr. Brass.
12 MAX BEAUREGARD,
13 having been previously sworn, testified as follows:
14 DIRECT EXAMINATION
15 BY MR. BRASS:
16 Q. State your name for the record.
17 A. Max Beauregard.
18 Q. And how are you employed?
19 A. I'm a government professor at Houston Community
20 College and I'm an independent demographics and mapping
21 consultant.
22 Q. And do you have -- do you operate a company
23 called Demographics and GIS Consulting Services?
24 A. Yes. It's a sole proprietorship.
25 Q. Okay. And tell us a little bit about your
91
1 education and background.
2 A. I have master's in science in city planning
3 from the University of Texas in Austin and been
4 involved with the census since 1980 and been a
5 consultant since about 1995 -- no -- about 2005.
6 Excuse me.
7 Q. How long have you been a professor? Did you
8 tell me how long you have been a professor?
9 A. Five years. Six years, I guess.
10 Q. Have you been an evaluator of redistricting
11 plans?
12 A. I've looked at redistricting plans and
13 evaluated those for various -- to see what impact that
14 had.
15 Q. Have you published papers?
16 A. Newspaper articles. Eschbach and I wrote a
17 newspaper article in 2001 on suburbanization of
18 minorities, and several other newspaper articles and
19 trade publications.
20 Q. Does your work experience include work with
21 HISD?
22 A. Yes. I was there for ten years as the manager
23 of the demographics department doing enrollment
24 forecasting for students. They have 200,000 students,
25 so that was quite a task at the time.
92
1 Q. Are there similarities to that work and this
2 project that you've been involved with us for this past
3 year?
4 A. Very much so. We both -- both projects use
5 geo-coding as Eschbach mentioned which is matching the
6 address to the map; and once it's plotted on the map,
7 then you can come in and do counts and tabulations with
8 custom polygons and correlate that to census data.
9 I've done that with school data and census data,
10 particularly in forecasting school enrollment data. At
11 the lower grades we're using census counts to forecast
12 how many incoming Kinder and pre-K students are coming
13 in.
14 Q. And does all that work involve the analysis of
15 population data?
16 A. Yes, very much so.
17 Q. Do you possess -- oh, let's talk about
18 professional organizations. Are you a founding member
19 of the Texas Economic and Demographic Association?
20 A. Yes. We -- I founded this jointly with a local
21 government agency. It's a professional association
22 called Texas Economic and Demographic Association.
23 Q. And --
24 A. Did that about 1984.
25 Q. And you have been a board member for some
93
1 years?
2 A. Yes.
3 Q. Okay. This issue that -- did I contact you
4 approximately a year ago to participate in this
5 question about the jury panels of Montgomery County?
6 A. Right.
7 Q. And you -- were you appointed by this Court and
8 authorized up to $5,000 compensation for your work?
9 A. Yes, that's my understanding.
10 Q. You have been paid anything yet?
11 A. No, nor signed a contract which I found
12 interesting working for lawyers.
13 Q. In this field the only thing that's important
14 is his.
15 A. Okay.
16 Q. Okay. So have you prepared for a hearing today
17 a sample of the kinds of mapping and geo-coding that
18 has been referred to in your testimony?
19 A. Yes. I went through the census and pulled out
20 a black data by block. There are approximately 7,200
21 blocks in Montgomery County. And the racial and ethnic
22 data, there is two -- approximately 250 categories
23 which can be summed in any custom way. To define --
24 depending on how you define black, I chose non Hispanic
25 blacks. There are blacks of one race, two race, some
94
1 other race, various ways of tabloiding biracial people.
2 The census is very detailed in how it -- it surveys
3 that. Since this data is user defined, you can be
4 whatever you want to be, but it gives you lots of
5 options in terms of how you define yourself. This is a
6 very conservative count of non Hispanic blacks.
7 Q. Did you prepare these as visual aids to
8 demonstrate manifestation of your skills as opposed
9 the --
10 A. I don't know the process that we're going to
11 use. Yes, the red and yellow map are actual counts of
12 non-Hispanic blacks by block, and the other is the
13 percent of blacks per block. You have to use both.
14 Sometimes a little block can be 90 percent black, but
15 it could only be four people because the actual number
16 of people in that block is very low. So you have to
17 use both those together. The third map on the 8 and a
18 half by 11 is the sample of the geo-coding. The
19 software address manages the address to the streets.
20 And this is student data in Pearland Independent School
21 District.
22 Q. In comparing your role to this work, to Dr.
23 Eschbach's role, are you the one that's doing the leg
24 work in terms of the data?
25 A. Yes. I was surprised to hear that it could be
95
1 100,000 summons. So that's pretty good chunk of data,
2 but it's something the software can handle. A lot of
3 time there is misspellings in the address or duplicate
4 street names, that sometimes public data can be very
5 inconsistent with what the street file is. And that's
6 what you're doing is taking the individual address and
7 matching it to the street file. And there can be
8 inconsistencies there that it won't match, and then you
9 have to go in and manually verify and correct the
10 spelling or we see what the closest possible match is.
11 Q. Because you're actually doing the physical
12 processing of the data -- and you own the software that
13 does this; is that correct?
14 A. Yes. I have a software license I just upgraded
15 in January.
16 Q. And you had to purchase that software, correct?
17 A. Yes.
18 Q. And the purpose of that software is for this
19 demographic analysis?
20 A. Well, I use it for other projects to but, yes.
21 Q. Okay.
22 A. I did get the upgrade for this project.
23 Q. Is the reason that Judge allowed a 5,000 for
24 you and 2,500 for Dr. Eschbach is because you're doing
25 the hands on --
96
1 A. I believe so, yes. A lot of times correcting
2 the addresses on 100,000 rejects can be -- it's a
3 clerical task, but it can very time consuming.
4 Q. Sure. And this work that we're proposing that
5 you do should the Court give us the data, order the
6 clerk to give us the data, and the other courts agree
7 with him, is this within your area of expertise?
8 A. Very much so, yes, sir.
9 Q. This is what you do?
10 A. Right. And, again, the value is once you have
11 the dot on a map, then you can come in and count those
12 and aggregate them by block or zip code or any other
13 type needed.
14 Q. Okay. And in terms of confidentiality of this
15 data, if the Court and courts deem that we are to get
16 this data with which you do this analysis, do you
17 pledge to keep this data confidential and treat it
18 with --
19 A. Certainly. This is a standard procedure. Like
20 I said, school districts download their student data
21 base as free lunch data and disability and sensitive
22 data. So it's standard procedure to sign a
23 confidentiality.
24 Q. And you're willing to do that?
25 A. Certainly.
97
1 Q. And if you received the electronic data of the
2 summoned jurors, are you able to apply it to the census
3 data to see what the relationship is?
4 A. Yes, sir, by creating an overlay. Like you
5 said, first plotting them on the map, and then
6 overlaying them with the block data with actual counts
7 there. And, again, I chose non-Hispanic blacks, but we
8 can include other categories of blacks to, you know,
9 these categories, like I said, to include biracial
10 people. Mine does not include biracial.
11 Q. But, again, the purpose of these exhibits today
12 are just demonstrative to show what you can do?
13 A. Right.
14 Q. These aren't the actual --
15 A. Well, they are an indication of the
16 concentration. This gives us the first stab, and
17 that's the process.
18 Q. But if we get the green light on this, will you
19 and Dr. Eschbach work together to formulate the final
20 approach to the processing of the data?
21 A. Yes. Yes, and we've worked together before.
22 Q. Sure. And once that's done, will you and
23 Dr. Eschbach analyze the data together and formulate a
24 report for this Court in terms of your findings of the
25 analysis?
98
1 A. Yes, that's our purpose.
2 Q. You, your role in this, and Dr. Eschbach's role
3 in this in terms of your relative areas of expertise,
4 is it more his role to interpret the data in terms of
5 the racial implications, reasons for the results of the
6 data, whereas your role is more the mechanical part of
7 it; is that accurate?
8 A. Yes.
9 Q. So questions like: "Could there been other
10 reasons why there is a lack of representation on jury
11 panels of black African-American citizens," is that
12 within your area of expertise?
13 A. No.
14 MR. BRASS: Pass the witness, Judge.
15 MR. HUGHES: No questions.
16 THE COURT: Okay. Mr. James?
17 MR. JAMES: Judge, I don't have any
18 questions for him.
19 THE COURT: Okay. May he be excused or
20 step down?
21 MR. BRASS: Yes, Judge.
22 THE COURT: Okay. Thank you. Next
23 witness, Mr. Brass?
24 MR. BRASS: Well, Gilbert finally made
25 it, Judge.
99
1 THE COURT: Darn.
2 MR. BRASS: But I submit that his
3 testimony would be accumulative of the other witnesses.
4 But he did take the trouble to come.
5 MR. JAMES: I'll gladly cross-examine
6 him.
7 MR. BRASS: So perhaps I better put him
8 on, Judge.
9 THE COURT: Whatever you think is best.
10 MR. BRASS: Gilbert Garcia.
11 THE COURT: Let me get you sworn in
12 before you sit down.
13 GILBERT GARCIA,
14 having been first duly sworn, testified as follows:
15 DIRECT EXAMINATION
16 BY MR. BRASS:
17 Q. State your name for the record.
18 A. Gilbert Garcia.
19 Q. How are you employed, sir?
20 A. Self-employed.
21 Q. And in what occupation?
22 A. Criminal defense lawyer.
23 Q. How long have you been a lawyer?
24 A. Since 1978.
25 Q. And have you always been a criminal defense
100
1 lawyer since 1978?
2 A. I've always practiced criminal defense law, but
3 probably exclusively since the late '90s.
4 Q. You have ever been -- worked for any of the
5 prosecuting entities?
6 A. I was a assistant county attorney when I first
7 came here in '82. And then I was the head of the civil
8 section of the County Attorney's Office probably for,
9 like, a year; then I went out into private practice.
10 Q. Was that in 1983?
11 A. Possibly, yeah.
12 Q. Okay.
13 A. As best I can recall.
14 Q. Now, prior to 1983, were you involved in any
15 jury trials in Montgomery County?
16 A. No.
17 Q. So is it safe to say that your experience with
18 jury trials in Montgomery County has been over these
19 past 31 years?
20 A. Yes.
21 Q. Have you held or do you hold any positions in
22 bar associations, certifications, or other
23 accomplishments that would impress us?
24 A. I was president of the Montgomery County Bar
25 for two years. I'm thinking it was like '99 and 2000,
101
1 president of the Montgomery County Criminal Defense
2 Lawyers Association maybe like a year after that in the
3 early 2000s or the late 1990s, and board certified.
4 Q. Board certified in criminal law?
5 A. Yes, sir.
6 Q. Have you tried many jury trials in these 31
7 years in Montgomery County?
8 A. Yes.
9 Q. Oh, and in these 31 years, has your
10 geographical center of your practice been in Montgomery
11 County?
12 A. Yes. I do have other counties that I practice
13 in, but I would say over 80 percent, maybe even 90
14 percent is here.
15 Q. Okay. And have you tried jury trials in
16 Montgomery County?
17 A. Yes.
18 Q. And I know this is a difficult question, it's
19 been difficult for everybody. But to the best of your
20 recollection and your -- and as an estimate, how many
21 jury trials have you tried in Montgomery County roughly
22 and as an estimate?
23 A. I tried to put that together once, but it's
24 very difficult when you're talking about such a large
25 span of time. Earlier there were more, and it's
102
1 tapered off as life has gone on.
2 Q. You understand there are lawyers who never try
3 jury trials?
4 A. Yes.
5 Q. And there are lawyers that try them every week.
6 All I want is to put into the record where you fit in
7 this spectrum.
8 A. In the last five years I've only tried three.
9 But before that, I tried a lot. So it's just --
10 Q. You have to put us -- a lot?
11 A. Okay. When I first got into private practice,
12 obviously, when you're doing court-appointed work you
13 do more just because that's the nature of the beast. I
14 would probably say the height of my practice might have
15 been five a year, and then tapered down from that.
16 Q. You think you have a hundred trials under your
17 belt?
18 A. Oh, yeah.
19 Q. 100 plus?
20 A. Oh, yeah.
21 Q. Good enough. In these 100 plus trials, have
22 you had an opportunity to observe the racial make up of
23 the jury panels in Montgomery County?
24 A. Yes.
25 Q. And particularly focusing on the numbers of
103
1 people of African-American decent on those jury panels,
2 do you have a perception of your experience as to the
3 level of numbers of African-Americans that have been on
4 your jury panels?
5 A. Right. It appears low to me. All minority
6 representation has appeared low. Obviously when a
7 person's last name is Garcia, you're looking for
8 minority representation more than most. And I've
9 always thought it was willfully inadequate.
10 Q. And so -- okay. Have there been panels in your
11 jury trials that were totally void of any
12 African-Americans?
13 A. Yes.
14 Q. And how would you characterize the number --
15 quantify the number of panels that had no
16 African-Americans? First, I'll ask you few or many?
17 A. Many.
18 Q. And within the category of many, can you
19 quantify at all in terms of percentage, numbers? Just
20 give us some definition of your interpretation of
21 "many."
22 A. I would say almost a half had none that I can
23 recall.
24 Q. Would you agree with me that half is more than
25 seven percent?
104
1 A. Yes.
2 Q. I want to show you a visual aid that is among
3 the various visual aids. And you see that there is
4 mathematical calculations that include the number 4.3
5 percent?
6 A. Right.
7 Q. And so I don't know how long you were sitting
8 in the courtroom, but if you heard Dr. Eschbach's
9 testimony that there were 4.3 percent of the adult
10 population of Montgomery County are African-American,
11 we've just done some calculations and the various -- as
12 to various sizes of jury panels -- not all of them.
13 Obviously, misdemeanors are smaller than 60. But just
14 60 to 100, can you see the calculations of if there was
15 a population representation on panels of 4.3 percent,
16 those would be the numbers. You see that?
17 A. Got it. Okay.
18 Q. So in your experience I want to ask you if on
19 the average have you observed less than what's
20 indicated according to the percentage of the black
21 population of Montgomery County? For instance, 60 --
22 if you had two panels of 60, you would expect to see
23 five people perhaps. In your experience has there been
24 less than that?
25 A. Yes, less.
105
1 Q. And to quantify the degree of less, how would
2 you quantify it? Grossly less? Moderately less?
3 Mildly less?
4 A. Grossly less.
5 Q. And so for, you know, say, two panels of 100,
6 you would expect to see eight and a half on the
7 average. Again, would your estimation based on your
8 observations, your experience, 31 years of trying 100
9 plus cases be less, the same, more?
10 A. I would say less.
11 Q. And would you apply the same quantification,
12 grossly less?
13 A. Yes.
14 MR. BRASS: I'll pass the witness, Judge.
15 MR. HUGHES: Nothing for Mr. Garcia,
16 Judge.
17 MR. JAMES: I'll be brief, Judge.
18 THE COURT: All right.
19 CROSS-EXAMINATION
20 BY MR. JAMES:
21 Q. Mr. Garcia, you don't have any concrete numbers
22 of how many people on how many jury panels were of
23 minorities or anything like that that you can tell us
24 today, can you?
25 A. Concrete numbers wise, I probably have more
106
1 from the people that were standing in line to come in
2 on jury duty on Monday mornings.
3 Q. So --
4 A. Because my office is right across the street.
5 Q. So you can't tell us on the 100 plus jury
6 trials you said you've had how many of those -- what
7 percentage of African-Americans were and weren't on
8 those panels?
9 A. No, I couldn't tell you that. That's correct.
10 Q. You're basically going off your best memory and
11 estimation at this point; is that correct?
12 A. That would be a good way.
13 Q. I agree with you about that. In fact, you
14 don't know how many -- what percentage of the
15 African-American population in Montgomery County is
16 even eligible for jury service, do you?
17 A. No. I was just told it's 4.3 percent, but I
18 don't have any independent knowledge.
19 MR. JAMES: I'll pass the witness, Judge.
20 MR. BRASS: Nothing further, Judge.
21 THE COURT: All right. Thank you,
22 Mr. Garcia.
23 THE WITNESS: Be excused?
24 THE COURT: Yes, sir.
25 THE WITNESS: Thank you, Your Honor.
107
1 THE COURT: Next witness, Mr. Brass?
2 MR. BRASS: That's all we have, Judge.
3 THE COURT: All right. Witnesses,
4 Mr. Hughes?
5 MR. JAMES: Briefly --
6 THE COURT: Yeah, sure. Sure.
7 MR. HUGHES: Your Honor, the county has
8 decided not to call a witness.
9 THE COURT: Okay.
10 MR. JAMES: We don't have any witnesses.
11 THE COURT: All right. All parties rest.
12 I think I've got the issues pretty good in my head. I
13 don't need argument, but I have some questions for both
14 sides. And it seems like the preliminary issue --
15 well, it's two-fold. The first one is you're not
16 asking for the questionnaires. So my question to the
17 County Attorney's Office and the State is under what
18 theory would this be protected?
19 MR. HUGHES: Well, Your Honor, I'm going
20 back to government Code 62 --
21 THE COURT: Well, that's questionnaires.
22 MR. HUGHES: It says in Section F that
23 information contained in the completed questionnaire is
24 confidential.
25 THE COURT: Right. But we're not
108
1 talking --
2 MR. HUGHES: And what Mr. Brass is
3 requesting is the jury address data from the summons.
4 THE COURT: No, he is not. He is not
5 asking for the questionnaires. He is not asking for
6 the data from the questionnaires. He is asking for
7 that data base of potentially summonable jurors is what
8 I get. Am I right, Mr. Brass?
9 MR. BRASS: Yes, sir. If I might present
10 a proposed order that I might think --
11 THE COURT: Okay. So before we go off on
12 a tangent, what theory -- and I don't care who answers
13 first or whatever -- what theory is this protected
14 under if you believe it to be protected information?
15 MR. HUGHES: Your Honor, I'm referring to
16 Mr. Brass's motion to produce juror address data,
17 number four. I do not understand. What he writes
18 there is he wants to compare the U.S. census data to
19 the summoned juror address data.
20 THE COURT: Uh-huh.
21 MR. HUGHES: And you're asking what
22 protection I'm relying upon? That's 62.0132 again
23 because that's talking about juror summons. And it
24 says, "Every juror summons includes a questionnaire."
25 That contains that information and that is confidential
109
1 until he, Mr. Davis, has his trial with his jury
2 present and it be given to the attorney in that case
3 and on that matter. That's stuff he can get is my
4 argument.
5 THE COURT: Okay. State, do you agree
6 with that?
7 MR. JAMES: Yes, Judge. Article 35.29,
8 when we're talking about the -- he's trying to limit it
9 to say he just wants the juror summoning information.
10 But it all goes back to this is personal information of
11 jurors that is --
12 THE COURT: But the mandamus was very
13 clear when asking for questionnaires, and they limited
14 it to the questionnaires only. They said Mr. Brass has
15 no right to get that information. They never said
16 anything about what he is requesting now.
17 MR. JAMES: Judge, I don't believe
18 Article 35.29 is limited to questionnaires though. It
19 says, "Collected by the Court or the prosecuting
20 attorney during jury selection."
21 THE COURT: But nothing has been
22 collected. That's my point. That refers to the
23 questionnaires. This is data that's maintained or
24 produced, promulgated by the secretary of State's
25 Office and kept wherever Mr. Sloan -- was that his
110
1 name? Stokes -- wherever Mr. Stokes said it's kept.
2 This is not collected as part of that process under
3 35.29. That's what I'm understanding. Am I wrong?
4 MR. JAMES: Judge, I believe all this
5 information falls under the jury selection process
6 because they are gathering all of this to then send out
7 to jurors for jury selection so they can come here and
8 take part in jury selection.
9 MR. BRASS: Can I give you some law,
10 Judge?
11 MR. JAMES: I would like to hear from
12 Mr. Brass also. He referred to case law earlier in the
13 vague aspect of it. I'd like to know what case law he
14 is relying on so I can appropriately respond to that.
15 MR. BRASS: Fortunately for me, Judge,
16 they furnished it in their response. I can quote it.
17 THE COURT: Yeah, I mean, what case are
18 you talking about?
19 MR. BRASS: Okay. In Lacy versus State,
20 in their State's response to Defendant's motion
21 challenging the jury summoning process filed February
22 26th of 2014, they say -- the State says, "Further,
23 when a defendant challenges an array on grounds of
24 systematic exclusion of African-American citizens, it
25 is incumbent upon him to show some manner whereby
111
1 African-Americans were not included in the computer
2 base from which the panel was selected." Lacy versus
3 State, 899 Southwest Second, 284. This is their
4 response to my motion. They're citing a case that is
5 directly on point. If I can't get the data -- the
6 electronic data, how can I meet the burden of
7 showing --
8 THE COURT: We're not there yet. I got a
9 different issue for that question. The issue right now
10 is under what theory is the information you were
11 requesting protected? And so far I've heard the same
12 arguments that I heard last year that the appellate
13 court said were valid arguments, but now you have
14 changed your requests. So I'm not hearing that this is
15 protected yet. Okay. Let's move on to my second
16 issue. And you hit the nail on the head. Lacy says
17 you, Mr. Brass, have to show some manner where they're
18 included in the computer data base. It's not enough to
19 just say, we think, we hope, we're not sure. Here's a
20 problem I see. Under the doctrine of chances your
21 experts have clearly shown it can't happen the way it
22 happens. We don't know why but it violates the
23 doctrine of chances. It's not just purely by random
24 method that this is happening or purely -- I shouldn't
25 say random method. Something is happening. We don't
112
1 know what it is.
2 MR. BRASS: Correct.
3 THE COURT: So --
4 MR. BRASS: Here's the standard that I
5 think Hernandez sets out. The Rule of Exclusion, proof
6 that blacks constitute a substantial segment of the
7 population of the jurisdiction. I think I've met that
8 burden. My expert has testified that 4.3 percent of
9 the adult population of Montgomery County is
10 African-American, that some blacks are qualified to
11 serve as jurors. I think we all stipulate that that's
12 correct based on what I've heard from the State. Now,
13 in one of the cases they -- there have been -- there
14 was evidence that there were none called for jury
15 service over an extended period of time. What I
16 believe that I've demonstrated through my six lawyers
17 with unbelievable amounts of experience and numbers of
18 trials, I believe I've made a prima facie that there is
19 an under representation of African-Americans on our
20 jury panels. I think that anybody who disagrees with
21 that is comparable to the ostrich with its head in the
22 sand. It is so patently obvious. But the difference
23 between last year and this year, it's not just me
24 saying that. It's in the record. The record is clear
25 that there is something going on. It may not be a
113
1 violation of the Constitution. I submit --
2 THE COURT: That's the problem I'm
3 having.
4 MR. BRASS: But, Judge, if you don't give
5 us the data, I can't find that out. And a defendant
6 has the right to find that out.
7 THE COURT: I understand your argument.
8 MR. BRASS: They should be the first ones
9 upping this data to find out if they have a six-system
10 or not. They are charged with the responsibility --
11 THE COURT: Hang on.
12 MR. BRASS: -- Of seeking justice.
13 THE COURT: I understand. The problem is
14 the way the law is written. It's almost a catch-22.
15 You can't get there until you prove that there is a
16 problem, but you can't prove there is a problem until
17 you get there.
18 MR. BRASS: Except that we're no longer
19 asking for the prohibited items. We're asking for
20 electronic -- and I'm making a distinction between
21 electronic data and confidential juror information.
22 When it exists -- and they are saying, well, it's
23 included in the jury questionnaire. Well, you know, my
24 address is in the white pages, the yellow pages, the
25 voter registration. It might be in publicdata.com. It
114
1 may be in a lot of different places. The fact that
2 it's in one particular place that's protected doesn't
3 mean that you can't get at it in all the other sources
4 that exist in the universe. It doesn't mean that and
5 the law doesn't say that. So -- okay. They don't want
6 to give the juror information from the questionnaire.
7 Fine. I'm not asking for it. But it just so happens
8 that this data exists somewhere else where it's not
9 protected by statute. And under the cases that deal
10 with the guarantee of a defendant of a racially neutral
11 jury summoning system, it is hard for me to imagine
12 that this Court and the reviewing courts will deny this
13 defendant the right to find out if he's being denied a
14 racially neutral jury summoning system. And if the
15 Court of Appeals in Beaumont doesn't agree and the
16 Court of Criminal Appeals in Austin, I believe a
17 federal judge in downtown Houston will agree. And
18 ultimately if you sign that order, we will get the data
19 and we will keep fighting until we do.
20 THE COURT: All right. I've got
21 everybody's motions, arguments of counsel on the
22 record. Did you want to make a response?
23 MR. JAMES: Judge, yeah, I was just
24 waiting.
25 THE COURT: I'm sorry. Go ahead.
115
1 MR. JAMES: Mr. Hughes wanted to make a
2 response. Or I'll go ahead now.
3 MR. HUGHES: Go ahead.
4 MR. JAMES: Judge, just in response to a
5 few things that Mr. Brass angrily stated. There's been
6 no evidence that they've put forth about the percentage
7 of the eligible African-American jurors. They told us
8 the population. Their assertion that there is an under
9 representation isn't based off correct data at this
10 point. I understand you overruled my objection
11 earlier, Judge, but it's our position that this
12 challenge is still premature because the jury array has
13 not been seated yet. I understand Mr. Brass is talking
14 about the summoning process. But it all ultimately
15 comes down to the jury panel that is brought in
16 Mr. Davis's case. You know, the Court of Appeals held
17 that these challenges were premature. They weren't
18 ripe yet. The defense is speculating and essentially
19 fishing. Under Article 35.29, we believe this
20 information is protected. And additionally, Mr. Brass
21 has gone on and on about case law and this and that. I
22 just don't understand what authority he is relying on
23 to where the Court can order the District Clerk's
24 Office, a non-party to this case, to expend county
25 resources to isolate transferred data and do all that.
116
1 I don't know what he is relying on to say this can be
2 done.
3 So those are our various --
4 THE COURT: Well, I don't think you were
5 here last year when we dealt with those issues. Well,
6 I mean, you were here. I don't remember if you were
7 arguing for the State.
8 MR. JAMES: I wasn't involved with the
9 case.
10 THE COURT: It was more of a due process
11 argument by Mr. Brass. And the State at that point
12 tried to argue that it was over burdensome for the IT
13 folks to come in here and basically write a five-word
14 line code to pull this information out. And I didn't
15 find that to be persuasive at all. So that argument's
16 kind of moot at this point.
17 MR. JAMES: Judge, that's everything that
18 I've got. I don't know if Mr. Hughes has anything to
19 add.
20 THE COURT: Yeah. You're welcome -- I
21 didn't mean to cut you off. But, Mr. Hughes, if you've
22 got something you want me to hear, let me hear it.
23 MR. HUGHES: Judge, I think the Court's
24 made up its mind.
25 THE COURT: No, I really haven't. I want
117
1 to go look at the law and read cases.
2 MR. HUGHES: Okay. What I'm trying to
3 explain as far as the government code goes -- I wasn't
4 here at the prior hearing either. But regardless of
5 whether it's electronic data that he is requesting, I
6 think it's clear that the legislature is trying to
7 protect and deem confidential juror address
8 information. And it's clear what these two statutes
9 are talking about. So whether you're getting it
10 through electronic data, I think my argument is still
11 it's protected. It's intended to be protected because
12 it's the same information as juror address -- summoned
13 juror address information. So whether you get it off
14 of a questionnaire or data base, I think it's still
15 confidentiality.
16 THE COURT: Let me ask you this. Think
17 of it like this. My doctor has my address because he
18 does. That's protected health care information.
19 That's my personal PHI. I can't remember what that
20 stands -- protected health care information. My
21 address is also listed with the secretary of -- or the
22 Comptroller's Office. And that is freely discoverable
23 unfortunately when I filed my financial statements for
24 the year as I'm required to by the Texas Ethics
25 Commission. Anybody can have access to those financial
118
1 statements. Just because my address is protected under
2 HIPAA from my doctor doesn't mean it's protected under
3 the Comptroller's Office by public information act
4 request. So it seems -- when you're arguing it seems
5 to dove tail together, but that's only I think a
6 disingenuous way of thinking about it. It's really
7 completely separate. I don't think the statute
8 contemplates anything other than the questionnaires and
9 the data to be pulled off the questionnaires. So, I
10 guess, are you saying that it is the same? In other
11 words, whether my protected health care information is
12 where the source is from or from a Comptroller's Office
13 is still the same information and because it's
14 protected by HIPAA over here, it's still going to be
15 protected by the Comptroller's Office over here. Is
16 that what you're suggesting?
17 MR. HUGHES: Well, I think the intent is
18 the juror -- because they're jurors. Sure, you can go
19 get the jurors' address from DPS, elections, voter
20 registration. You can get that information through
21 other means. But at that point they are not the
22 jurors. It's protecting the juror information. It's
23 protecting the source of the funds and the District
24 Clerk. And, again, I don't think -- the District Clerk
25 does not have the means to get this information.
119
1 THE COURT: Well, they do.
2 MR. HUGHES: I think that's what
3 Mr. Stokes said.
4 THE COURT: Yeah, they do. We had that
5 last year. I think it was IT request, and it's a line
6 of code basically that they have to pull it out.
7 Whether or not Mr. Stokes can do it, I have no idea. I
8 think he said he can't. But our IT department has
9 access to it. They did do it very easily.
10 MR. BRASS: He testified it's available.
11 THE COURT: Yeah. I'm not saying that.
12 I'm just saying the IT department would be the one
13 doing it. Not the clerks. I'm agreeing with
14 Mr. Hughes on that.
15 MR. HUGHES: Our protective order is for
16 the District Clerk.
17 THE COURT: You just don't want them to
18 be boxed in a position, be ordered to do something they
19 can't physically do.
20 MR. HUGHES: Yes, sir.
21 THE COURT: I understand.
22 MR. DELMORE: Judge, I was present during
23 that hearing last year. I don't think there was any
24 testimony regarding how the IT department would do it.
25 No one called anyone from that department as a witness.
120
1 I think you speculated that it would merely require
2 writing a few lines of code. But I don't think that
3 that's accurate, and there's certainly no evidence to
4 support that.
5 THE COURT: Well, I'm not speculating.
6 I'm dealing with other situations where the State has
7 made that argument of this over burdensome, technically
8 impossible thing to do, and the IT department comes in
9 and writes a line of code for me and pulls the
10 information out. So if the data is there, it's not
11 hard for them to do. It's very easy. It literally is
12 one line of code, and they can pull the data out.
13 MR. BRASS: If you want to tweak the
14 order, Judge, to include the IT department --
15 THE COURT: Oh, I'm sorry. I didn't.
16 Well, I'm not going to make a ruling yet because I want
17 to look over the cases. I want to refresh my memory,
18 go back over the mandate -- excuse me -- the mandamus
19 from the Court of Appeals. I should have done that
20 before we had this today. I just haven't had a chance
21 unfortunately. So let me do that. Today is Wednesday.
22 I'll get everybody --
23 MR. BRASS: I'm sure the County Attorney
24 represents the IT department as well, Judge.
25 THE COURT: Well, yeah, of course. They
121
1 represent everybody in the county. Let me get a
2 decision to you guys by Friday at 5:00. I've got a
3 bunch of deadlines on Friday. I'll just dove tail
4 this one into the rest of them.
5 MR. BRASS: On your time. Can I bring up
6 a housekeeping issue, Judge?
7 THE COURT: Sure.
8 MR. BRASS: I would like for these visual
9 aids to somehow be included in the appellate record.
10 We know that it's going up. And it's not evidence. I
11 didn't offer it as evidence. I'm not offering it now
12 as evidence. But I think for the reviewing courts that
13 are going to be looking at this, perhaps it would be
14 helpful for them to be looking at same things that we
15 were looking at just for demonstrative purposes. If we
16 make the record clear that it's not being offered as
17 evidence, but only for demonstrative purposes, summary
18 of testimony. We do that all the time on civil side.
19 We offer financial information statements as a summary
20 of what the witnesses will testify. It's not evidence.
21 And if somehow we could -- there aren't any other
22 exhibits to differentiate. And if we could attach them
23 as simply visual aids, demonstrative purposes, my
24 feeling is it would be helpful to the reviewing court.
25 MR. JAMES: Judge, I'm going to object to
122
1 anything that Mr. Brass has said wasn't evidence that
2 he just wanted to show as a visual aid, which was
3 everything he handed the Court. I didn't object
4 earlier because it was never offered as evidence.
5 These documents as visual representations here have
6 been covered in the testimony. Additionally, they are
7 not -- they are just -- these don't represent the juror
8 information by any means. They just represent
9 potential population. I think it would be confusing
10 for the Court. If I remember correctly, the only
11 evidence that was offered, other than testimony, was by
12 Mr. Hughes in regards to the Montgomery County
13 electronic selection plan.
14 MR. BRASS: That was not offered as
15 evidence. I would certainly object to that. If they
16 want to offer it now, I'll object to it as hearsay.
17 MR. JAMES: Mr. Hughes offered it at the
18 start of the hearing, Mr. Brass.
19 THE COURT: Well, I took it up, the same
20 as I took Mr. Brass's information which is why I took
21 Mr. Brass's information. But I don't think it's been
22 offered or admitted.
23 MR. HUGHES: I'd like to reopen it at
24 this time and offer it, Judge.
25 THE COURT: I have a solution to all this
123
1 which is attach, seal it, make it part of the record
2 for appellate purposes only. Do not attach it as
3 evidence. And I'll be honest with you, Rick, I looked
4 at the maps. I don't understand them. I mean, I'm
5 sorry. I know they're meaningful to the experts, but
6 this is -- you're talking statistics here. I am an
7 algebra expert and that's about it. So --
8 MR. BRASS: I agree, Judge. That's why
9 we have them. But I would agree to what you're
10 proposing to even include the County Attorney's visual
11 aid as long as it's not evidence.
12 MR. JAMES: Judge, what Mr. Hughes
13 offered is a record of this Court, basically. I mean,
14 this was all authorized and directed by the Board of
15 District Judges back in 2009, the 9th, 221st, 359th.
16 This is a public record that we offered.
17 MR. BRASS: They never offered it.
18 MR. JAMES: He offered it at the
19 beginning of the hearing. If not, I'm offering it as
20 well.
21 THE COURT: Well, I'm going take all of
22 these, make them part of the record. It's only for
23 appellate purposes. To be honest with you, I skimmed
24 them. But I didn't consider them, and I'm not going to
25 consider them in my decision. I'm strictly going from
124
1 where we are on this other stuff. I'm also going to
2 attach Mr. Beauregard and Dr. Eschbach CVs so the
3 appellate court has everything they need to make their
4 decision. All right. And then hopefully by -- well,
5 no, by Friday I'll have a decision. I just want to
6 review some cases and want to go back over that
7 mandamus because I really should have done that before
8 today. All right. Anything else?
9 MR. BRASS: Not from us, Judge.
10 THE COURT: Let's get a reset date before
11 you leave, Mr. Brass.
12 (Proceedings concluded)
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125
1 THE STATE OF TEXAS )
2 COUNTY OF MONTGOMERY )
3 I, Rebecca Lewis, Official Court Reporter in and
4 for the 9th District Court of Montgomery County,
5 State of Texas, do hereby certify that the foregoing
6 contains a true and correct transcription of all
7 portions of evidence and other proceedings requested
8 in writing by counsel for the parties to be included
9 in this volume of the Reporter's Record, in the
10 above-styled and numbered cause, all of which
11 occurred in open court or in chambers and were
12 reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, admitted, tendered in an offer of
16 proof or offered into evidence.
17 I further certify that the total cost for the
18 preparation of this Reporter's record is $500.00 and
19 will be paid by Montgomery County DA's Office.
20 WITNESS MY OFFICIAL HAND this the 21st day of
21 August, 2014.
22 /s/Rebecca Lewis
REBECCA LEWIS, TEXAS CSR 8926
23 Expiration Date: 12/31/14
Official Court Reporter
24 Montgomery County, Texas
207 West Phillips, Suite 306
25 Conroe, Texas 77301
Appendix B - Order dated 4 August 2014 signed by Judge
RECEIVED ANO FILED
i,iiS>R RECORD
At-#-t--O'Clock'f M·
NO. 13-01-00685-CR & 1305-05517-CR AUG 04 2014
STATE OF TEXAS §
§
vs. § 9th JUDICIAL DISTRI}lll;;:P-'~;C.c;µlo~
§
LEON DAVIS § MONTGOMERY COUNTY, TEXAS
It_, ,_.
ON this 4---
PRODUCE JUROR ADDRESS DATA.
day o
ORDER
f~~O 14, came the Defendant for hearing on his MOTION TO
After hearing the evidence and argument of cotmSel, the Court hereby finds the following:
I. The Defendant has made a prima facia showing that there is a demonstrable and noticeable
absence of citizens of African American Decent in the jury panels of Montgomery County.
2. There exists a need to test whether there is a systematic exclusion of Black citizens from jury
service.
3. That the District Clerk possesses the electronic data of the addresses it sent, or had sent, juror
summons to during the calendar year 2013.
4. The District Clerk has the ability to provide the Defendant's experts with such data that would
enable them to compare said data to the United States Census data to determine if the juror
summoning process in Montgomery County is racially neutral.
5. The prohibitions of ART. 35.29 of the TCCP do not apply as the address data requested is not
collected "during the jury selection process" but rather the jury summoning process.
6. The prohibitions of Section 62.0132 do not apply as no information from jury swnmons
questionnaires are being requested.
IT JS 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. Dr. Eschbach and Mr. Beauregard will execute Confidentiality Agreements that the data turned
over to them will be treated as confidential and shall only be used for the purposes stated in this
order and not disseminated ora;;;d with any other person or entity.
SIGNED THIS
~
day of
Y .,.o,.- 4l ~·
, 2014.
~
\)~log ~ue ~~ DG~
1, Barba(& G!adllen Adamlck,
ce~i -l- ages-~n ~l'f ;:kDl. IJDU'--
as a. and oorreJ popy
pr· inal Aeoord now on me In the 1strtc
<:l~~We;-Qf/lol! of Montgomery County, Texas.
Wilr18'~ My Official Seal ot e in Conroe~tovii
on This l_ Day of • '
Appendix C - Jury Selection Plan
,. , ..
THE MONTGOMERY COUNTY ELECTRONIC JURY SELECTION
PLAN
(Amended, December 2005)
AN AUTOMATED SYSTEM
FOR
MONTGOMERY COUNTY, TEXAS
AS AUTHORIZED AND DIRECTED BY
THE BOARD OF DISTRICT JUDGES, TO WIT:
The Honorable Fred Bdwards, 9th District Court
The Honorable Suzanne Stovall, 221•t District Court
The Honorable Olen Underwood, Sitting as 284th District Court
The Honorable Kathleen Hamilton, 359"' District Court
The Honorable K. Michael Mayes, 410th District Court
Barbara Gladden Adamick
District Clerk
Page 1 of 9
.,
'
I
ELECTRONIC JURY SELECTION PLAN FOR
MONTGOMERY COUNTY, TEXAS
Section 62.011. Government Code
Electronic or lllechanlcal Method of Selection
(a) On the recommendation of a majority of the district and criminal district
judges of a county, the Commissioners Court, by order entered In Its minutes, may adopt a
plan for the selection of names of persons for jury service with the aid of mechanlcal or
electronic equipment Instead of drawing the names from a jury wheel.
(b) A plan authorized by this section for the selection of names of prospedlve
jurors must:
(1) be proposed. In writing to the Commissioners Court by a
majority of the district and criminal district judges of the county
at a meeting of the judges called for that purpose;
(2) specify that the source of names of persons for jury service Is
the same as that provided by section 62.001 and that the names
of persons listed in a register of persons ""empt from jury service
may not be used In preparing the record of names from which a
juzy list is selected, as provided by Sections 62.108 and 62.109;
(5) provide a fair, impartial. and objective method of selecting
names of persons for jury service with the aid of electronic or
mechanical equipment;
(4) designate the district clerk as the officer In charge of the
selection process and derme Ws duties; and
(5) provide that the method of selection wtll either use the same
record of names for the selection of persons for jury service until
that record ls exhausted or will use the same rec0rd of names for a
period of time specified by the plan.
(c) The provisions of this subchapter relating to the selection of names of
persons for jury service by the use of a jury wheel do not apply In a county that adopts a plan
authorized by this section for the selection of names of prospective jurors by the use of
electronic or mechanical equipment.
{d) A state agency or the secretary of state may not charge a fee for furnishing a
list of names required by Section 62.001.
Page 2 of 9
...
Computer or Telephone Response to Summons
(a) A plan authorized under Section 62.011 for the selection of names of
prospective jurors may allow for a prospective juror to ·appear In response to a sununons by:
(1) contacting the county officer responsible for summoning jurors by
computer;
(2) calling an automated telephone system; or
(5) appearing before the court In person.
(b) A plan adopted under Subsection (a) may allow for a prospective juror to
provide Information to the county officer respomlble for summoning jurors or for the county
officer to provide information to the prospective juror by computer or automated telephone
system Including:
(1) Information that permits the court to determine whether the
prospective juror is qualified for jury service under Section 62.102;
(2) information that permits the court to determine whether the
prospective juror Is exempt from jury service under Section 62.106;
(5) submission of a request by the prospective juror for a postponement
of or excuse from jury senice under Section 62.110;
(4) Information for jury assignment under Section 62.016, Including:
(A) the prospective juror's postponement status;
(B) If the prospective juror could potentially serve on a jury In a
justice court, the residency of the prospective juror; and
(C) if the prospective juror could potentially serve on ajuiy in a
criminal matter, whether the prospective juror has been convicted of misdemeanor theft;
(5) completion and submission by the prospective juror of the written jury
summons questionnaire under Section 62.0152;
(6) the prospective juror's electronic mall address; and
(7) notification to the prospective juror by electronic mail of:
(A) Whether the prospective juror is qualified for jury service;
(BJ the status of the exemption, postponement, or judicial excuse
request of the prospective juror; or
(CJ whether the prospective juror has been assigned to a ;Juiy
Page 3 of 9
•,
panel.
(c) The county offl.cer responsible for summoning jurors shall purge the
electronic mall address of a prospective juror collected under Subsection (b):
(1) If the prospective juror serves on a jury, not later than the so•• day
after the date that:
(A) the county sends the person payment for jury service; or
(Bl the county would otherwise send the person payment for jury
service, if the person has donated the payment under Section 61.003; or
(2) If the prospective juror does not serve on a jury, not later than the
so•• day after the date that the court releases the person from jury service.
Page 4 of 9
-· -·-·· ________...... __......______
MONTCiOMBRY COUNTY ELECTRONIC JURY SELECTION PLAN
............,.......,.......
_ __,, .....,
WHEREAS, it is hereby recommended to Commissioners Court of Montgomery
County, Texas, by a majority of the Judges of District Courts of Montgomery
County, Texas, that the Flaa for Selecting Persons for Jwy Service, first
recorded and adopted in the minutes of Montgomery County Commissioners
Court in 1982, Volume 34, Page 335, secondly amended Be adopted by
Commissioner's Court on August 20, 2001, be amended and the new
Montgomery County Elec_tronlc Jwy Selection Plan under Section 62.011
Government Code of The State of Texas be adopted as follows:
A.
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 Drivers License and the citizens of the County, other than persons who are
disqnalifled from Jury service, who hold a valid personal identification card or certificate held
by the Department of Public Safety, except those exempt from jwy service as provided by
Sections 62.108 and 62.109 of the Government Code; and fnrther provided that at any stage
of this plan the voter registrar of Montgomeey 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 disquallfled from jury
service, such as felons or aliens.
The District Clerk of Montgomery- County, Texas is designated as the official In
charge of the Montgomery County Jury Selection process and Is assigned the duties
hereinafter enumerated and shall: ·
1. Deputize as a clerk, a Jury Coordinator with computer skills.
2. Cause the tasks directed In this plan to be automated.
3. Direct and coor.:ra.<:J..::- ,
2005.
i..~)
Jud e of 9'" Judicial !strict
\.
Honorable Olen Underwood
Sitting as Judge of 284"' Judicial District
LJ)~ ~-~~
Honorable Kathleen Hamilton
Judge of 559'" Judicial District
Page 8 of 9
''-
RESOLUTION AND ORDER OF THE
COMMISSIONERS COURT OF MONTGOMERY COUNTY, TEXAS
On this li_day of il.e~ ~ 2005, at a duly ste and called meeting
..· ,
of the Co~er:iCourt, a motion made by and
seconded by~, f , did consider an
Montgomel'y County Electronic Jwy Selection Plan.
BE IT RESOLVED that this resolution and order shall remain In effect
until further orders of the Court.
ADOPTED AND PASSED, this the Jq-d day of '.Du...J,.,.y ,2005.
&!litaP---
ce
COmmlssloner, Precinct # 3
Alan B. sadler
County Judge
Page 9 of 9
Appendix D – Memorandum
In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-14-00337-CR
____________________
IN RE BRETT W. LIGON, MONTGOMERY COUNTY DISTRICT
ATTORNEY, AND BARBARA ADAMICK, MONTGOMERY COUNTY
DISTRICT CLERK
_______________________________________________________ ______________
Original Proceeding
________________________________________________________ _____________
MEMORANDUM OPINION
In a petition for writ of mandamus, Brett W. Ligon, the Montgomery County
District Attorney, and Barbara Adamick, the Montgomery County District Clerk,
ask this Court to order the judge of the 9th District Court of Montgomery County,
Texas, to vacate his order requiring them to disclose to the defense in a criminal
case the address of every person who has been summoned for jury service in
Montgomery County during calendar year 2013. We requested a response from the
real party in interest, Leon Davis. Upon review of the mandamus petition, the
mandamus record, and Davis’s response, we conclude the trial court abused its
1
discretion by ordering production of the information at issue. We conditionally
grant relators’ request for relief.
The indictments filed in case numbers 13-01-00685-CR and 13-05-05517-
CR accuse Davis of evading arrest or detention with a motor vehicle and retail
theft, and allege that Davis is a habitual criminal. Davis filed a motion challenging
the juror summoning process based on racial bias. No hearing has been scheduled
for that motion. Davis also filed a motion to produce juror address data. That
motion stated that a motion for deposition of witnesses was scheduled for March
27, 2014, but Davis subsequently withdrew the motion and at the beginning of the
hearing on the motion to produce juror address data, Davis’s counsel stated, “I’m
formally withdrawing and abandoning my request to take anyone’s deposition.”
Davis also abandoned his motion to change venue.
At the hearing on Davis’s motion to produce juror address data, Davis’s
counsel stated that the defense believes that a disproportionate number of citizens
of African-American descent serve on jury panels for an unknown reason. Davis
hypothesizes that the reason is because there is an unidentified defect in the way
jurors are summoned. Davis seeks data on the jurors’ addresses so that he can
compare them with census population data which, he argues, will enable his
experts to discern whether the jury summoning process is racially neutral. He is not
2
challenging the array. On August 4, 2014, the trial court ordered Adamick to
produce “the address data of all jurors summoned for jury duty during the calendar
year 2013 in electronic form[,]” to two experts retained by the defendant.
This is the second time relators have sought similar mandamus relief in the
same criminal case. See In re Ligon, No. 09-13-00389-CR, 2013 WL 5658610, at
*1 (Tex. App.—Beaumont Oct. 16, 2013, orig. proceeding) (not designated for
publication). In the previous proceeding, we held the trial court abused its
discretion by ordering relators to disclose information from questionnaires filled
out by prospective jurors in cases other than Davis’s. Id. at *4. We held the
questionnaires were confidential. Id. at *2; see also Tex. Code Crim. Proc. Ann.
art. 35.29 (West Supp. 2014); Tex. Gov’t Code Ann. § 62.0132 (West 2013). In his
response to relators’ petition in this new proceeding, Davis argues that the trial
court’s new order is distinguishable from the order that was at issue in the first
mandamus proceeding because this order requires limited disclosure and
production of the electronic data from which the juror questionnaires are
generated, not the completed questionnaires themselves. See Tex. Gov’t Code Ann.
§ 62.0132(g) (describing persons to whom “[t]he information contained in a
completed questionnaire may be disclosed[.]”). Davis argues the summoned jurors’
addresses are not information collected in the jury selection process. See Tex. Code
3
Crim. Proc. Ann. art. 35.29. Davis argues that Montgomery County’s electronic
jury selection plan authorizes the trial judge to view the address list that the judge
ordered Adamick to produce in electronic form and allows the judge to order that
the address list be turned over to the defense’s experts. Also, Davis argues that
section 62.011(b)(4) of the Texas Government Code and Montgomery County’s
jury selection plan empower the trial judge to exercise supervisory authority over
the District Clerk by ordering her to provide the electronic information to Davis.
See Tex. Gov’t Code Ann. § 62.011(b)(4) (West 2013).
None of these reasons provides a reasonable basis for distinguishing the first
mandamus proceeding that arose during the State’s prosecution of Davis from the
current mandamus proceeding. See Ligon, 2013 WL 5658610, at **1-4. This time
the trial court ordered Adamick to produce and disclose to Davis the address of
every person summoned to jury service for the Montgomery County district courts
and county courts at law in 2013. Summoning jurors is part of the jury selection
process. See Tex. Gov’t Code Ann. § 62.001 (West 2013); Tex. Code Crim. Proc.
Ann. arts. 33.09 (West 2006), 35.01 (West Supp. 2014). The summoned person’s
address is required information for the confidential questionnaire. See Tex. Gov’t
Code Ann. § 62.0132(c)(2).
4
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. 1 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.
Davis argues that the trial judge’s order to disclose electronic information
about the summoned jurors is within the court’s discretion because Montgomery
County’s jury selection plan requires that the jury coordinator retain a list of the
1
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).
5
names and addresses of the prospective jurors “to be viewed at the Judge’s
discretion[,]” but the trial judge has not asked for access to the summarized jury
list. Rather, the judge ordered Adamick to produce to the defendant in a criminal
case the address data of all persons who were summoned for jury service in
Montgomery County in 2013. By requiring Adamick to make a disclosure that is
neither required nor provided for by Montgomery County’s jury selection plan, the
trial judge is not enforcing a non-discretionary duty owed by Adamick in the
performance of her official functions under the plan.
Davis argues the trial court has the authority to issue an order to secure petit
juror information under the compulsory process clause of the Sixth Amendment.
See U.S. Const. Amend. VI. The jurors whose information is to be disclosed to
Davis have no connection to his case whatsoever. They are people who were
summoned to appear for jury service in other cases unrelated to the State’s
prosecution of Davis.
Without citing any precedent and relying solely on the Sixth Amendment,
Davis argues that the trial court has the power to order Adamick to produce juror
address data because at the hearing Davis presented evidence “questioning the
inclusion of African-Americans in the jury selection process.” Several defense
attorneys testified that in their experience few African-Americans appear on
6
venires in Montgomery County. The jury system supervisor for the District Clerk’s
office testified that jury summonses are generated from an electronic file of names
and addresses. He could not isolate and produce an electronic data file of the jurors
who were summoned in 2013, although it is possible that the county IT department
could.
Karl Eschbach, a demographer who has been retained by Davis, testified that
having the juror’s addresses would enable him to geo-code the data with
geographic counts of racial populations and perform a statistical analysis of
whether the jury summonses were consistent with the representation of African-
Americans in the county. Dr. Eschbach had no information regarding driver’s
licenses or voter registrations, and would simply determine whether there was a
statistically equivalent representation or gross under-representation of “African-
American residential areas” in the areas where summonses were sent. The work he
would perform with the data would help identify “whether there was an issue that
needed to be addressed.”
A defendant has a right to compulsory process only for obtaining evidence
that is both material and favorable to the defense. Coleman v. State, 966 S.W.2d
525, 527-28 (Tex. Crim. App. 1998) The requested data would make it possible to
discover if areas that have high concentrations of African-Americans are
7
statistically underrepresented in jury summonses, but Davis presented no evidence
that jury summonses are produced in any manner other than by randomized
selection from driver’s licenses and voter registrations obtained from the Secretary
of State, and in his response to the mandamus petition, Davis concedes the
selection results from a computer program approved under the statute that allows
an electronic method of jury selection. See Tex. Gov’t Code Ann. § 62.011. The
evidentiary value of the information that the trial court ordered Adamick to
produce and disclose to the defense is entirely speculative. Absent a showing that
the jurors’ personal information would be both material and favorable to him, the
compulsory process clause does not require that the information be produced. See
Coleman, 966 S.W.2d at 528.
In a criminal case, a relator may establish an entitlement to mandamus relief
by showing a clear right to relief and the lack of an adequate remedy at law. See In
re State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236
S.W.3d 207, 210 (Tex. Crim. App. 2007). “A clear right to relief is shown when
the facts and circumstances dictate but one rational decision ‘under unequivocal,
well-settled (i.e., from extant statutory, constitutional, or case law sources) and
clearly controlling legal principles.’” In re State ex rel. Weeks, 391 S.W.3d 117,
122 (Tex. Crim. App. 2013) (quoting Bowen v. Carnes, 343 S.W.3d 805, 810 (Tex.
8
Crim. App. 2011)). A trial court has a “ministerial duty” to vacate an order which
it lacked the authority to issue. See State ex rel. Thomas v. Banner, 724 S.W.2d 81,
83 (Tex. Crim. App. 1987). Mandamus relief is appropriate when the trial court
issues a discovery order that is beyond the scope of its authority. See In re State ex.
rel. Robinson, 116 S.W.3d 115, 117-18 (Tex. App.—Houston [14th Dist.] 2002,
orig. proceeding); In re State ex. rel. Wade v. Stephens, 724 S.W.2d 141, 143-44
(Tex. App.—Dallas 1987, orig. proceeding).
The State cannot pursue a pre-trial appeal of the trial court’s order. See Tex.
Code Crim. Proc. Ann. art. 44.01 (West Supp. 2014). Davis argues that Adamick
may present a complaint regarding the trial judge’s order with the county’s Board
of District Judges and the Commissioner’s Court, and contends that a complaint to
those bodies provides an adequate remedy at law. The trial court signed an order in
a criminal case, and by virtue of that command, Adamick must obey or face
possible contempt proceedings. See Ex parte Hughes, 759 S.W.2d 118, 120 (Tex.
1988). If the trial judge exceeded his authority in making that order in a criminal
case, it is this Court, not the Board of Judges or the Commissioner’s Court, with
the jurisdiction to order the judge to vacate that order. See Tex. Gov’t Code Ann. §
22.221(b) (West 2004). Relators have established that they lack an adequate
remedy at law.
9
The trial court abused its discretion when it required the Montgomery
County District Clerk to produce and disclose confidential personal information
without an adequate showing that the information is material and favorable to the
defense. We conditionally grant relators’ petition for writ of mandamus and direct
the trial court to vacate its order requiring disclosure of the address of every person
who has been summoned for jury service in Montgomery County during calendar
year 2013. Because we are confident the trial court will vacate its order, the writ
shall issue only if the trial court fails to act within a reasonable time.
PETITION CONDITIONALLY GRANTED.
PER CURIAM
Submitted on September 4, 2014
Opinion Delivered October 8, 2014
Do Not Publish
Before McKeithen, C.J., Kreger and Johnson, JJ.
10
Appendix E - Motion for Protective Order
'I,•
....~ \.
NO. 13-01-00685-CR
THE STATE OF TEXAS §
§
v. §
§
LEON DAVIS § MONTGOMERY COUNTY, TEXAS
MONTGOMERY COUNTY DISTRICT CLERK BARBARA ADAMICK'S
MOTION FOR PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF THE DISTRICT COURT:
The Montgomery County District Clerk Barbara Adamick ("District Clerk') files this
Motion for Protective Order in response to Defendant Leon Davis' ("Defendant") Motion to
Produce Juror Address Data in which defendant seeks the summoned juror address data from the
District Clerk, and would request that the Court deny the Defendant's motion and grant the
District Clerk's motion for protective order.
I. Issue is Premature
The Defendant's request for summoned juror address data should not be granted because
the issue which Defendant seeks discovery on is not ripe and is premature. Defendant speculates
that the jury smmnoning system in Montgomery County is not racially neutral, and argues fur the
need for summoned juror address data to dete1mine if that is true. The Court of Appeals has
already granted the State mandamus relief from a previous order to disclose juror information
(name, sex, race, age, address, marital status, education, employment) to the Defendant, and
noted that the Defendant's objection to the racial composition is merely speculative at this point
because thei array from which Defendant's jury will be drawn has not yet been selected. In re
Brett W. Ligon, No. 09-13-003&9-CR, 2013 WL 5658610 (Tex.App.·Beaumont Oct. 16, 2013
(orig.proceeding)(mem.op., not designated for publication). The Court of Appeals further noted
Page J
that defendant admitted he was on a fishing expedition when he first asked for the juror
infonnation, and that the Defendant was seeking to address a hypothetical problem that the
Defendant himself is not even sure really exists. /11 re Ligon at 4.
II. Defendant Roouesting Same Confidential Juror Info1mation
The Court of Appeals has already denied this Defendant access to juror address
information because the juror information sought by defendant is confidential ai1d protected
under privacy rights by the State Legislature. In re Ligon at 4 citing Tex. Gov't Code Sec.
62.0132(g) and Tex. Code Crim. Proc. Ann. Art. 35.29. Defendant's motion is asking for the
exact same information that the Court of Appeals has described is confidential juror information
(name, sex, race, age, address, marital status, education, employment).
III. Protective Order is Necessazy to Protect Confidential Juror Information
Defendant's discovery request for juror address information invades personal or
constin1tional rights to privacy and should be denied in whole, and the County Clerk should be
protected by the Court from having to produce such infonnation now and in the future in this
matter.
Page2
Respectfully submitted,
JD LAMBRIGHT
MONTGOMERYCOUNTYATTORNEY
207 West Phillips Street, Suite 100
Conroe, Texas 77301
Tel: (936 539-7828 Fax: (936) 760-6920
By:
·~~~u~~~~'---~~~~~
State Bar No. 404Il51
E-Mail: stuart.hu~es@mctx.org
Attorney for MONTGOMERY COUNTY
DISTRICT CLERK
Certificate of Service
I certify that a true copy of the above was served on each attorney of record or party in
accordance with the Texas Rules of Civil Procedure on April CJ..., 2014.
lll/.f
Attorney for
DISTRICT CLERK
MONTGOMERY COUNTY
PUP.< 3