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141-308058-19 FILED
TARRANT COUNTY
12/3/2019 2:23 PM
THOMAS A. WILDER
NO. 141-308058-19 DISTRICT CLERK
KENNETH COWEN, Individually and § IN DISTRICT COURT
as Heir of the Estate of Kathryn Cowen, §
Deceased, and KRISTOPHER COWEN, §
Plaintiffs §
§
v. § 141ST JUDICIAL DISTRICT
§
§
BRIGGS MEDICAL SERVICE §
COMPANY; TEXAS ONCOLOGY, §
P.A., US ONCOLOGY, INC.; and §
PHYSICIAN RELIANCE, LLC, §
Defendants § TARRANT COUNTY, TEXAS
TRCP 221 MOTION TO CHALLENGE THE EJURY ARRAY
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW, Kenneth Cowen, Individually and as Heir of the Estate of Kathryn Cowen
and Kristopher Cowen, Plaintiffs in the above entitled and numbered cause, and file this their
Motion to Challenge the E-jury Array, and in support thereof would respectfully show unto the
Court as follows:
1) THE E-JURY ARRAY IS NOT REPRESENTATIVE OF THE MEMBERS OF
THE COMMUNITY OF TARRANT COUNTY AND EXCLUDES QUALIFIED
JURORS
a) The “e-jury” selection system requires the prospective juror to have a computer,
internet access, and knowledge of how to use the computer and to access the internet.
Accordingly, the “e-jury” system excludes potential qualified jurors in the Tarrant
County community from jury service. The “e-jury” selection system excludes
qualified jurors who though economic or other reasons do not own a computer, have
access to the internet, or are without adequate computer and internet knowledge and
skills. For these reasons the “e-jury” system used by Tarrant County for sitting a jury
panel does not represent a random selection of qualified jurors from Tarrant County,
PLAINTIFF’S MOTION TO CHALLENGE THE E-JURY ARRAY PAGE 1
Texas as required under Texas Rules of Civil Procedure the laws and Constitution of
the State of Texas and as required by the Constitution of the United States of
America.
b) In addition to requiring a potential juror to have a computer and internet access,
the potential juror participating in the “e-jury” system of Tarrant County must have
daily email access, must have a telephone number, must be able to sign into the
eResponse system, and must be able to comply with instructions from Tarrant County
on how to make changes to their email system by adding
juryroom@tarrantcounty.com as a safe sender so that the county email notices to them
do not go into their junk folder.
c) The e-jury selection method is one that excludes elderly qualified jurors who may
not have a computer or internet service, those who are not sufficiently proficient with
the computer and internet to navigate the e-jury processes. The Tarrant County e-jury
system excludes qualified jurors who are poor and/or who, for one reason or another,
do not have access to a computer and/or the internet. The Tarrant County “e-jury”
system, through its exclusion of qualified potential jurors in Tarrant County, produces
juries that are not a fair cross section of the Tarrant County community, and on
information and belief tend to produce jury panels that have a defense bias.
d) Plaintiffs assert that under 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
there was an intentional exclusion of a distinctive group of Tarrant County residents
which has resulted in there being an unfair cross section of the community in the jury
panel.
e) Tarrant County’s instructions to “e-jurors” is that they are to report directly to a
specific courtroom. This has the effect of excluding all non “e-jurors” (who, it is my
PLAINTIFFS’ MOTION TO CHALLENGE THE E-JURY ARRAY Page 2
understanding, Tarrant County tells to report to the Central Jury Room, thereby
tainting the process of getting a fair cross section of the community. Because enough
“e-jurors” report to their assigned court, no non “e-jurors” are ever called. The
constitutional and statutory defects here are that the “e-jurors” do not fairly represent
the elderly or the poor, or African Americans and Hispanics, both of which are
distinctive representative racial groups within Tarrant County.
f) To establish a prima facie constitutional violation of the “fair cross section of the
community represented” requirement, a party 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).
g) According to the latest US Census Bureau data from July 1, 20181, African-
Americans account for 17.5% of the population of Tarrant County and Hispanics
29.2% of Tarrant County’s population. These numbers qualify them as distinctive
groups of potentially qualified jurors in Tarrant County. See, Feagins v. State, 142
S.W.3d 532 (Tex. App.—Austin 2004), which recognized that 9.2% of the population
of Travis County was African American and thus a distinctive group. A jury panel
without these distinctive groups properly represented is not a constitutional and
statutory fair cross section of the community.
h) In 2009, it was shown that, nationwide, 76% of whites use the internet while the
rate 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)2. The “e-
jury” system of Tarrant County is unfair and unreasonable in relation to the number of
African American and Hispanic jurors that a selected for jury service. Roughly 3 out
of 10 jurors should be Hispanic and roughly 2 should be African American. Any
1
https://www.census.gov/quickfacts/tarrantcountytexas
PLAINTIFFS’ MOTION TO CHALLENGE THE E-JURY ARRAY Page 3
panel that does not reflect these numbers of these distinct ethnic groups is evidence of
a flawed juror selection system.
i) A jury panel with all “e-jurors” is unfair and unreasonable. If an “e-jury” is used
Plaintiff will never have a jury panel of a true cross section of the community. The
portion of the community that responds to mailed jury summons are told to go to the
Central Jury Room and are never included in an “e-jury”. This process further creates
an unfair cross section of the community. Excluding a portion of the potential
qualified jurors who appear at the Central Jury Room, coupled with 17.5% of African-
American and 29.2% Hispanic percentages in Tarrant County, creates an exponential
increase of the discriminatory effect of an “e-jury”.
j) The policy of allowing jurors to respond electronically to the jury summons and
allowing the “e-jury” to compromise the entire venire panel systematically creates an
unconstitutional under-representation of the poor, elderly, African-Americans and
Hispanics. Feagins v. State, 142 S.W.3d 532 (Tex. App.—Austin 2004).
k) The United States 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.” See, Smith v. Berghuis, 559 U.S. 314
(2010). Accordingly, when African-Americans and Hispanics are 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 Tarrant County “e-jury” system does not provide a jury that
represents a fair cross section of the Tarrant County community. Instead the Tarrant
County “e-jury” system ensures that the “e-jury” panel is an unfair representation of
the Tarrant County community, which is unconstitutional.
l) For the above reasons, and the good faith belief that a challenge to the array of “e
jurors” to be in the best interests of my client, I object to and challenge the array of
any “e-jury” panel that may be brought to the trial of this case. I further request notice
2
https://www.pewresearch.org/internet/2010/01/05/internet-broadband-and-cell-phone-statistics/
PLAINTIFFS’ MOTION TO CHALLENGE THE E-JURY ARRAY Page 4
from the court and an evidentiary hearing on the record to challenge the array prior to
the beginning of voir dire involving any potential jury panel presented a trial through
the Tarrant County “e-jury” system.
2) THE TARRANT COUNTY E-JURY SYSTEM DOES NOT COMPLY WITH THE
REQUIREMENTS OF TRCP 226
a) In addition to Plaintiff’s objection and challenge to the array of any “e-jury”
Plaintiff also does not believe that the methods used through the Tarrant County “e-
jury” selection process ensure that the jurors are properly placed under oath, as
required by TRCP 226, when answering questions throughout the “e-jury” system
selection process.
b) The eResponse page instructs the potential jurors to complete questionnaires
without placing the potential “e jurors” under oath. The jurors are required to fill out a
qualifications questionnaire, and potentially a court specific questionnaire once they
are assigned to a court which, it is represented on the eResponse page, will be sent to
the potential juror via email, presumably to be filled out by them at either their home,
work, or other location outside the presence of the court and counsel in the case. If the
way court specific questionnaires are presented to the potential juror is accurately
described on the Tarrant County eResponse web page, the court and counsel have no
knowledge of the manner and circumstances the questionnaire was answered. For
example, the Court and counsel do not know if their answers to the questionnaire are
under oath, if the potential juror shared the questionnaire with others, whether they
asked questions of others about the questionnaire, who they may have talked to about
the questionnaire, or whether they collaborated with others and who those others may
be that they may have collaborated with when filling out the questionnaire.
PRAYER
WHEREFORE, Plaintiffs request that this Court, upon hearing and the presentation of
evidence, dismiss any “e-jury” called in this case and provide at the trial of this case a random
selection of potential qualified jurors from Tarrant County that represent a fair cross section of
PLAINTIFFS’ MOTION TO CHALLENGE THE E-JURY ARRAY Page 5
the Tarrant County community. Plaintiffs also seek such other and further relief to which they
may show themselves to be justly entitled.
Respectfully Submitted,
By: s/ Tim D. Brandenburg_____________
Roger D. "Rocky" Walton (Texas State Bar No. 20828300)
filings@rockywalton.com
Tim D. Brandenburg (Texas State Bar No. 24049036)
filings@rockywalton.com
LAW FIRM OF ROGER “ROCKY” WALTON, P.C.
2310 West Interstate 20, Suite 200
Arlington, Texas 76017
Telephone: (817) 429-4299
Fax: (817) 429-3469
Attorneys for Plaintiff Kenneth Cowen, Individually and as
Heir of the Estate of Kathryn Cowen, Deceased, and
Kristopher Cowen
CERTIFICATE OF CONFERENCE
A conference was held on the 3rd day of December, 2019 with Bradley Monk, counsel for Texas
Oncology, P.A., US Oncology, Inc., and Physician Reliance, LLC, on the merits of this motion,
and he is unopposed to this Motion.
/s/ Tim D. Brandenburg _____________
Tim D. Brandenburg
A conference was held on the 2nd day of December, 2019 with Wes Myers, counsel for Texas
Health Resources, on the merits of this motion. A reasonable effort has been made to resolve the
dispute without the necessity of court intervention and the effort failed. Therefore it is presented
to the Court for determination
/s/ Tim D. Brandenburg _____________
Tim D. Brandenburg
CERTIFICATE OF SERVICE
This is to certify that on the 3rd day of December, 2019, the above and foregoing instrument was
served on all attorneys of record in compliance with Rule 21 of the Texas Rules of Civil Procedure.
/s/ Tim D. Brandenburg _____________
Tim D. Brandenburg
PLAINTIFFS’ MOTION TO CHALLENGE THE E-JURY ARRAY Page 6
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141-308058-19 FILED TARRANT COUNTY 12/3/2019 2:23 PM THOMAS A. WILDER NO. 141-308058-19 DISTRICT CLERK KENNETH COWEN, Individually and § IN DISTRICT COURT as Heir of the Estate of Kathryn Cowen, § Deceased, and KRISTOPHER COWEN, § Plaintiffs § § v. § 141ST JUDICIAL DISTRICT § § BRIGGS MEDICAL SERVICE § COMPANY; TEXAS ONCOLOGY, § P.A., US ONCOLOGY, INC.; and § PHYSICIAN RELIANCE, LLC, § Defendants § TARRANT COUNTY, TEXAS TRCP 221 MOTION TO CHALLENGE THE EJURY ARRAY TO THE HONORABLE JUDGE OF SAID COURT: COME NOW, Kenneth Cowen, Individually and as Heir of the Estate of Kathryn Cowen and Kristopher Cowen, Plaintiffs in the above entitled and numbered cause, and file this their Motion to Challenge the E-jury Array, and in support thereof would respectfully show unto the Court as follows: 1) THE E-JURY ARRAY IS NOT REPRESENTATIVE OF THE MEMBERS OF THE COMMUNITY OF TARRANT COUNTY AND EXCLUDES QUALIFIED JURORS a) The “e-jury” selection system requires the prospective juror to have a computer, internet access, and knowledge of how to use the computer and to access the internet. Accordingly, the “e-jury” system excludes potential qualified jurors in the Tarrant County community from jury service. The “e-jury” selection system excludes qualified jurors who though economic or other reasons do not own a computer, have access to the internet, or are without adequate computer and internet knowledge and skills. For these reasons the “e-jury” system used by Tarrant County for sitting a jury panel does not represent a random selection of qualified jurors from Tarrant County, PLAINTIFF’S MOTION TO CHALLENGE THE E-JURY ARRAY PAGE 1 Texas as required under Texas Rules of Civil Procedure the laws and Constitution of the State of Texas and as required by the Constitution of the United States of America. b) In addition to requiring a potential juror to have a computer and internet access, the potential juror participating in the “e-jury” system of Tarrant County must have daily email access, must have a telephone number, must be able to sign into the eResponse system, and must be able to comply with instructions from Tarrant County on how to make changes to their email system by adding juryroom@tarrantcounty.com as a safe sender so that the county email notices to them do not go into their junk folder. c) The e-jury selection method is one that excludes elderly qualified jurors who may not have a computer or internet service, those who are not sufficiently proficient with the computer and internet to navigate the e-jury processes. The Tarrant County e-jury system excludes qualified jurors who are poor and/or who, for one reason or another, do not have access to a computer and/or the internet. The Tarrant County “e-jury” system, through its exclusion of qualified potential jurors in Tarrant County, produces juries that are not a fair cross section of the Tarrant County community, and on information and belief tend to produce jury panels that have a defense bias. d) Plaintiffs assert that under 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 there was an intentional exclusion of a distinctive group of Tarrant County residents which has resulted in there being an unfair cross section of the community in the jury panel. e) Tarrant County’s instructions to “e-jurors” is that they are to report directly to a specific courtroom. This has the effect of excluding all non “e-jurors” (who, it is my PLAINTIFFS’ MOTION TO CHALLENGE THE E-JURY ARRAY Page 2 understanding, Tarrant County tells to report to the Central Jury Room, thereby tainting the process of getting a fair cross section of the community. Because enough “e-jurors” report to their assigned court, no non “e-jurors” are ever called. The constitutional and statutory defects here are that the “e-jurors” do not fairly represent the elderly or the poor, or African Americans and Hispanics, both of which are distinctive representative racial groups within Tarrant County. f) To establish a prima facie constitutional violation of the “fair cross section of the community represented” requirement, a party 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). g) According to the latest US Census Bureau data from July 1, 20181, African- Americans account for 17.5% of the population of Tarrant County and Hispanics 29.2% of Tarrant County’s population. These numbers qualify them as distinctive groups of potentially qualified jurors in Tarrant County. See, Feagins v. State, 142 S.W.3d 532 (Tex. App.—Austin 2004), which recognized that 9.2% of the population of Travis County was African American and thus a distinctive group. A jury panel without these distinctive groups properly represented is not a constitutional and statutory fair cross section of the community. h) In 2009, it was shown that, nationwide, 76% of whites use the internet while the rate 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)2. The “e- jury” system of Tarrant County is unfair and unreasonable in relation to the number of African American and Hispanic jurors that a selected for jury service. Roughly 3 out of 10 jurors should be Hispanic and roughly 2 should be African American. Any 1 https://www.census.gov/quickfacts/tarrantcountytexas PLAINTIFFS’ MOTION TO CHALLENGE THE E-JURY ARRAY Page 3 panel that does not reflect these numbers of these distinct ethnic groups is evidence of a flawed juror selection system. i) A jury panel with all “e-jurors” is unfair and unreasonable. If an “e-jury” is used Plaintiff will never have a jury panel of a true cross section of the community. The portion of the community that responds to mailed jury summons are told to go to the Central Jury Room and are never included in an “e-jury”. This process further creates an unfair cross section of the community. Excluding a portion of the potential qualified jurors who appear at the Central Jury Room, coupled with 17.5% of African- American and 29.2% Hispanic percentages in Tarrant County, creates an exponential increase of the discriminatory effect of an “e-jury”. j) The policy of allowing jurors to respond electronically to the jury summons and allowing the “e-jury” to compromise the entire venire panel systematically creates an unconstitutional under-representation of the poor, elderly, African-Americans and Hispanics. Feagins v. State, 142 S.W.3d 532 (Tex. App.—Austin 2004). k) The United States 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.” See, Smith v. Berghuis, 559 U.S. 314 (2010). Accordingly, when African-Americans and Hispanics are 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 Tarrant County “e-jury” system does not provide a jury that represents a fair cross section of the Tarrant County community. Instead the Tarrant County “e-jury” system ensures that the “e-jury” panel is an unfair representation of the Tarrant County community, which is unconstitutional. l) For the above reasons, and the good faith belief that a challenge to the array of “e jurors” to be in the best interests of my client, I object to and challenge the array of any “e-jury” panel that may be brought to the trial of this case. I further request notice 2 https://www.pewresearch.org/internet/2010/01/05/internet-broadband-and-cell-phone-statistics/ PLAINTIFFS’ MOTION TO CHALLENGE THE E-JURY ARRAY Page 4 from the court and an evidentiary hearing on the record to challenge the array prior to the beginning of voir dire involving any potential jury panel presented a trial through the Tarrant County “e-jury” system. 2) THE TARRANT COUNTY E-JURY SYSTEM DOES NOT COMPLY WITH THE REQUIREMENTS OF TRCP 226 a) In addition to Plaintiff’s objection and challenge to the array of any “e-jury” Plaintiff also does not believe that the methods used through the Tarrant County “e- jury” selection process ensure that the jurors are properly placed under oath, as required by TRCP 226, when answering questions throughout the “e-jury” system selection process. b) The eResponse page instructs the potential jurors to complete questionnaires without placing the potential “e jurors” under oath. The jurors are required to fill out a qualifications questionnaire, and potentially a court specific questionnaire once they are assigned to a court which, it is represented on the eResponse page, will be sent to the potential juror via email, presumably to be filled out by them at either their home, work, or other location outside the presence of the court and counsel in the case. If the way court specific questionnaires are presented to the potential juror is accurately described on the Tarrant County eResponse web page, the court and counsel have no knowledge of the manner and circumstances the questionnaire was answered. For example, the Court and counsel do not know if their answers to the questionnaire are under oath, if the potential juror shared the questionnaire with others, whether they asked questions of others about the questionnaire, who they may have talked to about the questionnaire, or whether they collaborated with others and who those others may be that they may have collaborated with when filling out the questionnaire. PRAYER WHEREFORE, Plaintiffs request that this Court, upon hearing and the presentation of evidence, dismiss any “e-jury” called in this case and provide at the trial of this case a random selection of potential qualified jurors from Tarrant County that represent a fair cross section of PLAINTIFFS’ MOTION TO CHALLENGE THE E-JURY ARRAY Page 5 the Tarrant County community. Plaintiffs also seek such other and further relief to which they may show themselves to be justly entitled. Respectfully Submitted, By: s/ Tim D. Brandenburg_____________ Roger D. "Rocky" Walton (Texas State Bar No. 20828300) filings@rockywalton.com Tim D. Brandenburg (Texas State Bar No. 24049036) filings@rockywalton.com LAW FIRM OF ROGER “ROCKY” WALTON, P.C. 2310 West Interstate 20, Suite 200 Arlington, Texas 76017 Telephone: (817) 429-4299 Fax: (817) 429-3469 Attorneys for Plaintiff Kenneth Cowen, Individually and as Heir of the Estate of Kathryn Cowen, Deceased, and Kristopher Cowen CERTIFICATE OF CONFERENCE A conference was held on the 3rd day of December, 2019 with Bradley Monk, counsel for Texas Oncology, P.A., US Oncology, Inc., and Physician Reliance, LLC, on the merits of this motion, and he is unopposed to this Motion. /s/ Tim D. Brandenburg _____________ Tim D. Brandenburg A conference was held on the 2nd day of December, 2019 with Wes Myers, counsel for Texas Health Resources, on the merits of this motion. A reasonable effort has been made to resolve the dispute without the necessity of court intervention and the effort failed. Therefore it is presented to the Court for determination /s/ Tim D. Brandenburg _____________ Tim D. Brandenburg CERTIFICATE OF SERVICE This is to certify that on the 3rd day of December, 2019, the above and foregoing instrument was served on all attorneys of record in compliance with Rule 21 of the Texas Rules of Civil Procedure. /s/ Tim D. Brandenburg _____________ Tim D. Brandenburg PLAINTIFFS’ MOTION TO CHALLENGE THE E-JURY ARRAY Page 6