By Gene Trainor
The Tarrant County district attorney's office can keep its "bad-juror list" private, the Texas attorney general's office has decided.
Assistant Attorney General James Morris agreed with the district attorney's office that the document should be exempt from disclosure because it contains prosecutors' subjective impressions and is used in preparation for trials.
Morris cited a 1983 state open-records decision that "disclosure of prosecutors' subjective comments about former jurors would tend to indicate state's possible strategy in future prosecutions and in doing so would compromise state's effectiveness in prosecuting criminal matters."
But Fort Worth criminal defense attorney William Ray, who had requested the list, says that keeping it private "flies in the face of open government" and gives prosecutors an advantage.
Prosecutors and defense attorneys usually select a jury after voir dire, when they question potential jurors. Both sides can reject people who they believe could hurt their case. But some Tarrant County prosecutors keep a "bad-juror list" of people who had previously served on juries. The list includes why they should not serve again.
The debate centers on the public's right to know versus what constitutes "work product," often defined as the mental or subjective impression or opinions of an attorney or his investigator. Typically, work product is not subject to public review.
Tarrant County Assistant District Attorney Ashley Fourt, who asked for the attorney general decision, said that Ray was asking for work product.
"I think the A.G. made the right decision," she said.
Ray said he asked for the list with prosecutors' comments and the list without prosecutors' comments. He said that Morris answered the first question, about the list with prosecutors' comments, but not the second, for the names alone. He said he sent a letter to the state asking that the second question be answered.
Thomas Kelley, press secretary for Attorney General Greg Abbott, said that the ruling, made in September, covers both questions.
Fourt outlined how the list gets created after she sent a letter to the state, dated June 30, asking that the list be kept private. After a criminal jury trial ends, prosecutors or their staff insert information about a "bad juror" into a word document, she wrote.
"When a jury panel is assembled for a pending criminal case, prosecutors will use this list to aid in jury selection," Fourt wrote.
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 attorney general. Fourt also fought last year's release.
Assistant Attorney General Leah Wingerson wrote that the more general list must be disclosed partly because Fourt did not explain "how or why releasing the juror history information would interfere with the detection, investigation, or prosecution of crime."
That list is available for purchase from the district attorney's office.