Davis, Leon

• Court: Court of Appeals of Texas
• Decided: January 29, 2015
• Docket: WR-41,706-02
• Status: Published

Opinion

WR-41,706-02 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/29/2015 2:55:44 PM Accepted 1/29/2015 4:30:08 PM ABEL ACOSTA CLERK NO. ______________________________ RECEIVED COURT OF CRIMINAL APPEALS 1/29/2015 IN THE COURT OF CRIMINAL APPEALS ABEL ACOSTA, CLERK AT AUSTIN, TEXAS

__________________________________________________________________

LEON DAVIS, Relator,

vs.

THE HONORABLE NINTH COURT OF APPEALS, AT BEAUMONT, TEXAS, Respondent

Arising from No. 09-14-00337-CR Court of Appeal, Ninth District of Texas at Beaumont __________________________________________________________________

LEON DAVIS' MOTION FOR LEAVE TO FILE PETITION FOR WRIT OF MANDAMUS

__________________________________________________________________

COMES NOW, LEON DAVIS, Relator, by and through his Counsel of

Record, RICK BRASS, pursuant to TEX.R.APP.P. 72.1, and seeks leave of this

Honorable Court to file the attached Petition for Writ of Mandamus complaining of

the actions of the Court of Appeals For the Ninth District of Texas, Beaumont. WHEREFORE, PREMISES CONSIDERED, Relator prays that this

motion be granted and that this Court grant him leave to file the attached Petition

for Writ of Mandamus.

RESPECTFULLY SUBMITTED,

BRASS & McCOTTER 207 SIMONTON CONROE, TEXAS 77301 rbrass1@yahoo.com Tel (936) 788-5700 Fax (936) 788-5701

Rick Brass By:_________________________________ RICK BRASS Texas Bar No. 02909450

CERTIFICATE OF SERVICE

I hereby certify that true and correct copies of the foregoing instrument were mailed to the Respondent and counsel for the real parties in interest on the date of the mailing of the original to the Clerk of this Court.

Rick Brass ________________________________ RICK BRASS NO. ______________________________

IN THE COURT OF CRIMINAL APPEALS AT AUSTIN, TEXAS

__________________________________________________________________

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

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.

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) 13 14 15 16 17 18 19 20 21 22 23 24 25 125

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

c. 1. On or before August 1 of odd numbered years, the District clerk shall request the Secretary of State to prepare the Jury File for Montgomery County from the sources provided herein.

Page 5 of 9 2. On or before August 1 of odd numbered years the Registrar of Voters of Montgomery County, Texas will certify and transfer to the Secretary of State of Texas the Jmy wheel File In a format requested by the Secretary of State as follows:

An electronic file containing a complete voter registration listing, as of a day certain, of all persons who are Registered Voters of Montgomery County, excluding the names of persons on the exemption list provided for In Section 62.108 and 62.109 of the Government Code and those otherwise prohibited by law from serving as jurors;

An electronic file of the permanent exemptions under Article 62.108 and 62.109 of the Government Code and of the felony convictions that have been excluded; and

An electronic file of felony convictions In Montgomery County.

(Transfer of Jmy Wheel File)

3. On or before October 1 of odd numbered years, the Department of Public Safety shall transfer to the Secretary of State, In a format requested by the Secret.ary of State, the names of those drivers from !llontgomer,y County, provided for in Article 62.001 of the Government Code and who have registered for driver's license, and the citizens of Montgomery County Who ·hold a valid personal identification card or certificate held by the Department of Public Safety (other than persons who are disqualified from Jury Service). The Department of Public Safety may exclude from this file those persons Identified as aliens or as felons.

(Remow.l of Exempt and Felony Persons)

4. On or before October 15 of odd numbered years, the Secretary of State wlll .remove from the list of those persons In the electronic file delivered to that office by the Department of Public Safety, Insofar as they can be identified and matched by the Information in the Jmy Wheel l'lle, the names of those persons on the permanent exemptions from jmy duty file and those persons In the felony file provided to the Secretary of State by the Voter Registrar of Montgomery county.

(Merging of Files)

5. The Secretary of state shall then merge the names of the Montgomery County Voter Registration file transferred by the Montgomery County Drivers Registrations and persons with identification numbers transferred by the Department of Public Safety and shall remove all duplications of the merged file only once. This merged f"lle called the n Prospect.tve Montgomery County Jury Wheel File,,, shall be tl'ansferred to the Distrl.ct Clerk of Montgomery County by December 1 of odd numbered years, In the format requested by the !llontgomezy County District Clerk.

(Prospective Montgomery County Jury Wheel File)

6. The District Clerk of Montgomery County shall accept the '"Prospective Montgomery County Ju:ry Wheel F'fle"from the Secretary of state when it ls delivered. The District Clerk or District Clerk deputy and the Sheriff or his deputy.In the presence of each other, shall cause the "Prospective Montgomery County Jury Wheel l'fle'~ to be transported to Communication Information Services office of Montgomery County. A designated staff person or representative In the CIS office wlll download the tape onto a computer known as IBM R.S.

Page 6 of 9 -;. ..

6000 for creation and testing. Upon verification of a completed tape, the District Clerk, Sheriff, CIS Director or a representative from each office, will certify said tape as the new ".Prospective MoIItgomeiy.County Jury Wheel File", thus, allowing for the new" l'rospectlve /lfoIItgomery County Juzy Wheel l'ilef' to be on-line for selection after January 1 of even numbered years. 'l'he District Clerk, Sheriff and or their representative shall deliver the original of the new ''Frospectlve l'foIItgomezy County Jury Wheel File", which is a CD, to the District Clerk's Ol'flce where It will be stored In a fire proof safe, thus protecting from further writing.

(Jury File)

7. After the above creation and testing of the new ".Prospective MoIItgomeiy Couuty Jury wheel File", in accordance with this plan, the jury wheel file will be opened and the obsolete ''Frospectlve MoIItgomery Couuty Jury Wheel me-will be removed, to be destroyed one year from the date of removal, per record retention guidelines.

o. The District Clerk, with the assistance Of Communication Information Service of Montgomery County, shall prepare an electronic and automated system which will cause an electronic means of selecting persons ca.lied for jury service from the MoIItgomery County Prospective Jury Wheel File, by a fair, impartial, and objective method, to produce a list showing the names and addresses of persons so selected for designated dates, as hereinafter provided.

B.

The District Clerk, appointed by the Presiding Board of Judges on August 5, 2005, or a District/County Court at Law Judge shall preside over the Central Jury Panel, being available to 'qualify the panel for service in the various Courts on a weekly basis.

F.

Bach week or mouth, or three (3) weeks prior to requested appearance, the Court Coordinator, under the direction of the Judge of each County and District Com1: shall submit tc the District Clerk Jury Coordinator a Court's "Request for Jurors.'' (Being fonn # 2 of the Jury Fool 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.

Ou Thursday 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

Page 7 of 9 '.

jurors with their name, address, jur9r number and TDL or voter registration number on front of the summons. These summons shall be placed in the mall within two (2) days from the date of request by jury coordinator, per designation of the Sheriff. The person/Vendor 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.

G.~ The Jurors so selected, q\lalified, instructed and sworn shall constitute a general panel for the week for service as jurors In all district, county, juvenile and justice courts In Montgomery County, and shall be used interchangeable in all of said courts. The Presiding Judge or representative shall assign such jurors out in panels to the different courts as rCq\lested by the judges of said courts. ·

H.

This plan may be amended by the Conunlssloners Court upon recommendation of a majority of the District Judges of Montgomery County.

\ -------------------- The foregoing J.!. pages approving th.e Montgomery County Electronic Jury amended December 2005, was adopted by a majority of tl}.~trlct Judg County, Texas, at a meeting called for that purpose this ~· day of__,,,,.,!4'.l.r:..Lt.:ill>.: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

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