Some Tarrant County prosecutors keep a secret list of people they don't want on a jury for undisclosed reasons, and a Fort Worth criminal defense attorney wants the public to have access to the list.
Prosecutors and defense attorneys typically select a jury after voir dire -- questioning potential candidates. Both sides can reject people who they believe could hurt their case. But Tarrant County prosecutors already have a "bad-juror list" of people they don't want on juries and why.
"They've got these jurors who maybe didn't like them personally," said criminal defense attorney William Ray of Fort Worth, who wants the list disclosed. "They've just blackballed them and said, 'You'll never be on a jury again.'"
Ray has written to Texas Attorney General Greg Abbott encouraging him to force the Tarrant County district attorney's office to make the list public after prosecutors refused Ray's request, sent June 24, to voluntarily provide it.
Tarrant County Assistant District Attorney Ashley Fourt has contested its release, writing in a letter to Abbott that the list is a "work product" -- a designation that could keep it private. She said last week that jurors get on the list based on the subjective impressions of prosecutors, which should not be discussed publicly.
Last year, Ray forced Tarrant County prosecutors to release a more general list of jurors and their verdict histories after filing a request that went to the state. Ray, a former Tarrant County prosecutor, suspects that only four or five prosecutors use the smaller bad-juror list because top officials in the district attorney's office did not know it existed.
Ray said he discovered that last month when prosecutors gave him documents about jurors for a case. At the bottom of one page was "Note: None of the jurors are on the Bad Juror List," he said.
District Attorney Joe Shannon and Fourt said they found out about the bad-juror list only after Ray's request. They also said that they do not know how many names are on the list or how many lawyers use it but that it's only a few pages.
Prosecutors who may have been involved in maintaining the list did not return a request for comment last week.
Ray said some people now take off work and report to jury duty when they have little chance of serving.
"They ought to take everybody as they come in -- not just the ones they like," he said.
'Not a bad idea'
Shannon said he did not know how long the list has existed or what prompted its creation.
Fourt's letter to Abbott, dated June 30, outlines how it works: "At the conclusion of a criminal jury trial, prosecutors and/or staff of this office inserts information about a particular 'bad juror' into a word document. When a jury panel is assembled for a pending criminal case, prosecutors will use this list to aid in jury selection."
Anyone can create such a list, Shannon said.
"I've never used it," he said. "I don't think anybody's been added to it in quite some time. And it's not any organized, ritualistic thing."
Whether bad-juror lists are common remains unclear.
The Texas District & County Attorneys Association has no data on the issue. Several legal experts in Texas and nationwide said they never heard of such lists. Jamille Bradfield, spokeswoman for the Dallas County district attorney's office, declined to comment on whether Dallas prosecutors keep such lists. But The Dallas Morning News reported in 2006 that Dallas County also has a bad-juror list.
Richard Roper, now in private practice in Fort Worth and Dallas, said he kept no such list when he was U.S. attorney for the Northern District of Texas from 2004 through 2008 nor when he was an assistant U.S. attorney from 1987 through 2004."I don't think there's anything untoward about it," Roper said. "The district attorney's office is trying to do their job of zealously representing the state. But I can see how that could be an advantage to the district attorney's office."
Paul Butler, who teaches criminal law at George Washington University Law School in Washington, D.C., also sees the list as an advantage.
"I never heard of it before," said Butler, a former prosecutor for the Justice Department. "But I have to say it's not a bad idea. ... It seems almost more thoughtful and considerate than what a lot prosecutors do, which is to go by looks."
Meg Penrose, who teaches at the Texas Wesleyan School of Law, said people cannot legally be removed from a jury because of race, religion, national origin or gender. She had no issue if Tarrant County rejects potential jurors for other reasons.
"I'm a person who believes that many cases are won or lost at jury selection," said Penrose, who sometimes works as a defense attorney. "A good lawyer would be able to get that information anyway" through voir dire. "Some citizens might find it distasteful, but there's nothing illegal about it."
Warren St. John, president of the Tarrant County Criminal Defense Lawyers Association, said his group keeps no such counter list.
"They can't out-voir-dire me, so I'm not really worried about it," St. John said.
Question of access
Whether the public should have access to the list seems more controversial. "A Bad Juror List, if public, would potentially be embarrassing for the Tarrant County District Attorney, however, that agency should not maintain a list of blackballed jurors," Ray wrote to Abbott. Tarrant County "should not be able to circumvent the process of equality in jury service," Ray wrote.
He said recently that withholding the bad-juror list also "flies in the face of open government."
"I want to know who's on it," he said. "I want to know what they're saying about these people."
Fourt, sticking to legal arguments, wrote to Abbott that the list reflects "the prosecutor's thought process and/or were created or prepared in anticipation of trial or appeal by the prosecuting attorney, his investigator, or agent in a criminal case." During a trial, some people "for some reason or another have been deemed a 'bad juror' by this Office."
Ray wrote that the list was "not prepared for a particular case that is pending. The Bad Juror List is comprised of public records of cases that have concluded and are no longer subject to prosecution."
Fourt also fought last year's release of the more general juror list. State Assistant Attorney General Leah Wingerson wrote that that list must be released partly because Fourt did not explain "how or why releasing the juror history information would interfere with the detection, investigation, or prosecution of crime." People can now buy the list from the district attorney's office.
Shannon said he sees the two lists as separate issues, especially considering the bad-juror list contains prosecutors' private thoughts.
"I would have no doubt that if somebody's name is on it that they might not feel too kindly to the person who put it on there," Shannon said. "I can understand that."
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