Motion Challenging Jury Array 
and to Quash Jury Panel
by Mark Ryan Thiessen
In this electronic age jurors are now being summoned via email to our courts. Pursuant to Article 34.05 of the Texas Code of Criminal Procedure, Montgomery County allows those people summoned to respond via email for jury service, making them “E” jurors. The clerk then instructs each “E” juror to report to a specific court, while the non-“E” jurors report to a pooling center and are used as extras, if at all. Houston attorney Mark Thiessen found that by combining the Montgomery County Clerk statistics regarding the number of people who reported via email (about 50%) with the rate of internet usage by African Americans and Hispanics, there was an exponential increase in the discriminatory effect. His conclusion was that a venire panel comprised of all “E” jurors is unconstitutional, as it unfairly represents a cross-section of the Montgomery County community.
CAUSE NO. _______

STATE OF TEXAS	§	IN COUNTY COURT
	§
V.	§	AT LAW NO. _______		§
_______________	§	MONTGOMERY COUNTY, TEXAS

TO THE HONORABLE JUDGE OF SAID COURT:
	The Defendant requests this Court, under the authority of the 6th and 14th Amendments to the United States Constitution, Article 1, Sections 3 (“all free men have equal rights”), 10 (“public trial by impartial jury”), 13 (“shall have remedy by due course of law”), 15 (“right of trial by jury shall remain inviolate. The Legislature shall pass laws . . . to maintain its purity[.]”), 19 (“no citizen of this State shall be deprived of . . . liberty . . . except by due course of law”) of the Texas Constitution, and the Texas Code of Criminal Procedure §§34.02, 34.05, 35.06, and 35.07, to quash the instant jury panel because an intentional exclusion of a distinctive group of Montgomery County residents has resulted in an unfair cross-section of the community in the jury panel. In support hereof, the Defendant would show:

I.
	This jury panel is solely composed of persons who responded to an email for jury service. The legal community in Montgomery County has named this type of panel an “E” jury panel. The Defendant, under Section 35.07 of the Texas Criminal Code of Procedure, is challenging the legality of this jury because it is not fairly representative of the cross section of this community. 

II.
	To clarify, Defendant is not challenging the legality of the electronic jury selection process under Article 34.05 of the Texas Code of Criminal Procedure. Rather, what is at issue is the County’s instructions to “E” jurors to report directly to a specific courtroom, which has the effect of excluding all -“E” jurors (who are instructed to report to the Jury Assembly Room), thereby tainting the process of getting a fair cross-section of the community. Because a sufficient number of “E” jurors always report to the court, no non-“E” jurors are ever called to report there. The constitutional and statutory defects here are that the “E” jurors do not fairly represent African Americans and Hispanics, both of which are distinctive representative groups within Montgomery County.

III.
	To establish a prima facie constitutional violation of the “fair cross-section of the community represented” requirement, a defendant must show: 

(1) that the group alleged to be excluded is a “distinctive” group in the community; 
(2) 
that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and, 
(3) 
that this underrepresentation is due to systematic exclusion of the group in the jury selection process.” 

See Pondexter v. State, 942 S.W.2d 577, 580 (Tex.Crim.App. 1996). Noncompliance with the mode and manner of summoning venire members set out in the Texas Government Code is error whenever a defendant establishes harm. Lewis v. State, 815 S.W.2d 560 (Tex.Crim.App. 1991); Tex. Gov’t Code Ann. §62.001 (Vernon 2007).

IV.
	Defendant objects to an “E” jury deciding this case. According to the U.S. Census Bureau, African Americans and Hispanics respectively account for 5% and 18% of Montgomery County’s population. See Exhibit 1: Montgomery County QuickFacts from the U.S. Census Bureau. See also Feagins v. State, 142 S.W.3d 532 (Tex. App.—Austin 2004) (Appellate court recognizes 9.2% of the population of Travis County is African American and thus a distinctive group). A jury panel without this distinctive group is not a constitutional and statutory fair cross-section of the community. 
	In 2009, it was shown that nationwide, 76% of whites use the internet at home while the rates for African Americans and Hispanics were 70% and 64%, respectively. See Pew Internet & American Life Project and the Graduate School of Library and Information Science and the University of Illinois at Urbana-Champaign report “Report: Internet, Broadband, and Cell Phone Statistics” (December 2009). The “E” jury here is unfair and unreasonable in relation to the number of such persons in the Montgomery County community when this jury panel only contains ___ African American and ___ Hispanic people in a ____-person venire and all are “E” jurors. (For example: A 24-person panel should contain roughly 1 African American and 4 Hispanics; 36, 2 and 6; 48, 2 and 9; 60, 3 and 11, African Americans and Hispanics, respectively.) 
	A venire with all “E” jurors is unfair and unreasonable when the population numbers in Montgomery County reflect that approximately 50% of potential jurors respond via email because the other half of the population reports to the Crighton and is never included in an “E” jury, further creating an unfair cross-section of the community. See Exhibit 2, Montgomery County Clerk Certified Statistics of 2009 Jury Data. Excluding the half of the population that does not report via email, coupled with 5% of African American and 18% Hispanic percentages in Montgomery County, creates an exponential increase of the discriminatory effect of an “E” jury, especially in the Hispanic demographic. The policy of allowing jurors to respond electronically to the jury summons and allowing the “E” juries to make up the entire venire panel systematically creates an unconstitutional under-representation of African Americans and Hispanics. Feagins v. State, 142 S.W.3d 532 (Tex. App.—Austin 2004) (“keeping the ratio of internet to in-person responses the same in venires as it is in the overall response population . . . works to ensure that a systematic exclusion does not take place”). 
	Most recently, the Supreme Court noted “the Sixth Amendment is concerned with social or economic factors when the particular system of selecting jurors makes such factors relevant to who is placed on the qualifying list and who is ultimately called to or excused from service on a venire panel.” Smith v. Berghuis, 543 F.3d 326 (6th Cir. 2008), rev’d 130 S.Ct. 48, n.6 (2009). Accordingly, when African Americans and Hispanics are further disqualified for a jury based on whether they have internet access, then the Sixth Amendment is absolutely affected by the social and economic factors that accompany internet access, i.e., financial ability to own a computer, computer literacy, internet access, etc. Consequently, the “E” jury does not represent a fair cross-section, is an unfair representation of the community which constitutes error, and denies the Defendant an opportunity to have his case decided by a lawful jury. 

PRAYER
	WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully requests this Honorable Court to quash the instant jury panel and requests a panel be brought in that does represent a fair cross-section of the Montgomery County community: “E” and non-“E” jurors.

	Respectfully submitted,
	TRICHTER & MURPHY, P.C.

	By: ______________________________
	MARK RYAN THIESSEN
	SBN 24042025
	The Kirby Mansion
	2000 Smith Street
	Houston, Texas 77002
	Tel: (713) 524-1010 
	Fax: (713) 524-1080

	Attorneys for Defendant,
	________________________

CERTIFICATE OF SERVICE
	I hereby certify that a true and correct copy of the above and foregoing Motion for has been furnished to the District Attorney presently assigned to this case, on this the ____ day of ________________________________, 2010.

	______________________________
	MARK RYAN THIESSEN