United States District Court,
v. Weldon LUCAS.
June 16, 1995.
FAULKNER, United States Magistrate Judge.
Petitioner Dianna Brandborg submitted the above-styled petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The petitioner is challenging a conviction for contempt, a sentence of
three days in jail, and a $200 fine imposed upon her by the 211th
District Court of Denton County, Texas on February 7, 1994.
Factual and Procedural History
County Grand Jury indicted James Lee Clark for the capital murder of
two Denton teenagers, Shari Catherine Crews and Jesus Gilberto Garza,
in cause no. F-93-0713-C styled The State of Texas v. James Lee
The 211th District Court summoned a jury panel for Clark's capital
murder trial. Included with the summons was a jury questionnaire. The
questionnaire asked the potential jurors approximately 110 separate
questions and asked if the potential juror had any personal association
with the 115 potential witnesses.
Petitioner received the
questionnaire on January 1, 1994. Petitioner answered almost all of the
questions but found twelve of the questions to be of a private nature.
Petitioner could not understand how the twelve questions at issue would
be of any relevance to a criminal trial. Petitioner noted the
accompanying instructions did not allow her to consult with anyone
concerning responses to the questionnaire. Petitioner consulted a copy
of the United States Constitution and decided to seek guidance from the
court concerning the twelve questions based upon her perceived right to
On January 3, 1994, petitioner returned the questionnaire to the
Honorable Sam Houston, presiding judge of the 211th District Court.
Petitioner attached a letter in which she informed the court:
some of the questions to be of a very private nature, and in my
opinion, having no relevance to my qualifications as a potential fair
and impartial juror. Therefore, I did not respond to those questions. I
respectfully request your consideration in this matter.
Petitioner's questionnaire contained
answers to all questions posed except for the following queries:
What was your combined family income
last year? $ -----
Religious preference (please name
denomination and specific church you attend): N/AWith which political party are you
primarily associated: N/A
Do you consider yourself a liberal,
a conservative or a moderate? N/A
What television shows do you watch
Which magazines and newspapers do
you subscribe to or read regularly? N/A
What type of vehicle(s) do you
To what clubs, unions, societies,
fraternal or political organizations,
professional associations or other organizations do you belong, and
what offices held? N/A
If you do volunteer work, please
indicate the organizations and your involvement: N/A
What reading material do you
routinely read? N/A
Are you presently under the care of a
physician or taking any medication? Yes ( ) No ( ) N/A
Have you or any member of your family
been a member of the National
Rifle Association or any local gun, pistol or hunting club? Yes ( ) No
( ) N/A
On January 19, 1994, the trial court swore in all the potential jurors,
including petitioner, and issued general instructions. On February 7,
1994, the trial court conducted individual voir dire which included a
hearing on petitioner's refusal to answer the thirteen questions
contained in the jury questionnaire. Clark's attorney, Richard
Podgorski, stated: "The juror explains in her letter that she thinks
some of these
questions are very private, and she didn't answer them. I want to ask
that the Court compel her to answer the questions as propounded in this
The court replied "Well, I will do so." Petitioner was then brought
into court. The judge swore in petitioner again and administered
several statutory juror qualifications to petitioner. Petitioner
answered all the statutory questions. The court then made reference to
the unanswered questions stating:
"I'm afraid I'm going to have to order you to answer those. I
understand-- now, these are kept very, very secret. I don't know which
questions you're particularly referring to, but we have got to
require all of the jurors to do this, and I'm afraid you can't be an
exception. So I'm going to need to send you somewhere where you can
answer these as quickly as you can and give these back to us."
Petitioner questioned the appropriateness of the specific
questions concerning "how much money I make, what kind of car I drive,
what church I go to, what religion I am, what political party I am in."
Petitioner asked what would happen if she refused to answer those
specific questions in writing. The court replied that he did not like
the questions either but the
attorneys were entitled to answers to those questions. The judge told
petitioner he would hold her in contempt if she refused to answer the
Petitioner asked "can someone tell me
what relevance those questions have?" The court replied: "Well, I'm not
sure that they would be relevant to a particular case
except it gives the attorneys for both the State and the Defendant an
opportunity to get an overview of what kind of person you are, what
your economic financial status is, which is not extremely relevant in
my opinion in most cases, but mainly to give them an idea of what kind
of person you are where they can make an intelligent decision in
whether or not to exercise one of their peremptory challenges. And
that's basically what it is."
Petitioner continued to refuse to answer the questions due to the lack
of relevance. Petitioner was excused and the trial court continued the
hearing with the lawyers present. The judge noted that he had known the
petitioner and she had no legal standing to refuse to answer the
questions. The state opined that in his two years of practice before
the court, he had always done what the court instructed him and thought
petitioner's refusal was an insult to the court. The state also noted
intended on excusing petitioner from jury service. Mr. Podgorski opined
that petitioner would probably be excused but "if the Court tells her
to do it, she should do it or suffer the consequences."
court had petitioner brought back into court. The judge informed
petitioner of the possible penalty for contempt. Petitioner replied
that "I'm not on trial so--I going to decline, Judge. I'm sorry, I'm
going to decline." The trial court held petitioner in contempt and
asked her to leave the court room while he considered punishment. The
court asked the attorneys what procedure should he follow. The
attorneys agreed to dismiss petitioner from jury service after the
court sentenced her. The trial court sentenced petitioner to three days
in jail and a $200 fine for the contempt. The jail term was to begin on
February 9, 1994.
On February 25, 1994, the trial court signed a third amended judgment
of contempt. The order stated petitioner failed to answer questions on
the jury questionnaire. The judgment ordered petitioner confined on
March 9, 1994. On March 9,
1994, petitioner submitted an application for writ of habeas corpus
with the Texas Court of Criminal Appeals. Petitioner was released upon
bond due to the pending application. In the state application,
1. Petitioner has a constitutional right of privacy in refusing to
answer specific questions which are not shown to be relevant.
2. The trial court abused it's discretion in holding petitioner in
3. Petitioner did not receive statutory warnings prior to being held in
Based upon the record, the Texas Court of Criminal Appeals denied the
application on September 7, 1994. Justice Miller allowed that he would
set the matter for oral argument "with an eye towards granting relief
to petitioner." Justice Baird also would have allowed oral argument on
the first two issues. Petitioner was ordered to begin serving her three
day jail term on September 19, 1994.
Petitioner filed the instant petition on September 15, 1994. The
Honorable Paul Brown, United States District Judge, granted a stay of
execution of the sentence and referred the matter to the undersigned.
On January 27, 1995, the parties consented to the disposition of the
petition before this court.
Clarence Darrow stated a juror's "nationality, his business, religion,
politics, social standing, family ties, friends, habits of life and
thought; the books and newspapers he likes and reads" are all important
subjects for questioning potential jurors. Petitioner asserts that an
attorney's probing into personal matters
must stop at a point beyond relevance to the proceedings of the
particular case to be tried.
A. The Search for an Impartial Juror
search for an impartial juror is a balancing effort by the court
between the competing parties, the public and the potential juror.
Without proper consideration of the rights of each of these interests,
the jury will not be the solid cornerstone of our trial system that it
Within this framework, the competing parties often attempt, during voir
dire, to tilt the balance in their favor by securing partial jurors who
may be sympathetic to the parties specific point of view. In order to
balance the attempt to secure a partial juror over an impartial juror,
the court is often called on to determine the bounds of the inquiry
made by the parties during voir dire. Additionally, the public demands
access to court proceedings. This public access may, and often does,
present a potential intrusion upon the juror's expectation of privacy
which must be protected by the court.
"Questions as to the trial procedure to be adopted in any particular
case must, of necessity, depend upon the issues raised in that specific
case." A factor that should be considered on the issue of
impartiality is the
magnitude of the claim or punishment at stake in the specific case. In
a case, such as the present one, where the jury will potentially be
presented with deciding whether a person should live or die for a
specific crime this factor would be paramount. Since both parties have
a great deal to lose there may be very few relevant questions
that should not be permitted even though they violate a prospective
juror's privacy rights. However, a determination of the relevancy
of the inquiry and a balancing of the competing rights must be
performed by the court. While the
parties have attorneys to champion their rights, the court must protect
the privacy rights of the prospective jurors.
B. Defendant's Right to an Impartial Jury
The Sixth Amendment guarantees "the accused shall enjoy the
right to a
speedy and public trial, by an impartial jury." The selection of an
impartial jury entails the theoretical selection of persons free of
bias or prejudice to either party. Courts have long recognized that "it
is certainly much to be desired that jurors should enter upon their
duties with minds entirely free from every prejudice." However,
the focus in jury selection is often an
exercise by competing parties in securing a very partial jury favorable
to one side over the other....
Thus, the current trend towards an impartial jury requires extensive
voir dire to form a basis for non-suspect peremptory challenges from an
ever increasing cross-section of the community.
C. Juror's Constitutional Right to Privacy
A person may lose his expectation of privacy with respect to
matters by taking an action that opens those matters to public
scrutiny. However, nothing about becoming a prospective juror
amounts to a
willing waiver of an expectation of privacy. "[P]rospective jurors do
not seek out the public forum; they are summoned; often unwillingly, to
fulfill a public duty in the justice systems." Thus, the court is
responsible for balancing the competing interests
and must be able to curb the inquiry in the jury selection process at
the point relevance to the juror's impartiality ceases.
The question presented by the instant petition concerns the length
to which counsel is allowed to inquire into a juror's private affairs
in order to ascertain what prejudices and beliefs a potential juror is
bringing to the proceedings in order that counsel may intelligently
exercise peremptory challenges or challenges for cause.
In criminal trial proceedings there are several competing interests.
The trial court enters as the median between the competing adversaries
and is charged with ensuring the rights of the accused. The accused,
although not a willing participant, is brought in with a host of
rights, which include that of an impartial jury. The state is often the
aggressor in criminal proceedings, in bringing the criminal charges and
prosecuting the accused before the court. The public is present with a
common law right to open proceedings. Among all of the adversarial
proceedings and competing rights is thrown the ordinary citizen as a
potential juror and prospective judge. The juror may receive a summons
commanding that he or she appear at a time certain for potential jury
duty. Absent specific statutory exceptions, the potential juror must
attend the proceedings or face the possibility of criminal or civil
sanctions. The potential juror then becomes a "witness to a process
whose chief purpose is all too frequently to compile as prejudiced a
jury as possible, with each side skillfully using challenges to alter
the jury persuasion in favor of its client."
Petitioner's present claim of asserting her
privacy rights in the refusal to answer certain questions during voir
dire appears to be a question of first impression in the courts. A
historical review of a defendant's right to question jurors generally
focuses on the right to an impartial jury. The rights of the potential
juror are often overlooked and have been rarely, if ever, asserted
prior to petitioner's current stand....
must be given great latitude in allowing or limiting voir dire.
However, the court, while protecting the rights of the accused, the
government, and the public must also protect the privacy rights of the
The limits of a suitable inquiry into a juror's bias and prejudice have
troubled the courts with piece-meal results. The trial court has a duty
to determine the question of actual bias. Questions concerning
race and racial bias have long been recognized as
appropriate areas of inquiry where race is an issue in a criminal
proceeding. Religion has often been a question of prospective
jurors. However, when
religion is unrelated to the issue at trial it is not a proper subject
for inquiry. When an alleged crime concerns war protests,
attitudes towards war is an appropriate inquiry. Ethnic
background is not a proper inquiry when it does not relate to the issue
at trial. The gist of the history of
selecting fair and impartial jurors allows that if the issue is
relevant to determining the bias or prejudice of a prospective juror
then the question is proper. However, jury selection is "not to afford
individual analysis in depth to permit a party to choose a jury that
fits into some mold that he believes appropriate for his case."
A juror cannot be held in contempt for refusing to serve upon a jury or
refusing to answer questions when the service or answer would interfere
with a constitutional freedom. The issue presented by
petitioner concerns the extent to which a juror may claim a right to
privacy in refusing to answer juror questionnaires....
The Constitution creates "zones of privacy" in the expectation of the
fulfillment of the
delineated constitutional rights. Griswold v. Connecticut
(1965). Constitutional privacy rights are divided into two areas.
concerns the individual interest in independence in making some kinds
of important decisions. The second, and the one petitioner claims, is
the individual's interest in avoiding disclosure of personal matters. This
right to privacy might best be described in terms used by Justice
Brandeis as the "right to be let alone" and is the right considered
"the right most valued by civilized man."
"It is not, after all, the prospective jurors who are on trial in
the cases that come before the courts. It can be imagined that, as
counsel seek more and more information to aid in filling the jury box
with persons of a particular type whom they believe to be well disposed
toward their clients, prospective jurors will be less than willing to
serve if they know that inquiry into their essentially private concerns
will be pressed."
D. Public's Right of Access to Jury Information
Petitioner's concern for her privacy is an avoidance of the
of private information to the public. Petitioner stated that the
information sought is the type of information that she would not tell
anyone. The respondent demonstrated that pieces of the information
sought with regards to type of car, political affiliation and personal
wealth were discernable from public records. While the defendant in a
criminal trial may certainly seek relevant information to determine
bias or prejudice, a corresponding interest is the right of the public
to open proceedings in criminal trials.
In Press-Enterprise Co. v. Superior Court (1984),
the Supreme Court noted that the public has a right to open proceedings
in criminal trials which would include voir dire. In considering the
competing rights of privacy for the juror and the right to a fair and
impartial trial for the defendant the court stated:
fairness and at the same time protect legitimate privacy, a trial judge
must at all times maintain control of the process of jury selection and
should inform the array of prospective jurors, once the general nature
of sensitive questions is made known to them, that those individuals
believing public questioning will prove damaging because of
embarrassment, may properly request an opportunity to present the
problem to the judge in camera but with counsel present and on
E. Trial Court's Duty in Jury Selection
It is the duty of the trial court to see that no collateral or
unrelated issues are brought into the case during voir dire. Stated
differently, the judicial duty is "to do what was reasonably
practicable to enable the accused
to have the benefit of the right of peremptory challenge or to prevent
unfairness in the trial."
The increased use of the social sciences in jury selection has
presented an additional burden upon the court in determining what is
relevant inquiry for the purpose of exercising peremptory challenges.
Social scientists make varying claims as to the success of using their
patented techniques in securing the ultimate biased jury. "Regardless
of the present ability of social scientists to pick a jury, however, at
some point, as their theoretical understanding of human behavior
increases and their practical ability to identify subconsciously biased
jurors does likewise, the courts will have to face the issues raised by
their involvement in jury selection."
The trial court has the duty set out in Press-Enterprise.
That is, the court must balance the competing rights of the public, the
defendant and the prospective juror. In order to ensure proper balance,
the trial court should perform a simple two-step process that will
ensure the proper weighing of the various interests. First, prior to
the submission of any proposed questionnaire to potential jurors the
court should screen the questions to determine what questions should be
excluded based upon lack of relevance to the matter at hand. The
parties would then be notified of the excluded questions and
allowed to demonstrate relevance. "When the matter sought to be
explored on voir dire does not relate ... it is incumbent upon
the proponent to lay a foundation for his question by showing that it
is reasonably calculated to discover an actual and likely source of
prejudice, rather than pursue a speculative will-o-the-wisp." Once
relevance could be established to the trial court's satisfaction,
the amended questionnaire could be forwarded to the potential jurors.
The second step would then involve the potential juror answering the
questionnaire or oral questions proposed during voir dire. In the
questionnaire or at voir dire the court should put the juror on notice
concerning their right to non-disclosure of private matters. Once the
juror invokes the right to privacy on an issue, the court must
weigh the relevance of the issue sought by the defendant. If the issue
is relevant but entails a private matter, the court should enter into
an in camera proceeding where the juror is allowed to answer
the question in the presence of the court and the attorneys. The court
may then seal that specific portion of the record concerning
the private matters discussed. This allows the public the maximum
exposure to the proceedings without the disclosure of private matters
which would interfere with the juror's ability to serve.
F. Application to Petitioner
To determine the
outcome in this case, the Court must examine the competing interests
involved. Petitioner may have a constitutionally protected right to
nondisclosure of matters deemed to be private, if that right is not
out-weighed by the rights of the parties to an impartial jury.
Petitioner should not lose her expectation of privacy merely by
becoming a prospective juror. James Lee Clark, the criminal defendant,
also has a competing interest in enjoying his right to a trial by
an impartial jury. Additionally,
the public has an interest in keeping the proceedings open.
These competing interests must be balanced to determine whether a
prospective juror should have to answer questions which are deemed to
be private in nature. The questions involved in the case should have
been examined to determine whether they were relevant to the underlying
criminal case. The questions posed to petitioner must have some
relevance to the question of whether she should be qualified or
from jury service in this case because of bias or prejudice. If the
questions are not directed to procure this type of information, the
questions should not be presented to the prospective juror and the
issue of privacy will not arise.
If the trial court finds that the
questions are relevant to the question of bias or prejudice of a
prospective juror, and the prospective juror raises her privacy right,
the trial court should conduct an in camera
hearing to determine what is the least intrusive means to procure the
information and protect the rights of the prospective juror. In
determining whether the prospective juror should be required to answer
the questions posed, the trial court must balance the competing
interests of the prospective juror, the criminal defendant, the
prosecution, and the public.
Petitioner's specific circumstances do not report a proper balancing of
her right of privacy in relation to the rights of the public and the
parties. The trial court should limit voir dire when the parties seek
information too remote from the issues in the case to warrant invasion
of the potential juror's private thoughts.
Some of the questions posed to the petitioner were personal and may
have impinged on her privacy rights. Petitioner expressed a concern
that the information, although under seal, would not be kept
confidential. An additional concern of many prospective jurors is that
a criminal defendant would possess this private information which could
pose a risk of harm to the prospective juror or his or her family.
Petitioner was not advised that private matters could have been
discussed in camera.
In addition, the relevance of the specific questions at issue was never
considered or established. The trial court's failure to determine the
relevance of the questions and conduct a balancing test of the
competing interests, entitled the petitioner to refuse to answer.
However, a potential juror is certainly not free to refuse to answer
any question propounded when it is found by the court to be relevant,
or potentially relevant, and a balancing of the competing interests is
performed. If a trial court determines that a specific question is
relevant and after conducting a balancing of the competing interests
determines that the prospective juror's privacy rights are outweighed
by the other interests, the prospective juror cannot refuse to answer
the question. However, the court should provide the prospective juror
with the least intrusive means to provide that information.
these facts, petitioner's contempt must be set aside as a violation of
her First and Fourteenth Amendment rights to privacy. A final judgment
will be entered separately from this memorandum opinion.