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.
Phone (817) 565-8439.