DIANA BRANDBORG V. JURY QUESTIONNAIRE Showdown on Juror Privacy in Denton, TX by Larry Dod

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DIANA BRANDBORG V. JURY QUESTIONNAIRE Showdown on Juror Privacy in Denton, TX by Larry Dodge The dawn's early light had just barely given way to broad daylight on the morning of February 10 when the first call came in to me regarding the case of Diana Brandborg. Diana Brandborg had the day before been cited for contempt of court and sentenced to three days in jail and a fine of $200 by Denton County Judge Ira Sam Houston for refusing to answer some of the questions on a jurors' questionnaire sent to her as a member of the pool from which a jury would ultimately be empaneled for the capital murder trial of James Clark. But Mrs. Brandborg felt that the 14-page mail-back questionnaire asked several things that were "too personal", and were not pertinent to the case, so she marked "N/A" to questions about her income, her religion, and her organizational memberships, among others, and returned the form with a letter to the judge explaining why she did what she did. Thus began what has turned into a dramatic confrontation between parts of the legal establishment and a growing group of citizens who have apparently long been looking for someone with the nerve to tell the government, on this and other matters, "None of your business!" When I called her a day later (after debating whether my call might also invade her privacy), I reached her husband, who took my number. She called me the next evening, and described herself to me over the phone as "just an ordinary citizen", but one who felt that "we have to draw the line somewhere, or we'll lose all our rights." I heartily agreed, and then she told me, "I've never been in trouble with the law before, in my whole life, and I can't believe that what I've done is against the law. And if it is, it shouldn't be." I told her that such is the spirit which drives FIJA, and that the rights of jurors is what our organization is all about. I was happy to be able to point out that protection of juror privacy is already included in our expanded action agenda, known as 'Maxi-FIJA'. I also told her that Texas State Senator Florence Shapiro, from nearby Plano, had last year introduced legislation to severely curtail questioning of potential jurors, and that she would probably reintroduce it at the next session. I assured her that I would talk with her attorney, Rick Hagen, and with Sen. Shapiro, and that she had more support in the community than she knew. Then I called Hagen. But before he could return my call, at least six other people called me, including a reporter from the Dallas Morning News, all of them looking for opinion, comment, and whether FIJA was or might become involved. Mr. Hagen turns out to be young, energetic, and well versed in matters of constitutional law, which the Brandborg case immediately shaped up to be: the right of a citizen juror to privacy versus the right of the accused to trial by a fair and impartial jury. He has experience both as a prosecutor and criminal defense attorney, and belongs to professional associations representing both. After half an hour on the phone with him, I was convinced Mrs. Brandborg had chosen competent counsel, which has certainly proven to be the case so far: she is out on a writ of habeas corpus, having spent only 30 minutes in jail while the papers to release her were processed. Further imposition of her sentence is now stayed until the matter can be decided on appeal. Mrs. Brandborg has not herself been tried by a jury, nor will she be, because contempt of court charges do not [yet!] entail a jury trial if the potential sentence is less than six months. But she has certainly been exonerated by the court of public opinion. Her case brought out 50-75 protesters to an initial hearing, and has been well covered by every paper and TV station in the area, some of which was picked up and broadcast nationally. The news to date has inspired much editorial comment, the bulk of it favorable to her point of view. At the courthouse, demonstrator Lynn Yeargain carried a sign reading "Prosecute Criminals--Not Jurors", while CLR (Citizens for Legal Reform) and FIJA activist Ross Melton packed around a banner saying "Free Diana--Jail the Shysters!" (Melton supplied us with an account of the incident, from which some of the information in this article was taken.) Several demonstrators handed out CLR and FIJA literature. Some of those in attendance were her friends, others were there by virtue of word of mouth, still others were responding to an ad for a "Brandborg Rally" placed in the Denton Record-Chronicle by FIJA activist Mark Bielamowicz. Together, they cheered Mrs. Brandborg as she entered and exited the Denton County Courthouse on March 9. On her way out, she and her lawyer gave printed statements to the crowd and media, reiterating her resolve to protect her privacy--which is evident from the transcript of her initial exchange with Judge Houston, but is still more eloquently phrased in the prepared statements. Ironically, what was expected to be a high-profile murder trial of James Clark has been all but obscured by the unique plight of one of those who might have sat in judgment of him (though she has long since been "excused" from service, by agreement of both the defense and prosecution). On February 18, I had faxed the first news clippings on the case to Sen. Shapiro in Austin, where staffers assured me she was highly interested in the case as an illustration of the need for the reforms she is seeking in the voir dire process. Not long later, Sen. Jane Nelson of Flower Mound said she would introduce legislation designed to prevent undue invasion of privacy in the jury selection process. Since then, Attorney Rick Hagen has filed papers with the Texas court of Criminal Appeals in Austin, to which Judge Houston has until May 16 to respond. By now, everyone from the Texas Trial Lawyers Association to the American Civil Liberties Union has remarked on the case, and FIJA (meaning Lone Star FIJA) continues to be cited as one of the organizations "spearheading" the effort to preserve and defend Diana Brandborg's rights.* The press got that right--we're pleased to be of any service we can--and we pledge at the very least to remain supportive, then to report the outcome of her case when it is resolved. I only hope our headline can read, "Diana Exonerated!" ______________________________________ *In early April, the Dallas Morning News called again for my comments, possibly to use them in a feature story on the case. Asked what connection I felt FIJA had with a case pertaining to juror privacy, as opposed to jury veto power, I said, "If William Penn's jurors had been required to divulge their religion, and could have been excused from serving on account of it, Edward Bushell, the only non-Anglican on the panel, would not have been seated. That means they would have hanged Penn--and there would be no Pennsylvania today." I hope they print that... The Legal Defense Fund for Diana Brandborg, for those wishing to make contributions, may be reached through Johnnie Hauptman, Treasurer, 2503 Nottingham, Denton, TX 76201.

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