by Larry Dodge

There's nothing like a long talk with a brave lady to make my day! I called Dianna Brandborg on July 19, just to catch up on her case. This is the sweet and charming homemaker from a small town north of Dallas, Texas, who "just said 'no'" to Judge Ira Sam Houston in Denton County Court when he threatened her with contempt charges if she continued to refuse to answer some of the questions in a jury questionnaire.

She said the questions were too personal, and seemed irrelevant anyway. He said, "Contempt!", with a punishment of three days in jail and a $200 fine.

Fortunately, her attorney, Rick Hagen, saw constitutional merit in her point of view, and before she could serve her sentence appealed the case as a legal dilemma: where does the personal privacy right of the individual juror leave off, and the defendant's right to trial by an impartial jury begin?

Now, this is a huge issue, with ramifications of all kinds, both for the right to privacy and to a fair jury. Both rights are ill-defined in the legal literature, so this case, now before the Texas Court of Criminal Appeals, could set some serious precedent.

Just to tease you into thinking about it a little, consider:

Does the questioning of potential jurors (the "voir dire" process) produce "fairer" juries than random, blind selection? The only evidence on the topic comes from other countries, like England, whose courts operate without benefit of voir dire, and it suggest the answer is "no". Now if the answer is "no", then the right of privacy of the juror "gains ground" against the right of the accused to question potential jurors.

If the answer is "yes", however, things get more complicated. True, in the overall, if voir dire results in better juries, one has only to consider that the accused will generally have much more at stake in the trial than any or all of the jurors, so his or her right to a fair jury should gain ground against a juror's right to privacy.

The problem is, some of the voir dire questions may elicit responses much more relevant to "fairness" than others. Some are downright "nosy", and deserve to be answered "None of your business" in almost any circumstances. But where does one draw the line? And who gets to decide what's "relevant", anyway?

Worse yet, voir dire is not and never has been a way to find and empanel only the fairest of jurors. Ours is an adversarial system of justice, in which attorneys have no incentive to pay attention to "fairness", but only to their win-loss record. (Now here's an anology for "outcome-based education!)

The result is, voir dire has long since become a jury-stacking contest between opposing attorneys. They have every incentive to probe into every aspect of a juror's life, not in search of fair-mindedness, independence, or intelligence--but in search of bias, gullibility, even stupidity. The object of the contest is to retain those you can predict will help you win, get rid of those the other side wants. The contest only ends when the judge quits listening to challenges of jurors for "cause", and one side uses up all its peremptory challenges.

Back to the problem: In a jury-stacking game, "everything" becomes relevant, especially as juror selection technique has now grown into an elaborate, high-tech and high-stakes social science, complete with seminars and books and journals and schools and highly paid trial consultants--even private detectives who snoop into jurors' private lives. Call it the "voir dire industry"--it's a sordid business.

So if the jury questioning process is itself the problem, working against rather than in favor of fairness, it makes more sense to swing the axe on it than to pursue the perfect formula for determining what kinds of questions jurors may and may not be asked (thus limiting the freedom of speech of the attorneys, to throw in another complication).

And so thinks at least one Texas state senator, Florence Shapiro, who has vowed to reintroduce her 1993 bill to eliminate the voir dire process in the courts of the Lone Star State. But once an industry has developed, and big bucks are on the line...(What, me cynical?)

Meanwhile, another state senator, Jane Nelson, in whose district Ms. Brandborg resides, has been working on legislation to enhance and protect a juror's right of privacy, and has even called FIJA HQ in Montana for advice and information. Either of these two bills would do much to protect people like Dianna Brandborg--and like you and me-- from having our private lives exposed at the whim of a curious attorney or two.

And I do mean "exposed". A little-known fact I got from Ms. Brandborg over the phone is that she was especially glad she'd made her stand for privacy when she discovered that, during the individual voir dire session, the papers she saw the defendant flipping through, and reading, were the pages of her written juror questionnire!

In her words, "After all the assurances given to me and the others about how 'private' our answers would be! Imagine, the defendant, up for murder, now knows all about our houses, our children, the church we belong to, everything...that is so dangerous! And a case just like that happened over in Ft. Worth, where the defendant actually called up a juror and scared her to death!"

Currently, Dianna Brandborg's case is in indefinite limbo. After both sides submitted briefs and answers to the Criminal Appeals Court in early Spring, the Court failed to react--and has now gone into "recess" for the summer. The scuttlebut is that the court doesn't want to have to decide the issue, and hopes to delay it until Judge Houston retires, then drop it: no "black mark" on the judge's record, and no decision on the issue...

Until then, Ms. Brandborg says Denton County is not as comfortable a place to be as it was. "It's a nightmare sometimes, putting up with the rumor mill they cranked up to discredit me. And when my husband Carl and I go out to dinner, half the time we find ourselves seated next to some of the lawyers who are either involved in the case, or friends of theirs. Poor Carl, I don't think he was ready for this. But he sticks by me, though!"

As I hung up the phone, I was smiling. "This is one tough Texas lady", I kept saying to myself in silent admiration. Then I thought again about a possibility that worries us both--that if she doesn't prevail, who's ever going to want to sit on a jury in the future, knowing what the authorities can and will do to you if you won't fill out their forms--"completely"--?

But then I went back to smiling, thinking "She'll win, and big". Stay tuned to the FIJActivist. I'll let "ya'll" know when that happens, asap after it does.