DIANNA WINS! Chalk one up for a juror's right to privacy

Dianna Brandborg, cited for contempt of court in Denton, Texas nearly a year and a half ago for refusing to answer several questions on a juror questionnaire, has apparently prevailed in her appeal of that charge. Hers was the first recorded case in the United States in which a contempt citation had been issued to a potential juror for refusal to answer voir dire questions on grounds that they were invasions of privacy.

Her argument was that the questions were not only too personal, but irrelevant to juror qualification for the murder case which she would have judged if she had been empaneled. On June 18, federal magistrate Robert Faulkner agreed, concluding that it appeared District Judge Ira Sam Houston had not considered the relevance of the questions, or balanced the defendant's right to an impartial jury with the juror's right to privacy.

Brandborg's victory didn't come easily. Her attorney, Rick Hagen, filed an appeal on her behalf immediately after Judge Houston issued the citation, so that she never had to spend the three days in jail or pay the $200 fine Houston imposed.

So far, so good. But the Texas Court of Criminal Appeals then decided not to rule on the case, so Hagen had to refile the appeal in federal court. According to Denton FIJA activist Ross Melton, who attended the federal court hearing this past January, it seemed then that Dianna's attorney made the better arguments, and that the judge was receptive.

But months more passed before the decision was issued, at which point Houston tried to get Denton County to appeal the case on his behalf. But the county government had apparently had enough, especially with the Republican Party, dominant in the vicinity, applying what is alleged to have been "considerable pressure" to stop wasting taxpayer money and to spare Mrs. Brandborg further agony.

Houston, now retired, describes himself as "mad as hell" that the county has refused to pursue his appeal, and insists he did "balance" the rights of the defendant and jurors, to which Melton commented, in a letter to the Denton Record-Chronicle, that he should then write his own appeal. The mayor of nearby Corinth opined that Houston should "go fishing and enjoy his retirement". Others of Dianna's supporters, which have included demonstrators, state legislators, and Lone Star FIJA activists, are jubilant.

So is Dianna, who left for a protracted vacation in Wisconsin right after holding a news conference upon hearing Judge Faulkner's decision. In a telephone interview, she expressed great relief from the stress she and her husband have been under. When asked if it were "really all over", she said "all except for the fact that I now have to sue the D.A. in order to have my record expunged--you know, fingerprints, mug shots, all that--it remains available to any law enforcement official from now on unless I get it all expunged. So here we go again, back to court."

Brandborg also said that she has two hopes regarding the outcome: [1] that the case will be published, so that others who may have a similar problem will be able to find and use her case as a basis for defending themselves; and [2] that the Texas State Legislature, in its next session, passes a bill protecting juror privacy on the same basis that her case was decided--requiring that a "balancing test" be performed whenever a potential juror objects to a voir dire or jury questionnaire item on the basis of privacy, and questions its relevance to the case at hand.

"In this year's bill, the sponsors only tried to make certain questions off limits. But in my testimony, I said it should be up to the prospective jurors to decide what questions invade their privacy, because different people have different topics they're sensitive about. Maybe in the next session they can word a juror privacy bill that way," Brandborg said.

Our take on the decision is that it is potentially preservative not only of juror privacy, but of the jury system: if potential jurors became aware that they could be punished for not spilling their guts during voir dire, any of them wanting to maintain personal privacy would simply not show up in court in response to their summons. Maybe they'd run into Judge Houston down at the lake...