Texan and former U.S. Supreme Court Justice Tom C. Clark once said, “The jury system improves the quality of justice and is the sole means of keeping its administration attuned to community standards.”
The Constitution of the United States and the State of Texas guarantee anyone charged with a criminal offense the right to a jury trial. As interpreted by both state and federal courts, inherent in the jury right is a jury selection process representing a fair cross-section of the community and jury decisions that are fair and impartial, free of any outside influences.
The Texas Legal Center for Ethics, citing Rule 3.06 of the Texas Rules of Disciplinary Conduct, “Maintaining Integrity of the Jury System,” points to this ethical instruction to attorneys:
“To safeguard the impartiality that is essential to the judicial process, veniremen and jurors should be protected against influences. When impartiality is present, public confidence in the judicial system is enhanced.”
Clerks of Court in Texas are elected to ensure that a fair and impartial jury selection process is in place to protect not only the integrity of the judicial system but to guarantee that jury participation comes from an appropriate cross-section of the community.
Harris and Brazoria County Jury Selection Problems
Harris County Clerk of Court Marilyn Burgess and former Brazoria County Clerk of Court Rhonda Barchak have undertaken practices that undermined their sworn duty to maintain a fair jury selection process.
Last month Burgess hosted an annual Jury Appreciation Week, the clerk’s way of saying “thank you” to residents who participate in jury duty. The event not only gave away “raffle prizes” but featured several prominent Houston officials and personalities as guest speakers. The Texan cheerleaders added gaiety and public interest to the event.
However, one of the speakers at the event —a local KPRC television reporter—got so caught up in the Texan cheerleaders’ inspired gaiety that she praised potential jurors for bringing “justice” to the families of crime victims.
“I’ve seen juries bring justice to many families in Harris County who have lost loved ones to senseless violence,” exulted the reporter to the gathering.
Those comments, and others similar to them, transformed the Jury Appreciation Week ceremonies into an “Appreciation for Juries That Convict Week.”
Recruiting Jurors Who Will Convict
Local attorney Sean Buckley who is representing a defendant charged with murder, expressed the sentiment shared by many other criminal defense attorneys when he said this about the reporter’s remarks:
“It was really tantamount to a pep rally for recruiting groups of jurors to go over to the courthouse and convict people of violent crimes.”
Harris County District Judge Rabeea Collier was so concerned about the comment that she informed the criminal court judges about the remarks and requested a video of the events. To maintain judicial impartiality and jury integrity, Judge Collier stated she would make the video available to any court that seated juries during Jury Appreciation Week.
Buckley shared his concern and outrage at the “convict for justice” tenor of the event with Judge Te’iva Bell, the trial judge in his client’s case, who decided to declare a mistrial out of an abundance of caution.
District Attorney Kim Ogg’s office, which supports any “celebration to convict event,” had this to say about Buckley’s client:
“We will do all we can to protect society from this defendant who is accused of a vicious murder. We will not be deterred in our efforts to see that all the facts are presented to a jury in a fair trial and that justice is done.”
Just as the reporter told the jury appreciation event attendees, the district attorney’s office defines “justice” as being done when a jury convicts, not when juries acquit those accused of a crime. An acquittal is a travesty, and justice is a conviction. That’s how they roll in Ogg’s office.
Racist, Biased Jury Selection Process Texas Style
Then there is the case of the former Clerk of Court in Brazoria County, Rhonda Barchak, who devised a jury selection process for at least six years to convict non-white criminal defendants.
The Houston Chronicle and Texas Monthly reported in-depth last fall about Barchak’s potentially criminal actions. Barchak quickly resigned, and the Texas Rangers launched an investigation to determine if Barchak had violated any laws with her unique jury selection process.
Michael Hardy, the author of the Texas Monthly piece, said, “If courts find Barchak’s method illegal or unconstitutional, thousands of criminal, civil, and family court verdicts could be subject to appeal, and the county may be open to civil liability.
Local attorney Jeff Purvis told Hardy:
“There are parents out there who had their rights terminated. A mother might say my child was taken away from me, and that illegally done by a jury. There’s a tremendous amount of liability on the part of the county.”
The Texas Rangers’ investigation determined that there was evidence Barchak had violated jury selection process laws prompting the district attorney to present the matter to a grand jury. The grand jury refused to indict Barchak this past February. Not surprising given the political climate in Brazoria County.
The Rangers report, made public in January, stated that Barchak confessed to 239th District Judge Patrick Sebesta that she separated jury cards into four categories: “Pearland white, Pearland non-white, non Pearland white, and non Pearland.”
The grand jury’s decision not to indict notwithstanding, Barchak’s racially explosive jury selection process will continue to reverberate for years to come.
Houston attorney Carroll Robinson, Chairman of the Texas Coalition of Black Democrats, has requested an investigation by the U.S. Justice Department.
“What happened down in Brazoria County is an example of a kind of jury tampering. My hope is that the Justice Department will come in, not just in Brazoria, but look more broadly. If it’s happening in one place, it may be happening in others,” Robinson told the Texas Lawyer, noting that “hundreds of criminal and civil cases” were affected by Barchak’s racist jury selection process.
Houston Attorney Stanley G. Schneider, whose client, Darrell Adell Jr., was sentenced to life in prison following a conviction for murder in Brazoria County, filed a motion for a new trial based on the biased jury selection process. However, in this case, The trial court presided over by District Judge Terri Holder denied the motion for a new trial.
Schneider is appealing the denial of the motion for new trial, arguing correctly that the trial judge should have recused herself because she had knowledge of the illegal jury selection practice and was potentially a witness. Schneider alleges that Judge Holder was informed of Barchak’s “intentional elimination of jurors and asked her to stop the practice, but took no steps to stop the illegal practice and reported it to nobody with the authority to intervene.”
In Texas, jury summonses are required by law to be randomly submitted to the courts to avoid this very sort of jury selection bias. Obviously, Barchak knew this as did Judge Holder.
Sean Buckley leveled this jury tampering charge at Clerk Burgess’ “Jury Appreciation Week”:
“In over two decades of trying cases it is the most egregious example of attempted jury tampering that I’ve seen.”
We agree with both attorneys.
These two clerks set into motion events designed to encourage prospective jurors to convict in order to obtain “justice.”
We also endorse Robinson’s call for a U.S. Justice Department investigation into the jury selection process in all Texas counties.