Transcript of Proceedings September 21, 1989 - Volume IV
Public Court Documents
February 5, 1990
328 pages
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Case Files, LULAC and Houston Lawyers Association v. Attorney General of Texas Hardbacks, Briefs, and Trial Transcript. Transcript of Proceedings September 21, 1989 - Volume IV, 1990. 44e1bf86-1b7c-f011-b4cc-6045bdd81421. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/4711535d-62ca-4e15-911b-f462f55bcac9/transcript-of-proceedings-september-21-1989-volume-iv. Accessed December 24, 2025.
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1 IN: THE UNITED: STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
MIDLAND-ODESSA DIVISION
GUE OF UNITED LATIN AMERICAN) LEA
TTIZENS {(LULAD), ‘et al, C
Plaintiffs,
CAUSE NO. MO-88-CA-154
Midland, Texas
V.
JIM MATTOX, Attorney General
of the State of Texas, et al.
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Defendants.
TRANSCRIPT OF PROCEEDINGS
SEPTEMBER 21, ‘1989
oo VOLUME IV OF V VOLUMES
TRANSCRIPT ORDERED BY: DEFENDANTS
TRANSCRIBED BY: MR, JIMMY R., SMITH
Court Reporter
UY. SS. District Court
P.O. Box 17174
Midland, Texas 79702
APPEARANCES:
FOR THE PLAINTIFFS: MR. ROLAND L. RIOS
Southwestern Voter Registration
Education & Project
Swite 521, "201 St.Mary's .St.
San Antonio, Texas 78205
MS. SUSAN FINKELSTIEN
Texas Rural Legal Aid, Inc.
Suite 521, 201 St. Mary's 'St.
San Antonio, Texas 78205
TR ET RE AF Ty Ry ST YE SE VT I To TS TE amr On A TT pF Tee 2 2
APPEARANCES: (Continued.)
FOR THE PLAINTIFF:
FOR THE HOUSTON
PLAINTIFF INTERVENORS:
FOR THE DEFENDANTS:
FOR JUDGE SHAROLYN
P. WOOD:
I RE ER A I YR ST J I A BT J SI TA WTI A RT a re Le eras: YT IAT SY et TNT 3 Les ee Lr el Se el NE Ee RT i . Era ploidy .
GARRETT, THOMPSON & CHANG
Attorneys at Law
Suite 800, 8300 Douglas
Dallas, Texas 75225
BY: *MR. WILLIAM L. GARRETT
MS... 2BREMDA “HULL “THOMPSON
MS. SHERRILYN IFIL
NAACP - Legal Defe
Education Fund
16th Floor, 99 Hudson Street
New York, New York 10013
L
nse and
MULLINAX, WELLS, BAAB, &
CLOUTMAN
Attorneys at Law
3301 Elm Street
Dallas, Texas 75226-9222
BY: MR. EDWARD B. CLOUTMAN, III
MR. E. BRICE CUNNINGHAM
Attorney at Law
Suite 21,
777 South R. 1. Thornton Fuy.
Dallas, Texas 75203
Attorney General of Texas
Supreme Court Building.
P.. 0. Box 12548
Capitol Station
Austin, Texas 78711-2548
BY: MR. JAMES C. TODD
MR. RENEA HICKS
MR. RAFAEL QUINTANILLA
MR. JAVIER P. GUAJARDO
PORTER & CLEMENTS
Attorneys at Law
3500 RepublicBank Center
700 Louisiana Street
Houston, Texas 77002
BY: MR. J. EUGENE CLEMENTS
MS. EVELYN V. KEYES
APPEARANCES: {Continued.)
FOR JUDGE SHAROLYN MR. MICHAEL J. HOOD
P. WOOD: Attorney at Law
Sulte 200, 440 Louisian=s
Houston, Texas 77002
MR. DARRELL FRANK SMITH
Attorney at Law
Suite 905, 10999 Inter
San Antonio, Texas 78230 0
(M
D
(
FOR JUDGE F. HAROLD HUGHES & LUCE
ENTZ: Attorneys at Law
3800 Momentum Place
1717 Main Street
Dallas, Texas 7201
BY: MR. ROBERT H. MOW, JR.
MR. BORRY M. RURARTS
MR. DAVID C. GONREYV
ya A BH AY 32, a weg 37 TX Tyra ony mm eS TS FT A TOSS AY 2 magn 0 re
24
25
rE mm ET 7 RT We Pm, CT a STN, MT Le TE EO EAA BA Jy
INDEX
PROCEEDINGS OF SEPTEMBER 21, 1989:
Open Court
Witness sworn
Witnesses:
WELDON H. BERRY
By the Court
Freliminary matters
Direct examination by Ms. McDonald
Cross examination by Mr. Clements
Redirect examination by Ms. McDonald
Fecross examination by Mr. Clements
Redirect examination by Ms. McDonald
Brief recess
Open Court
Housekeeping matters
Witness sworn
HAROLD ENTZ
By the Court
Direct examination by Fr. Mow
Cross examination by Mr. Cunningham
Redirect examination by Mr. Mow
Witness sworn
ANTHONY GHAMPAGNE
By the Court
Direct examination by Mr. Godbey
Noon recess
Open Court
Cross examination by Mr. Cloutman
Witness sworn
FAGE NO.
BJ
kJ
D
h
(o
d
0
0d
PE IT RA I Jy Tr ye eT
EAT rE ee A Kom SW 3 £
RR STP $A TY TT A TE J i nN AR TIRE TILT ST Oe A TT a Ze ge pe a tat
INDEX {continued}
CAROLYN WRIGHT
By the Court
Direct examination by Mr. Mow
Cross examination by Mr. Cunningham
Redirect examination by Mr. Mow
Recross examination by Mr. Cunningham
Witness sworn
TOM JAMES
By the Court
Direct examination by Mr. Mow
Cross examination by Mr. Cloutman
Brief recess
Open Court
Discussion off the record
Deposition of Manuel Leal
Deposition summary of Ray Hardy
Deposition summary of Richard Murray
Defendant Intervenor Wood rests
Brief pause
Housekeeping matters
Stipulation regarding listing of Texas attornevs
Witness sworn
+ JAMES ALAN DYER
By the Court
Direct examination by Mr. Guajiardo
Cross examination by Ms. Finkelstein
Redirect examination by BGuajardo
Court recessed for the evening
— FET Sp ST
FAGE NO.
24
25
py i PEER ET HT SN LT NTR TP Sees pe bila ah Dea a i ot Rte SCT et Bi te cet : ar
2B NEE YE ey ATV ay :
EX H I BH JI T658
NUMBER
OFFERED ADMITTED
FROCEEDINGS OF SEFPTEMERER 21, 1989:
Exhibits listed as offered by attorneys and so designated:
Plaintiffs:
Houston Plaintiff Intervenors:
7
Dallas Plaintiff Intervenors:
< mentioned on page 151
18A mentioned on page 74
Defendants:
2 mentioned on page 292
iA
mentioned on page 292
Lh
through 12 mentioned on page 292
13 through 3% mentioned on page 292
37
IJ
38 through 40 mentioned on page 29
ENT RR A A ST I eR
71
[JN
0 th
[pN
{0
Ln
E YH I BH I 17S {lecontinasd)
2
3 [|NUMEBER OFFERED ADMITTED
4 |Houston Defendant Intervenors:
5 1 mentioned on page 50
6 2 mentioned on page &2
y i 12 270 —
8 13 275 -
9 i4 277 277
10 iS 275 -—
11 i6 282 we
12 17 283 284
13 20 through 33 28 38
14 21 284 286
15 a3 72 72
16 24 72 72
17 ba 72 72
18 2b 293 -
19 a8 284 286
20
21
Dallas Defendant Intervenors:
22 || #
1 through 23 72 -
23
24
25
TI Spm RT IX OTT
OF 1%) TR TI TI A Fr ee A AY
24
25
PROCEEDINGS OF SEPTEMBER 21, 1989:
{Open Court.)
THE COURT: Good morning. I must advise that when
I got ready to leave yesterday afternoon Judge Davidson was
out in the hall. I wished him well on his way back to
Dallas. He asked me, said do you think I was nervous? 1
said no, you didn’t appear to be nervous. He said, well, I
was, he said I have never been in a courtroom with that high
a ceiling. I don't know what the ceiling means to be high,
but evidently in Houston all of your courtrooms down there
are low ceilings. We don’t have many hurricanes out here.
Call your next witness.
MS. McDONALD: I think intervenors Houston Lawyers
Hesnaiiakian. et al, will call Judge Weldon Berry, please.
THE COURT: Raise your right hand, please, sir.
(Witness sworn.)
THE COURT: Have a seat right over here, please.
MS. McDONALD: Your Honor, those documents that
are sitting there, they have nothing to do with Judge
Berry's testimony. Can I get them away?
THE COURT: If you would, please, just take the
exhibits from there, if you would, please.
MR. CLEMENTS: Excuse me, Your Honor. The
documents on the left are Judge Berry's deposition, in
accordance with your request that a clean copy of the
4-3
deposition be placed before the witness before the testimony
starts. And the defendants’ exhibits, we would like for
those to stay.
WELDON H. BERRY, WITNESS, sworn
EXAMINATION
BY THE COURT:
@G. Okay. Tell me your name, where you live and what you
do, please.
A. Sir, my name is Weldon H. Berry. 1 am a practicing
attorney in Harris County, Texas.
G. You live in Houston?
A. Yes, sir, 1 do.
Q. All right. Give me a little about your educational
background and your work history, if you would, please.
A. I was, I am a graduate of Texas College, a small
denominational school in East Texas. It was supported by
the then Colored Methodist Episcopal Church. I served in
the U. S. Air Force in World War II as a bombardier and as a
pilot. I was honorably discharged, worked for the YMCA for
a few years. I went to law school, then Texas State
University for Negroes in the law school there. I graduated
in 1952 and was admitted to the State Bar in April of that
same year. I have practiced law continuously from that
date. My private practice was interrupted by my appointment
to the bench of the 80th District Court of Harris County,
Berry — By the Court {4-4
Texas in July of 1983. 1 served the balance of 1983, and
all of 1984 until I was defeated in the election of 1984. 1
returned to private practice of law, and that is where 1 am
now.
a. I am glad to have you here, Mr. Berry. One, you are as
old as I am. I like to have people my age in the courtroom,
and with all these children that practice before me, you
understand, I get to feeling very lonesome up here. All
right. You are called here by the plaintiffs. You may
proceed.
MS. McDONALD: Thank you, Your Honor.
THE COURT: And as in Judge McDonald's Court, we
always use the lectern.
MS. McDONALD: Yes. sir. I am, I will. I needed
some exhibits. One preliminary matter, if I may. Judge.
Again, we have a witness problem. Do you want to talk about
it later? One who is trying to get here. Senator Craig
Washington, he is running. you know, for a Congress
position. He was in an automobile accident. We expected
that he would be here Thursday. I called last night, I
called this morning, I just asked Ms. Ifill to call again.
1 spoke with him this morning and he said he was doing
pretty well, if he could get on the plane he would be here
during this afternoon. We took his deposition. And 1 say
we, Mr. Clements was there. It was lengthy, it was many
4-5
hours, questions from Mr. Clements, not so many questions
from me. Also LULAC representatives were there, and also
diate repressntiiives were there. I just want to alert you
to the problem.
THE COURT: Do you want me to get a doctor for the
Senator?
M5. McDONALD: No, sir.
THE COURT: Do you want me to get a plane to pick
him up?
MS. McDONALD: I was asking him just to hang in
there and come. I begged him last night, I begged him this
morning, and Ms. Ifill is now trying to find out whether he
will be here. If not, we will have his deposition and go
°
with that. —
THE COURT: We have got good air service from
Houston. If he can make it to Hobby or International either
one.
THE COURT: Mr. Mow?
MR. MOW: I just want to find out if we are on
next, to make sure our people come.
THE COURT: One thing, you went to an Episcopal
school in Tyler?
THE WITNESS: Yes.
THE COURT: A bit of trivia.
THE WITNESS: Sir?
THE COURT: A bit of trivia. You probably don’t
know, or you may know that 60 years ago today that the
Vestry of the Episcopal Church in New York refused
admittance to Blacks.
THE WITNESS: No, sir, I didn’t.
THE COURT: You probably didn't know that.
THE WITNESS: No, sir.
THE COURT: Okay. Well, I just wanted to know if
you knew your Episcopal history.
THE WITNESS: Well, the Colored Methodist
Episcopal Church is not essentially an Episcopal Church. I
think they just threw the Episcopal in there.
THE COURT: It sounded good in the name?
THE WITNESS: Yes, sir.
THE COURT: Okay. Go ahead.
DIRECT EXAMINATION
BY M5. McDONALD:
G. How old are you, Mr. Beery? Since we are talking
age.
A. 68.
@. And for the record, sir, what is your race?
+A. I beg your pardon?
BG. What is your race? Are you Black, White, African
American, something else?
about
A. Well, Ms. McDonald, I am confused. When I started out
24
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Berry — Direct - McDonald 4-7
I was known as Colored, and then later I evolved into a
Negro. And now I find myself a Black man.
Q@. Also you may be, if you listen to Mr. Cloutman and read
newspapers and you believe them, you may be an African
American.
A. I could be.
QB. So you are all of those? And you have lived in Harris
County how long, sir?
A. Since 1948.
@. And where were you born, Mr. Rerry?
A. In Dallas, Texas.
G. And then as you told the Judge, you went to college in
Tyler?
A. Yes, sir.
@. And then you went to the Texas State University for
Negroes; is that correct?
A. In Houston.
@. And you graduated, when was that. sir, again?’
A. 1952.
@. Did you receive any education after that?
A. No.
8G. Are you a lawyer?
A. Yes, sir, 1 am.
8G. When did you, when were you licensed as a lawyer in the
State of Texas?
FT YT FR Ty “eT PET re me pr TR " pap cv — mer ER nn RE
Ti Fa Long St fut Ee Sr cl ge: and ta
Berry — Direct - McDonald 4-8
1 A. In April of 1952.
2 @. And have you been practicing as an attorney in Harris
3 ||County since April of 19327
4 A. Yes, 1 have.
5 G. Tell me about the type of practice you have had.
6 ||Starting in 1952, tell me what kind of practice you have
7 llhad. Were you a solo practitioner, were you in a major law
g||firm, tell me about that?”
9 A. I was a sole practitioner and I was in the general
10 ||practice of law, I had no major corporate retainers. 1
11 ||depended upon a large volume of clientele to sustain myself.
12 ||It was shortly after I began practicing law that I became
13 |involved in extensive civil rights litigation. I was local
14 ||[counsel for the legal defense and educational fund of the
15 ||INAACFP. As such it was a welcome departure from copping out
16 ||DWI "ss and misdemeanor thefts to practice in the Federal
17 {Courts involving desegregation suits. Primarily in school
18 ||desegregation suits. I was involved in several suits
19 ||involving school districts within Harris County, and many
20 [|[throughout the State of Texas. In addition I filed the
21 ||first lawsuit which resulted in Elacks and Whites engaging
22 lan the sport of boxing Within the ring. At the time Blacks
23 ||lwere not permitted to fight Whites within the same boxing
24 ring, believe i1t or not. This was several years ago.
25 8G. And in addition to your practicing civil rights law,
EA TE RNS PT Ty p= Emm mrs a TI tan pm" - Trp a a Le - — . nd a at fas « im es pn my a
Berry — Direct - McDonald 4-9
did you practice in Federal Courts handling criminal cases”?
A. Yes, 1 did.
@G. And then the other practice, did you also practice
civil law?
A. Yes, 1 did.
CG. When I say civil law, civil litigation as opposed to
criminal litigation.
A. Yes.
GG. And you have done that now for how many years. 40 years
or so?
A. Closer to, 82 from 89 leaves about 37 years.
Gg. All right. 37 now. Sir, have you ever served in a
judicial position?
A. I served as Judge of the 80th District Court from July
of ‘83 through December of "84.
G. How did you assume that, how did you get to that bench?
Don't tell me that you walked or whatever, 1 mean were you
appointed or elected initially?
A. I was appointed by Governor Mark White.
Q. That would have been in ——
A. 83.
H. July of ‘837
A. Yes.
a. And is Governor White a Democrat?
A. He was and I suppose he still is a Democrat.
Berry —- Direct - McDonald 4-10
gp 1 @. And did you subsequently run for a position, judicial
2 ||position?
3 A. Yes, 1 did.
4 GB. When was that, sir?
5 A. In the campaign of 1984.
6 @. And did you run as a Democrat or Republican?
7 A. As a Democrat.
8 4. And did you win or lose?
9 A. I lost.
10 @G. You had opposition if you lost?
11 A. Yes, 1 did.
12 @. Was the opposition Republican or some other party?
13 A. . Republican.
14 G. Who was the person who opposed you?
15 A. William Fowell.
16 @. What is his race?
17 A. He is White.
18 G. Do you know —
19 THE COURT: Did William Powell run the same time
20 |las Clark Gable down there?
21 A. I don"t believe so. Your Honor.
22 || ¢ THE COURT: Harris County is strange, you know.
23 MS. McDORNALD: It was Clark Gable Ward actually.
24 THE COURT: Oh, Clark Gable Ward. William Fowell
25 [was just plain old William Fowell?
A TS TY Tn TN TL A YT nT TR nT TN J NE TE CT ATT $I EO NATE Sr ME mm rn
ET A TR ET ST TRC a mem wt 5
Berry — Direct - McDonald 4-311
A. But Clark Gable Ward had a twin brother whose name was
Douglas Fairbanks Ward.
BY M5. McDONALD:
a. Anyway. this
actor?
A. No.
@l. He may be an
Republican?
A. Yes.
William Fowell is not the same as the
actor.
i. And you lost?
Aa Yes.
but he was a Kepublican. White
a. Is this the same William Fowell who had run against ——
do you know Kenneth Hoyt?
A. 1 sure do.
a. I= he Rlack,
A. He is Black.
we will use the word Elack?
a. Is this the same William Fowell who ran against Judge
Hoyt in a Republican Frimary a few years before?
AR. Yes. Kenneth Hoyt joined the Republican party very
early when it was not the fashionable thing to do,
especially for a Hlack. He was appointed by Governor
Clements to some District bench as a Republican. William
Eill Fowell filed against Kenneth Hoyt in the Republican
Frimary. and defeated him.
3. Would that have been in 1982 or so?
mpm mT pn
Berry — Direct - McDonald 4-12
A. Yes. William Bill Fowell was then defeated in the
General Election by Michael O'Brien, a Democrat.
@. Now, do you know in your election in 1984, sir, do you
know what percentage of Black vote that you received?
A. Well, it was no less than 97 percent. 1 am sure.
G. Why do vou say that?
A. Well, I gave a cursory look at the figures. and from
what I see that in each election which I had been involved 1
received not less than 97 percent of the Black vote.
G. Do vou know what percentage of the non—Elack vote that
vou received in that election?
A. Oh, in the 25 to 30 percent, I guess. I am not
particularly sure. ' It os a small amount.
GB. Excuse me. Do you know Mark, Jutige Mark Davidson,
Judge Davidson?
A. Yes, 1 do.
G. What is his race. as best as you can tell?
A. He is White.
@. Do you know what he is, what party he ran in his recent
election?
A. In his recent, when he was elected he ran as a
Kepublican.
8G. How long have you known Judge Davidson?
A. Oh, well I have known since, particularly known him
since my campaign in 1984. He was a Democrat at that time.
24
25
BE EC Er
A Berry — Direct - McDonald 4-1
Q@. How did you come to know Judge Davidson? 1 mean you
say you have known him since then, how did you know him,
working together or what?
A. He was one of the many lawyers who appeared to give me
their support. I don't recall any significant financial
contribution. He probably didn't have 1t. But he was
always present at fund raisers and that kind of thing.
ll. Did he ever express an opinion as to your
qualifications to be a Judge?
A. I thought he was an ardent supporter of mine.
3. The answer is yes or no?
A. Yes. I thought he was my friend and supporter.
@. Okay. He is now, he then ran in 1988 as a Republican?
A. Yes.
G. We will —— the Rule hasn't been invoked. Let me ask
vou something about some interesting factors that someone
who 1s fascinated about elections came up with. One. what
was your party affiliation in 19847
Re I was a Democrat.
8. And you received over 97 percent of the Rlack vote: is
that correct?
A. Yes. I am sure of that.
GG. Was there a bar result in that year?
A. Well, a bar poll?
GA. A bar —
Ew ET TR TS LIER A
Berry — Direct - McDonald
A. Bar preference poll? I don't know, I am a little
confused now whether it was a bar preference poll or what it
is. At any rate I think 1 barely won it.
a. And that Houston Bar Association. whether it was a
preference poll, it is some number they came up with amd you
barely won 1t?
A. Yes.
In the year that you won?
Yes.
That you ran. excuse me.
fs an incumbent, yes.
That would have been in 1984. You were then, let's
lock at the third factor we heard about, you were an
incumbent: is that correct?
Af. Yes.
G. When you ran in 19847
Yes.
And vour opponent, was he an incumbent?
No.
Did you receive support from the media? Going to the
fourth fact.
tA. I was endorsed by both major newspapers. the Houston
Fost and the Houston Chronicle.
a. I want to ask you in a moment about your campaign. Let
me, if I can, just at least go through these things. Your
Berry — Direct - McDonald 4-15
name is Weldon Berry?
A. Yes.
a. I don't even know how to ask. how do I ask it. Does
that sound like an Eastern European name to you?
A. I don't know what 1t sounds like. because there are not
too many Weldons in the world.
BG. Does it sound like oriental, but I would rather use the
term Asian American name”?
A. Well, Berry is not. I suppose there is a lot of Berrys
in the world. I don't think it is racially identifiable.
not the name.
G. In your campaign, Mr. Berry —— well, tell me about your
campaign. You were appointed by Governor White as a
Democrat, served for about how many months before you ran?
A. A year and five months.
@G. A year and five months? 1 am sorry. You then began
your campaign. When did you begin your campaign for
judicial election in 19847
A. Well. you know, the Frimary 1s in April, May. somewhere
up there. So you start right after the first of the year.
You start raising funds I would say January, February. prior
to the Democratic Primary.
@. At that point you had been in practice since, not 35
vears, I want to put you practicing 40 years and it is 37.
You had been in practice in excess of 30 years: is that
Er Be PT ET RY Tg Tm TYAN
24
25
A i Tie So Bt PA RR TNT TRIS YS A J TE a Am
Berry — Direct - McDonald 4-16
right, in Harris County?
A. 32 from B4 leaves 32.
G. I am glad you don't need a calculator. 1 do.
A. I learned the old fashioned way.
G. I did too, but 1 can't — yeah, you are right. You
have been in the community practicing. well, do you believe
that you had significant name identification?
A. 1 am sure that 1 did, because during the stressful
years of integration 1 was constantly interviewed on
television. newspaper articles, etcetera. 5o 1 suppose 1. 1
am not bragging. but I think I had about as much exposure as
any Black lawyer and a lot of White lawyers in Harris
County. Because of the nature of the Yi tigation; the causes
in which I was involved.
QB. That litigation was finally, well, has it been
concluded. litigated recently by Patricia Johnson? Do you
know Fatricia Johnson?
A. Well, that is a complex story that we don't have time
for. But the Houston Independent School District declared a
unitary school system. The bottom line is that without
busing, and by the utilization of magnet schools and that
concept. I had to agree that Harris County schools were as
integrated as it was possible to integrate them. They are
by no means integrated. but we have achieved that. I suppose
about as much integration as you can reasonably expect based
Ee TI A RT Fe ET NT ETE rT eye romana re
Ee AS A A EASE AS
24
25
Berry - Direct - McDonald 4-17
upon residential segregation, and even the reluctance of
Black parents to have their children bussed. So that is
where we are.
G. In 1989 is there residential segregation in your
cpinion in Harris County?
AR. There is no guestion about it.
@. All the —— Mr. Davidson, Judge Davidson, 1 am sorry,
mentioned. suggested that all of the Judges lived in the
Riverside area on McGregor. Do you know that when I was a
Judge that I lived in Myer?
A. I understood that you did. Judge Davidson probably
hasn't been in the EHlack community enough to know what is
really going on over there.
MR. CLEMENTS: I move to strike the last response.
too much of anything.
MS. McDONALD: I have no objection to it being
stricken as to where I live.
THE COURT: Judge Hoyt lives at 3334 Gregory.
MS. McDONALD: Right, he lived there.
BEY MS. McDONALD:
3. When you campaign. we were talking about your campaign,
that is what made me think of Myerland. One of the swing
votes, well, discretionary voters, if you want to call it
swing votes, we will talk about one area. Did you campaign
in Myerland. in the Myerland Braiswood area”
A rT TT TNR TN Es a Rt me a 2 eae ele EB I FT rr ry
TCT ECE IR TS RT ST
SRG ES i :
oS I J Tn 7 NT Mm AN TS RCA, SE TH eT STL A SS LT TY TR RIT EE
Berry -— Direct - McDonald 4-18
A. Yes. Primarily through mass mail-outs and that sort of
thing. I had not been a politician prior to going on the
bench, and it was then that I was exposed to such terms as
targeted areas and swing votes and all that kind of thing.
My experience with targeted areas and swing votes is that
they don't apply equally to Black candidates as they do the
White candidates.
@. Why 1s that, sir?
A. Well, it 1s, I saw the user result tests that Black
candidates have not received let's say Democratic votes for
instance. If Black candidates. both incumbents and
unincumbents, had received the same report from White
Democrats as their White counterparts. then we or they would
have been elected. So that is what I base my conclusions .._
on.
l. You make this statement, you know —— well I don't
know, maybe you, maybe you were able to, you were a
practicing lawyer at this point before ‘84; is that correct?
A. Yes.
G. Maybe you were able to spend time following each and
every campaign of every person who ran, or every Black
person and White person who ran from '80 to '88. Were you
able, were you able to do that?
A. I certainly wasn’t. That is almost an inhuman task.
G. What is then the basis of your opinion when you say
24
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Berry — Direct - McDonald 4-19
that Black Democrats do not receive the same percent of
votes that White Democrats receive?
A. 1 locked at the election returns.
GQ. If you don't follow everybody around.
A. 1 looked at the election returns. This 1s what happens
in Harris County. We formed little caravans and we went
from church to church, from civic club to civic club, and we
carried with us White judicial candidates, Democratic
candidates. And they were fully exposed to the Elack
community. and the Black community to them. And I believe
that an examination of the election returns will show that
Democratic White candidates were equally as well supported
by the Black voters as were the Black candidates. But the
reverse is found when you look at the support that Black
fludicial candidates get from Democratic voters. And so that
1 believe accounts for the defeat of Black judicial
candidates.
i. Are you referring to White Democratic voters. that
Blacks do not get the same support as White Democrats?
A. I don't believe they do. 1 believe an examination of
the records will support that.
G. Back to these areas. swing areas, discretionary areas.
River Oaks, I don't know whether anvone needs to describe
River Oaks. but anyway assume with me that Judge Davidson
described it as an area where there was pretty nice houses,
Berry — Direct - McDonald {4-20
1 |lconservative, conservative in terms of their approach, the
2 |peocple who live there; would you accept that? Fretty nice
3 ||houses?
4 Af. Well, I don't know 1f you call houses that cost
5 (|$1,000,000.00 pretty nice houses. I guess maybe they are
6 ||pretty nice houses.
7 a. It is the most affluent area in Houston, isn't 1t7?
8 A. It is the most affluent area I have ever —
9 G. Do you know any Blacks that live in River Oaks?
10 A. None of my friends live there.
11 3. You have some White friends. too. don't you?
12 A. I don't know whether they live in River Oaks or not.
13 G. Do you have. do you know of any Blacks that live in
14 ||River Oaks?
15 A. No. I don't.
16 G. That is another, well, assume with me that is another
17 lldiscretionary or swing area. Pasadena, assume with me it is
18 ||lanother discretionary or swing area. Do you know where
19 ||Pasadena is?
20 A. That is the home of Mickey Gillis, Gilleys., whatever it
21 ||15.
22 |l:@. That is a, well, there was a movie made, I guess, about
23 |{|it. But anyway. do you know where Red Bluff Road is?
24 AR. 1 do.
25 Gg. Do you know that the Knights of the Ku Klux Klan have
SE frre date 20 En a SR SPT Se i ot She SEC fa ee Fe Pi i Atel Wee eG hee ea Aaa stot Ty a oe Sa SY TTI
— pi IRIS oie oi : ; ETS i 3 5 .
24
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Berry — Direct - McDonald 4-21
their offices on Red Eluff Road in Pasadena and have a huge
sign that says right there Knights of the Ku Klux Klan?
A. I have seen it.
G. That is another discretionary or swing area. Have you
ever been there to campaign”?
Af. Well. once I went out there within the area.
@. Did vou get any of those swing votes?
A. 1 didn't.
a. I won't use the word swing in that instance. Did you
get any of those discretionary votes, or do you know?
A. I didn't get enough.
G. What was your attitude about campaigning in that
discretionary area”?
A. Well, ve Just came to the conclusion that it would be
better if you were not racially identifiable in certain
areas. As a matter of fact. Judge Hart. who was a good
friend of mine, avoided having his picture, avoiding having
his picture on certain campaign literature. I think 1t was
a deliberate attempt on his part to conceal, not to conceal
but just not to be racially identified. I think that 1s, 1
am not trying to say it is a derogatory way, just a fact of
live.
G. If you wanted to be Judge in 1984 you were supposed to
campaign in these areas? Did you ever go there,
notwithstanding the feelings that you had?
24
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Berry — Direct - McDonald [22
AR. Well, I went the first year because I didn't know any
better.
GG. Memorial Village area, way out, as Judge iavidson
described it, way out in the environs of the city of
Houston. Have you ever been to that area. out Memorial
Drive?
A. 1 have been through there.
8G. A couple of country clubs are there?
A. No. Now, you see, when you speak of me going to an
area, most of the candidates received invitations to appear
before various civic clubs or public service clubs, and that
is where you are able to go and make your pitch, you
understand. I have never received an invitation to appear
before a civic club or anything like that in River Oaks, nor
in Myerland. nor in this ares you just mentioned.
G. Do you know whether any Blacks belang to the Kiver Oaks
Country Club right there on Kirby. the biggest thing there?
A. I doubt it.
Gi. Fardon me?
A. I would doubt it.
0. Have you ever received an invitation from River Oaks to
come and campaign as a judicial candidate?
A. No, sir, 1 have not.
@. Another discretionary area, the Heights area, the
western part of the Heights. You know where the Heights
24
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Berry — Direct - McDonald 4-23
area is?
A. Yes.
G. Let's focus on the western part of the Heights. That
is where Judge Davidson said. Have you ever been there?
A. Well. there again I have never been invited to appear
there before any particular civic group. or any group that
purported to be interested in elections. You generally try
to reach those areas by some sort of mail-out., that sort of
thing.
8. Rut you can't wait for an invitation. you want to be a
Judge, vou want to be elected, you go. Why don't you go up
to River Oaks. knock on the door and say 1 want to come in
and get your vote?
A. You see, Harris County is. it is a huge expanse of
territory. It is impossible to do a door to door campaign
in Harris County. It 1s not humanly possible. There is
Just no way. And that is why people don't make intelligent
choices in Harris County. They don't know who they are
voting for. That is why ——
MR. CLEMENTS: Excuse me. 1 think we are going
well bevond the scope of the question.
THE COURT: I think he is just explaining how
difficult it 1s to campaign in Harris County.
MS. McDONALD: We don't to hear it. we don't want
to get into what we were last night. I will ask you a
Berry -— Direct —- McDonald 4-24
question.
MR. CLEMENTS: Excuse me just a moment. Your
Honor. I obiect to side bar from counsel.
BY MS. McDONALD:
G. I will ask you a question, Mr. Berry. and vou just try
to answer if you can. I will try and make my questions
maybe a little bit more specific and they will be easier for
yOu. I apologize. So you told me that there —— well, let
me ask you again. In your opinion today is there segregated
housing on the basis of race in Harris County?
THE COURT: Asked and answered. He said ves.
A. Yes.
BY M5. McDONALD:
G. Well, the Judge says —— I am trying to go back, the
Judge is right, I have asked already. I am trying to start
down the list of keying those factors. Anyway. you
mentioned something, Mr. Berry, about historical
discrimination. Let me ask you a few other questions, if 1
may. During your lifetime, the time that you have been in
Harris County. have you seen racially. segregated schools?
A. Yes.
+d. Have you seen racially segregated public
accommodations, hotels, that type of thing?
A. Yes.
@. Have you seen racially segregated health services?
24
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Berry — Direct - McDonald 4-25
A. What 1s that?
8. Health services. Riverside. are you familiar with
Riverside Hospital?
A. Yes. Yes.
@. Do vou know what Riverside Hospital was called before?
fA. Called the old Colored hospital.
G. It is not called Riverside; is that correct?
A. Yes.
G. Are there areas today. and you have talked about
percentage of votes that you got in your election, are there
areas in Harris County that you believe. geographic areas,
that could be drawn, from which a district could be drawn so
that a majority of Blacks would be in that aeboraphical
impact area”
A. Yes.
G. What effect. if any, would that have on the ability. on
your ability to have won, or won the election in 19847
A. Well, not necessarily my personal. but it would affect
a lot more Elack judicial candidates, just as redistricting
has caused EBlacks to be on the, what is Franco Lee?
Gi. County Commissioner.
A. County Carmissiohers, redistricting placed him there.
Redistricting caused two Blacks Justices of the Peace where
there had been none. Redistricting caused by the
Legislature, State Legislature, United States Congress. So
24
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Berry — Direct - McDonald 4-26
I am sure that districts could be carved out that would
serve to give more meaning to a substantial section of the
voters, that is the Black voters.
a. In your experience, your many years of experience in
Harris County, your years of running as a Judge, sitting as
a Judge, do you believe that Blacks tend in Harris County to
vote as a bloc” And by that I mean. well, as a bloc.
A. Well, they do vote as a bloc.
BG. And do they tend to vote, if there is a Black running
against. a Black candidate in a judicial race running
against a White candidate, do Blacks tend to vote
overwhelmingly for the Black candidate?
A. Not in all circumstances.
@. And do you know Mamie Procter?
A. Yes.
@. She is Elack?
A. Yes, she is.
GG. Republican?
A. Yes.
@. Do you believe that Blacks voted for her predominantly?
A. I don't know. I didn't look at her statistics. But I
gon’'t believe they did.
@. Do you know whether Mamie Frocter had any prior
judicial experience before she ran?
A. She had none.
Berry — Direct - McDonald 4-27
@G. Okay. Do you know that she worked as a librarian for
the Thurgood Marshall School of Law before she ran?
A. I understand
0. Do you know
A. Yes, lido.
G. Ie she Rlack
A. She 1s Black
Q@. Did she run
A. Yes.
CG. Did she win
A. She lost.
GC. Did she run
A. As a Republi
BG. Do vou know
she did.
Cheryl Irvin?
or White?
for election”?
or lose?
as a Republican or Democrat?
cane.
what her prior practicing experience was
prior to the time she ran?
A. Nothing spec
@. Do a know
A. Yes. I do.
G8. Do you know
she has ever run
tacular.
Alice Bonner?
whether she ran as a. do you know whether
as a judicial, in a judicial race?
a. Yes. She ran as a candidate for reelection to the 80th
Dietrick Court.
@. And do you k
A. Yes, 1 do.
now James Muldrow?
@. James —— how old —— well, how long. how long would you
CA 5 8 0 EE NE od Sr (A Re SA! SOONG EPONA es
24
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Berry — Direct - McDonald 4-28
estimate that Mr. Muldrow had been a lawyer?
A. Well, Muldrow and I are about the same age. 1 think ']
passed the bar a few years before he did. He has been a
lawyer a long time.
GC. You wouldn't call him a young lawyer?
A. By no means.
GB. Alice Bonner is, would you estimate she is about my
A. Well.
i. You don't know how old I am. Maybe you do.
A. I am scared to ask.
a. I have known you since I was in law school, so you know
how old I am.
A. 1 think Alice is older than you are.
@G. That is true. She is a young lawyer. How many years
had she been in practice when she ran?
A. Oh, for a good while.
a. If I told you she had been licensed since 1969. would
that sound about right?
A. That is about right.
G. Do you know whether Alice Bonner won?
+A. She lost.
G. Do you know whether James Muldrow won or lost?
A. He lost.
@. They are both Black?
~
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25
Xa ren NL TT
TE RT (TTR NTE J TNT TE Tg J Sm TL WM meet TN YA
Berry — Direct - McDonald 4-29
A. Yes.
BG. Do vou know Mr., or I guess we are referring to him as
Mr., former Judge McAfee, is he White or Black?
A. He was White.
GG. Now. I don't want to ask vou specifice about publicity.
Do you know Mr., did you know Mr. McAfee when he was alive?
A. I sure did.
@. Had you heard any adverse publicity about Mr. McAfee
prior to his race against Judge Bonner, Alice Bonner?
A. I hadn't heard anvthing about him one way or the other
before he ran against Judge Bonner.
Gt. Had he run in a number of elections, or do you know?
A. I just don’t know.
@. What about, let's see, John Peavy, do you know John
Feavy?
AR. Yes, 1 do.
G3. He 1s Black; is that correct?
AR. Yes.
GG. And he served on the District Court in Harris County,
assigned to family law?
A. That's right.
Qa. Is that correct? And he has been there. how long would
you guess?
A. Oh, he has been there over 10 years 1 would say.
Q. Is he, if I told you he was in law school with me,
24
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Berry — Direct - McDonald 4-30
would that make him about my age, assuming we went together
at the same time?
A. Yes.
GG. He 1s not a young lawyer?
2 J Not anymore.
@. When he ran the first time. when he was —— was he
appointed first when he took the District Court bench?
A. Yes.
G. And that would have been what? Well. seven years ago.
or longer?
A. I think probably longer. Eut I think probably longer.
GG. Okay. Do you know whether he has been unopposed. do
you know whether he has been opposed in some elections?
A. My recollection 1s, he was opposed or not. If he was
opposed, 1 don't know who his opponent was. I think he has
been unopposed a couple of terms.
@. Do you know anything about his qualifications,
experience? Judge Feavy, that is.
A. Well. he was first appointed Justice of the Peace by
the Commissioner's Court. And from there he was appointed
to Family Court, by I don't know who the Governor was.
Might have been Dolf Eriscoe.
GG. And then you are not sure whether he was opposed in
subsequent elections: is that correct?
A. My recollection is that —— I may be wrong. 1 think he
SNS EAT NTE 1 any
24
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Berry — Direct — McDonald 4-31
has been unopposed in the last two elections.
G. Do you recall whether he had a problem, one person
filed against him but then was disqualified because of some,
because of a filing reguirement?
A. Yes. That is true. But I don't know who it was.
8. Sc in the last two elections then you believe he has
been unopposed: is that correct?
A. Yes, 1 believe so.
BG. He did win the first election after he was appointed:
is that correct”
A. I guess.
G. All right. Clark Gable, Clark Gable Ward. do you know
whether he, when he ran in 1982 he was opposed by the now
Chief Justice Tom Phillips?
A. I think that is true.
G8. Do you know what prior experience Chief Justice Tom
Phillips had in 19827 What prior judicial experience I
should say?
A. None.
8G. Do vou know whether he came from Baker and Botts?
A. 1 am pretty sure he came from one of the larger firms.
I don"t know which one.
@. What is his race, the Chief Judge?
A. He 1s White.
G. Do you know a Mack Arnold?
A NE J TT AT A 7 TEN Jr rE al VT 8 a en met, TI SO CIS 2 TCT SS SO £3 7 Te I TT a er a Se am, mx rr ica
EE TNC IR TR ARTY TI x
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31 TY EE
Berry - Direct - McDonald 4-32
A. I don't know him. I have heard of him.
@. Do you know whether he ran against Judge Routt?
A. He did.
Gi. Do you know whether Judge Routt won the overwhelmingly
support of the Black, Rlack precincts we will say?
RR. Yes. he did.
G. When he ran?
A. Yes.
@. The first time —- well, the only. we will say the first
time that Judge Feavy., do you know whether he received the
overwhelmingly percentage of the Black precincts?
A. He did.
8G. What about Mr. Muldrow?
A. He did.
BG. When you have, when you go through judicial races, are
esative things, have you heard negative things said about
people”? 1 am not talking about racial, racial comments. I
am talking about just negative comments like, well, I am
Just —- well, tell me yes or no. Is that something that is
kind of a fact of.life or no, you don't, for the record?
A. Have 1 heard?
+8. Negative things said about judicial candidates?
A. By whom?
G. Anyone. In newspapers?
A. Well, yes, I have heard —— have negatives things about
24
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FE A TA EM I I EE RIT
Berry - Direct - McDonald {4-33
candidates. In newspapers?
@. Yes.
A. Yes. Something negative appeared in a newspaper about
me.
Gi. Have you seen other negative. have you seen negative
comments or stories about White candidates for judicial
offices who have won?
A. Well, ves.
8. We are trying to stay away from all the details. The
question that has been raised. and I need to find out then,
I guess I will ask you what effect it had orn you as a voter.
A. Well, it probably didn't have the same etfect on me
that it might have had on some voters, because I think I am,
by virtue of being a lawyer, a little bit more open—minded.
And perhaps not ready to believe everything 1 read in the
newspaper as to probably 1 suppose some lay person might do.
Gl. What effect did the Houston. the outcome of the Houston
poll, or the poll, not called the preference poll. what
effect, in your opinion, does that have on voters in their
{selection of the candidates that they will vote for?
A. Well, I have not been able toc come to any conclusions
on that because sometimes the elections parallel the results
of a bar poll. and sometimes they don't. So I don’t think
it is a dependable or reliable factor that you can depend
upon in determining whether or not you are going to be
CE TT EY PI Re Se ey TE EAP TR eo Ee RNR 7 SIT rr a
— NT AT EAI VET RS YR a TT I PN Pe mer yo
RT BN EN RY ETE To YATE A
24
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Berry — Direct - McDonald {4-354
elected. Because in some instances the persons who win a
preference poll win, sometimes they lose.
G3. When you lost in 1984 you indicated you received
overwhelmingly support of the Black community, you testified
that you believe the Blacks vote as a bloc when there is a
Black against a White. Do you believe, in a judicial race
do you believe that Whites in Harris County vote as a bioc
when a Black opposes a White in a judicial race?
A. That 1s my beliet.
GG. And do they vote for the White candidate or against the
Hlack candidate, or what do you mean when you say bloc?
Fa I believe that the preference would be the White
candidate.
Q@. Are you a member of the Houston Lawyers Association,
Mr. Berry?
A. Yes, 1 am.
MS. McDONALD: Excuse me, Your Honor. May I have
one moment?
THE COURT: Yes.
A. Your Honor, may I get a glass of water?
THE COURT: This is good stuff.
+A. Yes, sir, Judge.
THE COURT: Don’t just start coughing.
BY MS. McDONALD:
Q. The swing, the discretionary voters, I guess I will
FE Tp TTR ME TT me Tm ey
Berry — Direct - McDonald 4-35
use, I will use them for some areas except for one area, are
they generally White or Black, based upon your experience?
A. I believe they are White.
MS. McDONALD: Pass the witness, Your Honor.
THE COURT: Mr. Clements?
CROSS EXAMINATION
BY MR. CLEMENTS:
GG. O6Good morning. Mr. Berry.
A. Yes, sir, Mr. Clements. How are you?
@. Mr. Berry. vou weren't the first Judge of the Black
persuasion in Harris County, Texas, were you”?
A. Dh, no, sir.
A. That honor falls to Judge Andrew Jefferson: right?
A. Yes, sir.
G. And do you recall about when it was that Judge
Jefferson first came to the bench?
A. No. If you would refresh my memory.
@. Was he appointed in 1973, about then?
A. I didn't know it was that far back, but if that is what
the record shows.
GG. Judge Jefferson subsequently ran a county-wide race and
won against White opponents, didn't he?
A. Yes.
@. And then the next Blacks to run for Judge ran in 1978.
didn't they?
24
25
A.
a.
Berry - Cross — Clements 4-36
Who was that”?
I believe that was Judge Peavy, Judge Routt and Judge
Alice Bonner, running for County Court at Law Number 6.
A.
G.
If that is what the record shows. I won't dispute it.
All right. Judge Peavy had a primary opponent in 1978,
gidn’'t he?
Fa
Q.
Who was 1t7
I don't remember the name. sir.
I don't remember either.
You don't? Okay. Judge Bonner had five White Frimary
opponents and she beat them all in 19787
A. In the Democratic Primary?
Democratic Primary, sir. Do you recall that?
The Democratic Primary. yes.
Back then there were essentially no Republicans
running. were there. except for an occasional token
candidate?
A. I think that is accurate, yes.
@. The first Republican didn't come to the bench until
1980, did they?
Af. That is about right.
+3. So the E.acks elected Judges in Harris County before
the Republicans did, in an at large election, didn’t they?
A.
a.
You mean Blacks were elected?
Yes, sir.
24
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Berry — Cross — Clements 4-37
AR. Yes.
G. In 1980, the year those first Republicans came to the
bench, that was a Republican landslide for President Reagan,
wasn't 1t?
AR. 19807
@. Yes. sir. Running against former Fresident Carter?
A. Well, I know that Reagan beat Carter. Yes. that is
true.
GG. Well, do you recall President Reagan's coattail effects
being given credit for some Republican Judges being elected
for the first time?
A. That is probably accurate. In "BO you are talking
about?
8. Yes. And in 1983 you were appointed to the bench?
A. Yes, sir.
GQ. I would assume your interest in Judicial elections just
soared right about that time.
A. Well. soared is probably a pretty good word.
G3. You got a lot more interested?
A. 1 sure did.
Qf. Followed them closely.
A. That was the first time, 1 believe.
GG. Okay. In 1984 you sought advice about how to run a
campaign. did you not?
a. I sure had to.
24
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Bd Eo fie Sof o£ aig
Berry — Cross - Clements 4-38
G. And you tried to run the best campaign you could?
A. Yes, sir.
@. And as 1 believe you told Ms. McDonald. you had. you
worn the bar poll in 1984, didn't you?
A. Yes. sir.
GG. You received the endorsement of both the Houston Post
and the Houston Chronicle and the Jewish Herald Post?
A. Yes.
MR. CLEMENTS: By they way. Your Honor, we have
listed the endorsements of newspaper as exhibits for all the
vears from ‘80 to ‘88. And for the record we would like to
offer those exhibits which are Defendants’ Exhibits 20
through 34. Sorry, 33.
THE COURT: All right. They will be admitted.
Those are just endorsements of the various and sundry
candidates, HBlack., White.
MS. McDONALD: A little bit more than
endorsements. We will object for the record, that they are
hearsay.
THE COURT: Thank you. Overruled.
BY MR. CLEMENTS:
¢eQ. In fact. you were an incumbent that year and you raised
money as an incumbent, didn’t you?
A. Yes, sir.
G. You raised nearly $80,000.00 to run in 19847
TE TS SI TT NE EYOTA
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TEAS TC TI ATI TL WL SETAE TE J he ae i re ep yp TL UY RATT Re —ce
Berry — Cross —- Clements 4-39
A. Yes. sir.
8G. And your opponent, Rill Fowell., raised only about
$4,000,007
A. That 1= about right. sir.
fi. So you had about a 20 to 1 advantage in terms of the
campaign money available to vou over your opponent?
Af. Yes, sir.
@. Basically you had everything going for you that you
knew to put in to a race; right, sir?
A. Yes, sir.
BG. Now. when you campaigned, was it really your practice
to wait for invitations before you went some place, and if
vou were not invited not to go”
A. I think that is generally the practice of all
candidates. I don't think you go some place unless you are
invited.
@. You didn't seek out opportunities and contact
organizations or have others on your behalf contact the
organizations and see if they would like to hear you speak.
like, oh, say the DAR might like to hear a Judge running for
election?
A. You see. you receive so many invitations until you
really don't have time to honor those invitations which you
receive. During the final throes. and 1 use the word
throes, of a campaign, you are called upon tec go some three
®
rr Sian rt ff Ts Se 3 oo RE ed
24
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Rerry —- Cross — Clements 4-40
or four or five places a night, the last month of the
campaign. And so there are more invitations to speak to
this or that group, and appear before this or that group
than you can satisfy. Sometimes you have to get volunteers
to appear for vou, but I found out it was better not.
because people feel slighted if they think you don’t have
time to come. They don't want to hear a stand-in.
8. You have no evidence of any injection of race or racist
appeals into your 1984 campaign, do you, sir?
A. I don't have.
BG. No. Judge Berry. isn't it true that no Democrat
running in a contested judicial race won in 19847
A. That's right.
G. And there were others in the race who raised more money
than you did?
A. Yes. sir.
@. There were others who had at least as good an
endorsement list as vou did?
A. Yes. sir.
@. There were others, White and Elack, who campaigned as
energetically as you did?
tA. Yee, sir.
G. And they all lost because 1984 was a Republican year
and the straight party Republican vote outweighed both the
Democrat straight vote and the discretionary judicial votes:
24
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Berry - Cross - Clements 4-41
isn't that true, sir?
A. That is true, but there was a small number of
Democratic candidates, and as 1 stated in my deposition to
vou, 1t 1s my belief that if a more substantial number of
Democratic incumbents had found opposition. then the
phenomenon of the Reagan sweep would not have occurred.
G. Of course. we will never know that, will we?
A. We will never know.
G. In fact you say you examined the results of that 1984
race very closely, went back and looked at them after the
facts right?
A. 1 locked at them.
Q@. Ypu looked to see where your support came from and
where it didn't, didn’t you? or
A. Well. ves.
@. Did you compare the relative finishing of the Blacke,
Democrats and Republicans, who were running in 1984 relative
to the White Democrats who were also running that year and
who also lost but by different margins from the Blacks?
A. They did. They lost, but they didn't lose by as big a
margin, I don't believe.
G. Well, did you know this. that the number three finisher
in terms of judicial races in Harris County in 1984 was
Judge Ken Hoyt who beat Michol O'Connor. Judge Hoyt. of
course, was a Black Republican. He won and he got the
24
25
Berry — Cross — Clements 4-42
biggest margin of any Black running for a Judgeship in 1984.
A. He got the biggest margin from whom. Republicans?
G. From the voters. The swing, the discrepancy between
him and his opponent. his total vote total as a Republican
was greater than the vote totals of any of the other Elacks
running as Democrats and he was number three finisher in
that race of all the 16 judicial candidates.
A. But he was a Republican and the others were Democrats.
C. Well, do you recall that Sheila Jackson Lee finished
fourth out of that field of 16 in her race with Gene
Chambers?
A. She finished fourth. how?
@. Of the just ranking vote totals of who received how
many votes in those 16 contested vote totals. Sheila Jackson
Lee, in the contested race, Sheila Jackson Lee finished
fourth. She had 363.6B6 votes. “tt was less than her
opponent. But of the —
A. Less than her opponent?
G. Yes. She lost.
A. She lost. Yes. uh-huh.
G. But of the Democrats she finished number four.
tA. Well, she still lost.
. Yes, she did. But for instance, Judge Ken Harrison,
who was an incumbent and a White, finished behind her
running against Marsha Anthony. Judge Harrison, a White
CL £m , FE HNTW NTR Se gm YM maT et TNE Te EN PA TY A I © pe yn TF vent ep
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2 Berry — Cross — Clements 4-4
Democrat lost by a bigger margin then Sheila Jackson Lee
did. Do vou recall that?
A. I don't recall that, but a loss is a loss.
8. Well, no. Isn't the whole reason you are here is to
tell the Judge that a loss by a Black is the result of
racism but a loss by a White doesn't matter?
A. I dirmn"t —— no. no. That is not my purpose here.
G. All right.
A. My purpose here is to hope that identifiable smaller
districts might be carved out so that the voters within that
cohesive district might have their wishes expressed and find
fulfillment.
G. I understand that is your ultimate objective. But to
get there you have to prove that the preferred candidate of
the Black minority of Harris County usually loses to the
White nasority which submerges the minority’'s vote in White
votes: right?
A. You have got to say that again to me.
BG. You have got to show the third Gingles factor. that the
minority candidate usually loses because the White vote
submerges the minority’'s vote, because of the size of the
district.
A. I understand that.
BG. That is what we are talking here. If Judge Harrison,
an incumbent White, running against a White, and Judge
Berry — Cross — Clements : 4-44
Millard, running as an incumbent Democrat White against Jack
O'Neill, both lost by lesser margins than Sheila Jackson Lee
did, then it is pretty apparent that Sheila Jackson Lee was
not inhibited by her race from running as strong a campaign
as Judge Harrison and Judge Millard, who were White
incumbent Democrats.
A. I don't agree with that. 1 don’t understand the
rationale.
8G. Okay.
A. If Sheila Jackson Lee had won, then I would think the
theory makes sense. Since she lost, and since Harrison
lost. since Millard lost, that doesn’t prove anything except
it proves that Democrats lost.
G. If minority candidates are by reason at Their race
losing contests, and by reason of their race alone, not
their qualities as candidates or bad publicity or quality of
their campaign. but solely by reason of their race, you
would expect the Black Democratic candidates to be at the
bottom of the list of Democratic candidates every time they
run, wouldn't you? They would finish at the very bottom of
the list?
+A. Do you know what the problem there is, it is that
Sheila Jackson Lee probably got more Black votes than Ken
Harrison.
BG. No question.
PR ha Bn Pm tf a re ses Tr CR
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Berry — Cross - Clements 4-45
A. Then that is why she had more votes in a losing
situation than he did.
a. I am sorry. I said no question, and 1 leapt too fast.
I thought you were saying Judge Hoyt. Do you have any
reason to believe that Judge Harrison got any fewer Elack
votes than Judge Lee did? Because I will represent to you
that the evidence from both Mr. Engstrom. the plaintiffs’
expert and the defendants’ expert is that essentially the
BElack vote 1s a constant 94 to 98 percent of the total
Democrats.
A. What are you telling me? Are you telling me that
Sheila Jackson Lee got less or more Black votes than Ken
Harrison?
@. Got the same.
A. The EE
. Because most Blacks vote a straight Democratic ticket.
A. So Ken Harrison and Sheila Jackson Lee got the same
number of EKlack votes?
8. Yes, sir.
A. All right.
@. But Sheila Jackson Lee got more White votes than Ken
Harrison, because she finished higher than Ken Harrison did.
A. But she still lost.
Gl. She still lost, just as Ken Harrison did and as did
Richard Millard.
Ee TT Tr —— ree Pm aa—— a a —, mrp - — rr nv re arr a —— rt In ny
TAR RT PTR A WAG EER NL Te
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Berry — Cross — Clements
A.
was it not?
a.
Sheila Jackson Lee by the electoral process.
republican.
Judge Hobson, but he
among the candidates
A. 847
G. Yes. She lost,
A. I won't quarrel
RQ. And both Sheila
of Alice Trevathan who was running against my client,
Sherilyn Wood.
White Democratic candidate,
If diluted for Judge Harrison,
Judge Hobson.
who lost.
4-44
So therefore the Black vote was nonetheless diluted,
it was diluted for
They lost to a
did vou know sorry. not then
is now, Carolyn Hobson finished 7th
in 19847
but her vote total was 7th highest.
with your figures.
Jackson Lee and Judge Hobson ran ahead
Judge
But she 1s certainly a well known
isn't she?
Alice Trevathan back
A. Who. Alice Trevathan?
GG. Alice Trevathan.
A. She 1s now.
GC. Sheila Jackson Lee ran better than
in 1984.
A. But they lost.
@. But they lost.
good a race as either Carolyn Hobson or
in 1984: right?
A. The bottom line
a. And
AT Pr — TR LL WATT NIT I ny pee
vou ran 12th out of the 16.
Lupe Salinas lost. but he didn't run as
Sheila Jackson Lee
is they lost.
out of the 16
24
25
Berry — Cross — Clements 4-47
Democratic candidates you had the 12th largest vote total
running against Judge Fowell; do you recall that?
A. That is probably so.
GQ. And then Freddie Jackson ran last?
A. And we lost.
G. Yes. You ran abead of Warren Hancock and David West
and Henry Ali in your vote totals.
A. I did.
a. If you had looked at those results you would have
noticed that. Mr. Hancock, Mr. West and Mr. All are all
White, aren't they, White Democrats?
A. Yes, sir.
gg. And you got more White votes than they did, if vou will
assume with me that the Black votes were roughly thelssme
for all the Democratic candidates; right?
A. So, comparing the White votes that 1 got to the vote
that Henry Ali got didn't help me any when I was running
against Bill Powell.
3. You lost?
A. Yes.
3. But you lost by a smaller percentage than Henry Ali
did. He lost by a wider gap.
A. Well --
THE COURT: I think we have gone over this,
counsel.
EE MT RL) FB PN JA SLIT I A HT AN TY RT [TA I RE
ETE TCS ESTER TN ETRE
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Berry — Cross — Clements 4-48
MR. CLEMENTS: 1 think so.
BY MR. CLEMENTS:
@. Now. you yourself personally preferred Judge Hoyt to
his White opponent in 1984, didn't vou?
A. Yes, 1 did.
G. And Judge Hoyt certainly got the endorsement of many
prominent Hlack groups?
A. He got some. ves.
G. He campaigned in the Black community. didn't he?
A. He sure did.
GG. He worked hard. but he only got about 5 percent of the
votes in the predominately Black ward: is that your
recollection” :
A. When he was running for Circuit Court?
BG. 1984, the same year you were running.
A. 1 don't know what his totals were. I know he won.
G. What it comes down to is whether or not knowledgeable
Blacks such as yourself will support a Black Republican like
Judge Hoyt, the effective preferred candidate of the Black
community will always be the Democrat, whether the Democrat
is White, Black or Hispanic and no matter how well gualified
a Black Republican may be: isn't that true, sir?
A. A Black Fepublican may be the preferred candidate?
BG. No. sir. No matter how good a Black Republican may be
and how much support he gets from good people like you and
MI TE TI, Om I LT a Ie Ag ET LY dry mY, AT, J Th NI pA TTT Sm A ST TT ST ev 15% 14) Tm 7
EIN 3 Cr a RA Tm soa be CA
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fms 3 tomes SI au 2
Berry — Cross - Clements : 4-49
Senator Washington and Ms. Lee, the straight Democratic
lever that most Black pull will always give him
approximately 5 percent of the vote. I shouldn't say
always because always is never. the answers that are always
wrong. But in 1980 in Harris County the straight Democratic
vote in the Hlack community will condemn a man like Ken Hovt
to a small percentage of the Black vote and give the largest
percent to someone like Michol O'Connor who has no
particular ties to the Black community; isn’t that true,
sir?
A. Michol O'Connor campaigned extensively in the Black
community. I mentioned earlier on direct examination that
every Sunday —— I didn't tell you this —— a Black politician
by the name of Zolly Scales organizes a caravan of
candidates and we visit no less than six churches, it seems
unbelievable, on a given Sunday SrTATE - And we are
presented in each of these churches and the congregation,
and Michol O'Connor was a part of that caravan. So she
campaigned extensively in the Black community.
8. Yes, sir. But she didn't have the endorsements of the
Black leaders such as vourself, did she?
A. You asked me how did I vote, I told you how I voted.
G. Michol 0 Conner had only one thing going for her in the
Black community, and that is the fact that she was a
Democrat: isn't that true?
24
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Berry — Cross - Clements 4-320
A. I wouldn't say that is the only thing she had going for
@. Okay. Now. you mentioned that Clark Gable Ward ran
against Tom Phillips. Would you look in that big red folder
te your left and pull out Defendants’ Exhibit 1. which is a
list of the contested races”?
A. Well. now. it was suggested to me by counsel that he
ran against Tom Phillips. I don't really know. What does
the record show?
GG. The record shows he ran against Judge Louis Moore.
fA. That's correct. That is accurate.
BG. Tom Phillips was unopposed in 1984.
MS. McDONALD: I am sorry, Your Honor. I stand
correcteds Tom Phillips has never run a contested election
until he ran for Chief Justice. He was appointed and ran
unopposed. and then he ran for the first time for Chief
Justice and won. That was my mistake. I am sorry.
A. That's accurate. He did run against Louis Moore.
BY MR. CLEMENTS:
@. And Louis Moore is Hispanic. Puerto Rican as a matter
of fact?
tA. Well, I really heard different stories. I don't know
what he is.
THE COURT: I don't think he is Fuerto Rican. but
go ahead, counsel. And I have known him a whole lot longer
Fm ACTER TY
DR Ea ior A
24
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Berry - Cross — Clements 4-51
than you have, I will guarantee you. He is Hispanic.
BY MR. CLEMENTS:
BG. Let's talk a bit about not being opposed. You
mentioned that Judge Feavy and Judge Routt had basically
been unopposed and have therefore won in 1978. 1982, except
for the challenge that year to Judge Routt in 1986. I am
Sorry. 1978, ‘B80 to 'g85. Mr. Berry, hasn't it been your
perception that if a candidate views a sitting Judge as
vulnerable he 1s likely to run against him in order to win.
take his place?
A. If he views him as vulnerable?
G. Uh-huh.
A. No, sir. I disagree with that.
G. All right.
A. I don't know. and the reason 1 disagree is very simple.
Because Fete Solito had an opponent, and I don't know how in
the world he could have figured Fete Solito was vulnerable.
@. People make mistakes.
A. Richard Millard got an opponent, having served as a
Justice of the Feace and County Court Judge and on the
District bench. I don't know how you could assume he was
vulnerable except he was a Democrat.
@. Challengers make mistakes about the vulnerability of
sitting Jules, but hasn't it been your experience that if
Democrats or Republicans perceive a sitting Judge as one
24
25 dues.
Berry — Cross —- Clements {4-52
that may be knocked off, they are going to give it a try”?
A. Well, that is their perception. I don't know why James
Anderson decided to run against Francis Williams.
We are not talking about Francis Williams. We are
about John Feavy and Tom Routt and why no one feeics
would be advantageous to them to take on those good
Judges, either in the Democratic Primary or in the General
Election.
a. Well, I don't know what goes on in the minds of an
unincumbent who decides to run against an incumbent Judge.
Eut your question directed. if he perceives him to be
vulnerable. Now, I don't know the basis of that perception.
I don't know why —— your premise is, I Fol ty that Judge
Feavy and Judge Routt have conducted themselves in such an
exemplary manner that no unincumbent perceives them to be
vulnerable and therefore does not run against them. They
probably haven't made anybody real mad during the four
So I am not able to vears, so they don't get an opponent.
figure that, when I look at people like Judge Sclito who got
an opponent. So I don't know, I don't know why. If you
want to get into the nitty gritty of why people. they run
against a Judge because they are angry at him for one thing,
not because they presume them to be vulnerable, but simply
because they want to make them run, make them pay their
I know a lot of guys that run against Judges just to
24
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Berry — Cross — Clements 4-53
pay them back.
GG. That was true of Judge Solite. Didn't Mr. Weisman have
a personal vendetta against Pete Solito?
A. That is what we are talking about. Why do people run
against, whv do some incumbent Judges get an opponent and
why others don't. So it is not necessarily upon the
perception of vulnerability. There are a number of factors
why they might do 1t.
@. Okay. We have covered that one. You ran in 1986. did
vou not?
A. Yes, sir.
@. And then you ran against that same Judge Louis Moore
who had beaten Mr. Clark Gable Ward back in 19827
A. Yes, sir. There again that was my mistake in
perception of his vulnerability.
8G. Yes. You did make a mistake there.
A. Yes, I sure did.
Gi. He ocutraced you on money, didn't he?
A. Yes, sir.
8. You only raised twenty thousand that year?
A. That's right, sir.
G8. You got no newspaper endorsements in 19847
A. Well, I got some little neighborhood newspapers.
8. You didn't get the Houston Fost or the Houston
Chronicle”
TOTS TOR ee, 7
24
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FR, TTA TR
Berry — Cross —- Clements 4-54
A. No, sir.
@. You didn't win the bar poll?
A. No, sir.
Gg. As a matter of fact you did kind of poor in the bar
poll, didn't you?
A. Yes. sir.
G. And you lost the race pretty. pretty substantially?
A. Yes, sir.
a. At the same time Carl Walker. who had never been a
Judge before in his life, won against a White Republican,
didn't he”
A. Yes, sir. Do you have an explanation for that?
a. I have got several but 1 am not on the witness stand.
I suspect the Judge isn't going to listen to me from here.
THE COURT: That is a valid suspicion.
Appropriate comment. counsel.
MR. CLEMENTS: Yes, sir.
A. You do recall that Carl Walker ran for a bench that had
been held for a number of years by a Judge by the name of
George Walker?
BY MR. CLEMENTS:
+8. Yes. sir.
A. So it is not beyond the realm of impossibility that a
lot of people might have thought that was George Walker
instead of Carl Walker.
EM TG SA TB EJ TI TNT Ra er I pm UT TOY mee
Eerry — Cross — Clements 4-55
® 1 @. Anything is possible in politics, isn't it, sir?
2 A. Yes, sir. The same thing happened with Asbury Butler
3 |lwhen he was running for School Board. All the people out in
4 ||River Oaks voted for him because they thought it was Joe
5llkelly Butler.
6 8. You also —— there was no injection of race or racism 1in
7 lyour campaign against Judge Moore, was there, in 19867
8 A. No, sir. Not on my part. I didn't hear of any on his.
9 3. Okay. Now, in 1986 — 1 am sorry, in 1988 vou ran
10 [again against Judge FPowell, the same man you ran against in
11 {|19847
12 A. The one that ran against me in "84.
13 GG. That is a fair comment. That is true. And once ‘again
14 ||lyou mis—perceived his vulnerability, didn't you?
15 A. Well, I guess so.
16 GG. By 1988 you only raised $10,000.00 for your campaign?
17 A. Yes, sir.
18 a. You had no endorsements from the Houston Post?
19 Fo. I had endorsements.
20 G4. Not from the Houston Post or the Houston Chronicle.
21 A. No. I don't think he did either.
22 GG. You were not the Houston Bar Association preference
23 ||lpoll favorite by very large margin?
24 A. That's right, sir.
25 3. And there is certainly wide publicity given to the
i Roy SI 7. = SO RY HC 17 A To Te TTS SANA SATA TR, Sma = Ter 7 “TIN ERASE 480 TT Mm fT) Sa 8 TN i a me a yn ET re ET Sey
RR RCS RET TS Ae
24
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YT XT 1 TD OE CS I HY UY ASTI Ce Sm age SE eee TE TITS A STAD BA ETN Nf 0 eae en Eo a
Berry - Cross — Clements 4-56
results of the Houston bar preference poll, isn't there?
A. It 1s published in the papers. Now, how much
attention people pay to it, I don't know.
@. Well, in 1988, isn't 1t a fact that there was an almost
total coincidence of the winner of the bar poll winning in
the General Election whether they were Republican or
Democrat”
A. Now, that is true.
8. Yes, sir.
A. Now, ATE you willing to state that that will hold true
as a consistent fact in the future?
@. You can't predict what will hold true in 1990, and 1
know I can't. You are not going to try, are you?
A. No. sir.
Q. I won't either. I won't if you won't. Now, with
respect toc 1988. you are Certainly -— well, with respect to
your races 1in general, you are certainly not saying that the
Houston newspapers do not endorse Blacks, are you?
A. Neo, I haven't said that.
8G. And you are not suggesting that all Black candidates
are equally qualified to serve with other Black candidates
@r White candidates or Hispanic candidates?
A. No. sir. 1 am not even going to suggest that the most
qualified candidate wins either.
@. That's right. Sometimes that happens. You are not
24
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Berry — Cross — Clements 4-37
going to suggest that the advantages of incumbency, when a
Black 1e an incumbent. such as ability to raise money and
get endorsements. are any less for a Elack than they are for
a White, are you?
A. I would say Black, White incumbents raise more money
than Black incumbents.
f. What do vou base that on? Have you looked at the
campaign expenditure reports to see whether that is true?
A. That 1s my perception. That is my perception. It may
be wrona.
8G. That is fair enough. And you are certainly saying that
the Houston bar poll is never won by a Black candidate, are
A. No. sir. I haven't said that.
MR. CLEMENTS: We will pass the witness.
REDIRECT EXAMINATION
BY MS. McDONALD:
8. Mr. Berry. let me ask you one question about the 1986
race that Mr. Clements made reference to. In 19846, if 1 am
correct, as a student of politics, which I wasn't, Mark
White won Harris County: is that not soc?
A. Yes, he did. I believe he did.
@. So that was the year of the Democratic sweep in Harris
County as far as the. head of the ticket. now that is one
factor, head of the ticket.
TE BE IE pr ST Far TITY
24
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Rerry - Redirect - McDonald 4-58
A. Should have been. You would think 1t would have been.
@. Pardon?
A. You would think. you would suppose that if the Governor
had carried Harris County that his coattail effect would
have affected all Democrats.
Gt. Right. We heard about the coattail effect. You didn’t
catch on to that coattail, did you?
A. No, sir. No, ma’ am.
8. You lost?
A. Yes.
G. Okay. The point 1s —— let me ask you one question,
very very quick, about the 1982 election, again about
coattails and the question really was not addressed. Again
that was the vear where Mark White and Lloyd Bentsen were at
the top of the ticket, they ew Harris County: is that
correct? :
A. ‘82. you mean —— when Bentsen ran for the Senate and
Mark White ran for Governor?
BG. Yes.
A. Yes.
Q@. That was a Democratic sweep then too in Harris County.
as you recall; 1s that correct?
A. I think so.
G. But James Muldrow was, was Mr. Muldrow. he is a
Democrat: is that correct?
RE, TW ST DC TPN I TR We ee TT SN Te a = om TY SUSICREIE GE WAT Jr er nO Lu MAS en 2 ya as
24
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Berry —- Redirect — McDonald 4-39
A. And Rlack.
GG. And EBlack. He lost?
A. Yes.
8. John James. is he a Democrat?
A. Democrat.
8G. And is he Black?
A. He is Black.
BG. He lost; is that correct?
A. That's right.
Gd. And, I am sorry. Clark Gable Ward. he is a Democrat
and he is ERlack and he lost?
Af. Yes.
G. One question that ——:one statement that Mr. Clements
made 1 found interesting. Feople make mistakes. Let me ask
vou a hypothetical, and this will be my last question.
Judge, I promise. it may be long but it is going to be my
last. It may have a lot of semicolons in it.
THE COURT: With that your answer is probably
going to be ves.
MS. McDONALD: No. no. no. no, no, No.
BEY M5. McDONALD:
G. I want you to assume something that we have heard for a
few days. There have been many abhorrent incidents, Elack
candidates have lost, won. we just talked about one in 1982,
1984 when the top of the ticket was Democratic and Black
24
25
Rerry — Redirect - McDonald {4-60
Democrats lost. So there has been testimony, you just told
us about two years where the top of the ticket was a
particular party, and Blacks, being of that party. lost.
That 1s one. There has been evidence from Dr. Engstrom that
Blacks consistently fall in the bottom of the Democratic
candidates. That is when they run as Democrats compared
with White Democrats who are running between 1980 and 1988,
and in fact he testified 52 EG the White Democrats
won and only 12.5% percent of the Black Democrats won. So
consistently. rather, White Democrats are doing better than,
than Hlack Democrats. Would you accept that hypothesis?
A. Well. that is my perception. 1 am not a statistical,
but that is my perception and has been for a long time.
@. One question to ask you, because we asked about a
number of elections and asked people about different
elections and polls sometimes, newspapers sometimes, and top
of the, head of the ticket sometimes. Let me give you an
example that I was thinking about just now. I have a son.
He is 19 years old. Let's assume he is younger — no,
accept he is 19. My son. I send him to the store five
times, or any number of times. I give him a quarter — this
doesn't fly either —— to buy a loaf of bread. Say Michael,
go to the store, get a loaf of bread. The first time he
comes back without the loaf of bread.
MR. CLEMENTS: Your Honor, I hate to interrupt
TIN FICCCTCTIE er pa Ey ow a]
Berry — Redirect - McDonald 4-61
counsel. This sounds a lot more like jury argument than
interrogation to me.
THE COURT: I am going to overrule. You are going
to get to that one question pretty quick, counsel.
MS. McDONALD: Our position. Your Honor. is that
there is & common thread that runs through all of these
elections. And that is that EBElacks consistently vote for
Elacks in 98 percent of the times.
THE COURT: Ask your question.
BY MS. McDONALD:
@. Okay. I send him -—— I am trying to get it together. I
send him to the store to get me a loaf of bread. I give him
a quarter. He comes back, no bread. I say 1 gave you a
quarter. He says 1 lost the quarter. Okay. I send ham to
the store the second time and I ask him, Michael, again 1
give him a quarter. He comes back with no bread. This time
he didn't tell me he lost the quarter, he said I gave the
quarter to the grocery person and they gave me the bread but
it fell out of the bag. I send him to the store a third
time, I gave him a quarter again to bring some bread back.
And he comes up with a different excuse. We can come up
with any number of excuses. We can say to the bar poll,
whatever. No, he is telling me he lost it. whatever. The
bottom line is he never comes back with my bread. Would you
say there is some common theme in that? I will respect you
24
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Berry — Redirect - McDonald [4-62
if you say he is a strange one, but just give me your
Opinion.
A. There is a common result. I don't know whether a
common theme or not.
. A common result. he never comes back. he gives a
different excuse every time.
A. That is true.
MS. McDONALD: Okay. That is probably not a fair
question. Maybe Mr. Clements is probably right, I am just
too enthusiastic about it. Pass the witness. Your Honor.
THE COURT: You would starve to death with that
kind of a question. sending him to the grocery store for
bread.
RECROSS EXAMINATION
BY MR. CLEMENTS:
G. Would you pull Defendants’ Exhibit 2 out of that
packet? 1 think you iil find 1t is the Democratic Frimary
results for various years.
A. DW-27
G. Yes. sir.
A. Yes.
+8. Ms. McDonald just said Rlacks consistently vote for
Blacks, and she asked you specifically about Mr. John James
who lost his General Election race in 1982, which he did.
And if you would look in the 1984 Democrat Primary results,
BR EET TR TT
24
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Berry — Recross — Clements 4-63
at the very head of page 2. do you see the Democratic
Frimary results for the 339th District Court where a Black
names White, a Black names John James and an Hispanic Lupe
Salinas was running against one another with the results
that you see out on the right hand columns?
A. Now. this is in the. where we see White. Salinas and
James?
fl. Yes.
A. Now, 1s this the Democratic returns?
BG. That is the Democratic returns in the Democratic
Primary.
fi. All right. Yes.
8. Now. my question to you is, do you recall that in 1984,
faced with the choice between the Hlack James and the
Hispanic Salinas, many predominately Black precincts chose
Lupe Salinas over John James?
A. Yes. That 1s what these figures show.
8. Do you have an independent recollection that that is
the case?
A. What year was this?
a. 1984, the same year you ran your race, as a matter of
fact, your first race.
A. And Salinas later lost in the General Election: right?
I am just trying to get —
Gi. That is correct. He lost with every other Democrat?
24
25
oy Vl ets LN pon Te As NS STAD et Aa Re Sains, Cathe CoRR
Berry — Recross -— Clements 4-64
A. Yes.
8. PRlack., White, Hispanic.
A. And he got 48 percent of the Black vote; right?
@G. No. He got 48 percent of the total vote. My question
toc vou is didn't Salinas beat James in predominately Black
precincts?
A. I don’t know. That is what I was asking you.
what I was asking you about. 1s this Democratic totals?
dd. Well, they are Democratic totals because 1t is the
Democratic Frimary.
A. I am not trying to be —— 1 just don’t understand.
These figures, was this 30,000, 435,000, 14,000,
the records of the Democratic Primary or the General
Election?
@. These are the results of the Democratic Primary.
A. Of the Democratic Primary?
8. Yes. Mr. James never made the General Election in
1984 because he lost to Salinas.
A. That's right.
a. In the Democratic Primary.
A. All right. Yes. Salinas got 48 percent of the vote.
‘ MR. CLEMENTS: All right.
REDIRECT EXAMINATION
BY MS. McDONALD:
G. All right.
EE TT SR OT LT Ye A TT Srey pry A pC
are those
That is
It doesn’t show the percentage of White and
24
25
Berry - Redirect - McDonald 4-65
Black, it just has Mr. James and the percent that he got,
but it doesn’t show what is Black and White, does it?
A. No. That is what I was trying to understand.
MS. McDONALD: Your Honor, may 1 speak with
counsel one moment.
THE COURT: You may.
MR. CLEMENTS: Your Honor, we withdraw Defendants’
Exhibit 8.
THE COURT: Withdrawn?
MR. CLEMENTS: Yes, sir.
THE COURT: I tell you what 1 will do with that
little booger. You may step down. Thank you very much, Mr.
Berry. And we will stand in recess for 10 or 15 minutes.
Thank vou.
THE WITNESS: Judge, 1 am not subject to recall
for any purpose, am 17
THE COURT: I would think not. You don't want to
go back to Houston though, do you?
THE WITNESS: Well, I want to go out and look at
the Midland Army Air Force Base where 1 was commissioned out
here in 1942 as a bombardier.
THE COURT: And as a matter of fact, if you flew
cut you have already been there. Thank you.
(Brief recess.)
{Open Court.)
24
25
4-66
THE COURT: Let me ask a question of counsel. As
I understand, Mr. Mow will put on the next witness; is that
right?
MR. MOW: Yes. Your Honor. We are ready.
THE COURT: Okay. I= that an expert?
MR. MOW: Well, Judge Entz will be very brief and
then there will be an expert.
THE COURT: All right. I am trying to figure out
my schedule. When would you all anticipate the testimony is
going to be complete?
MR. MOW: From my standpoint, Your Honor, 1 think
we have two witnesses after that, after the expert. I would
think we would be through by 4:00 this afternoon, and then
we have another State District Judge who can’t be here until
tomorrow. I suspect his testimony to be short. I mean less
than an hour is what I mean, 45 minutes hopefully.
MS, IFILL: Your Honor, the plaintiff intervenor
for Harris County has one more witness. Senator Craig
Washington was unable to make it today. and we consulted
with counsel on calling him out of turn for tomorrow and
heard no objection, except one slight hesitation on the
State's part. So we will be resting after we settle some
exhibit matters today. But we are intending to call Senator
Washington tomorrow. If we have any problems with him
making it tomorrow we will read a summary of his deposition
A Sr SA a BO HA DEE Sn NE Ss SA A Sc ARI TT SP EEE
24
25
into the record.
MR. CLEMENTS: Your Honor. we have perhaps an hour
of short video tape and two deposition summaries.
THE COURT: Okay. In other words. there will be
no problem, we will hear all of the testimony, we will
finish tomorrow.
MR. HICKS: Your Honor. you haven't heard from the
State. The State has a substantial case left. 1 det Kriow
how much —— I am going to go last on this.
MR. RIGS? We pretty much, we have rested. Ue
need possibly one more witness. We will bring Mr. Sandy
Torres i171 he gets back from Ireland.
THE COURT: What is a Torres doing in Ireland? 1
can’t understand that. you know. I can understand going to
Spain, I can understand going to Portugal, but a Torres in
ireland.
MR. RIOG: I don"t know. Your Honor. 1f he is
looking for his roots. 1 don't know.
THE COURT: He may well find them. incidentally.
knowing Sandy. He may find a .lot of things over there.
MR. RIOS: We may have some rebuttal witnesses.
depending on what the State does.
MR. HICKS: Let me express my first reservation.
my reservation that Ms. Ifill referred to. The problem 1
have is making sure, 1 am going back to make sure. It
AW WE PT TET J TS SAT LT pee TT eS mee
24
25
Senator Washington is called out of order for tomorrow, I
thought he was going to fill out the rest of the day today,
we have a witness that we can bring in this afternoon when
Dallas and Harris County defendant intervenors finish. 1
think we do. 1 have to go back and see if he made his way
down here or over here. And then I think. and I know ——
THE COURT: Gosh, I like these definite answers.
I really appreciate your telling me, you know, with
certaintv. Go ahead.
MR. HICKS: I think I know where the certainty is
going to come from. But I think we can finish tomorrow, but
Dr. Taebel I anticipate will be our last witness, and he
really covers every county. And I just, it is hard for me
to anticipate at this point how fast the cross examination
of him will go.
THE COURT: Let me tell you then what we are going
to do. 1 can speak with certainty. We will not have any
testimony next week. If we don't get through tomorrow we
will just go Saturday. There is no big problem about that.
And 1 am sure that all of you would a whole lot rather get
through this week than to have to either spend the weekend
kere or go home and come back Monday. And I need to tell -——
you all think this is a big lawsuit, but the EPA claims they
have got one next week that will make this one look like
peanuts. It is just they are sending armies of people. 1
~J
24
25
4-469
am going to know more about chromium than I do about Judges,
which is not going to take very long. Okay. Call your next
witness, Mr. Mow. Excuse me.
MS. IFILL: Your Honor. we have some problem with
trying to figure out how to offer depecsition summaries
and/or excerpts. I' guess we need some clarification.
Yesterday we read some of what we call excerpts, what others
have called summaries, into the record. We are not certain
whether these should be marked as exhibits, the summaries,
or whether we shot 1d be ——
THE COURT: They don't have to be marked as
exhibits, but make sure that they are filed here, because 1
will read every one of those. If you have a particular
excerpt that you wish to read from one to call my attention
to some particular matter, well and good. Eut every
deposition summary that is filed I don't think needs to be
marked as exhibits, but they will be part of the official
record in this case.
MS. IFILL: Okay. Finally I would like to offer
the plaintiffs’ other exhibits that have not yet been
offered into evidence.
THE COURT: And they are?
MS. IFILL: Those are Exhibit 7. plaintiff
intervenors are no longer offering Exhibit 9, no longer
offering Exhibit 11. And also we would like to offer
ON AR OTR ITN KP I
FEBS ae LI She Sh Ne
4-70
® 1 ||Exhibit 17, but we understand that plaintiff intervenors
2 |lhave a problem with it because it is not complete which we
3|ljdidn’'t realize.
4 MR. CLEMENTS: Your Honor. our problem with
5 ||Exhibit 17 is this was a deposition on written guestions.
6 ||We filed cross questions. We called our office and
7 llapparently the court reporter never bothered to ask the
8 ||[cross questions. So we do have a problem with 17.
9 THE COURT: Now, which witness is this?
10 MS. IFILi: It 1s the deposition on written
11 {|lguestions answered by the registrar of the voters in Harris
12 ||County.
13 THE COURT: Okay.
14 MES. IFILL: Will we be able to leave the record
15 ||lopen until we get the cross questions answered?
16 THE COURT: Yes. let's do that. Can you get
17 |{those? Can you call the ——
18 MR. CLEMENTS: We just found out today that the
19 ||direct questions ——
20 Me. IFILL: We just received the direct guestions
21 lon Friday. so it has been a little confusing.
22 || ¢ MR. CLEMENTS: We have received nothing.
23 THE COURT: Do this in order to facilitate
24 ||lmatters. During the noon hour. if you would, please call
25 llwhomever you had for asking questions, the court reporter's
NT BE Tp iy FT ST TT rT YY TR LAT RR I NT Teer PETE eT 7 I rama “er WEA aC Rr _ or — a Ee EE
24
25
4-71
office, whoever it was. Tell them the cross questions are
there. would he toodle over to the registrar's office and
get answers to those and send them out here just as quickly
as he can. Will vou do that?
MR. CLEMENTS: He was an Austin court reporting
company. We will do the best we can, Your Honor. These are
not our court reporters. These were plaintiffs.
THE COURT: Well, I hate to classify court
reporters as either plaintiffs’ or defendants’, particularly
on written guestions, you know. It is very difficult to
classify.
MR. CLEMENTS: The problem of toodling around is
the Austin court reporter had to go to Harris County to ask
the direct questions and they are going to have to go back
again toc ask the cross questions.
THE COURT: You all work that out.
MS. IFILL: Just to clarify, I just want to
clarify that we are now offering Exhibit 7 and we are going
to keep the record open for 17 until we get this cleared up.
MR. CLEMENTS: 1 am sorry. which is 77
YHE COURT: No. 7 is?
MR. CLEMENTS: We do not have an objection to 7.
THE COURT: No. 7 will be admitted. And 17 will
be admitted in part today and the other part when we get it
here.
24
25
MR. CLEMENTS: Your Honor, the defendant
intervenor Wood offers Exhibits 53, 54, 55 and the summary
of Judge, the excerpt from Judge Routt which has not yet
been marked.
MS. IFILL: Are those the depositions you read
from yesterday?
MR. CLEMENTS: These are excerpts. 83. 54 and 55.
THE COURT: They will be admitted. No problem
about that. All right. Mr. Mow, I will try again.
MK. MOW: 1 estimate 4:15 now, Your Honor. Now,
to begin with we will offer Defendant Intervenor Dallas
Exhibits 1 through 23. There should be a black notebook on
the Court's bench. and Mr. Polino has one. No. 23 is in the
flap because it was just prepared last night. 1 believe the
authenticity has been stipulated to, so we will make a
formal offer of all of them at this time.
THE COURT: Mr. Cloutman?
MR. CLOUTHAN: Yes. We have no objection, Your
Honor, as Mr. Mow indicated. toc the authenticity or the
accuracy of the exhibits. We have an objection as to
relevancy and weight that will go to some of them. If now
is a proper time I will indicate.
THE COURT: Tell me which ones you don't think are
relevant.
MR. CLOUTMAN: Defendants’ Exhibit, I am sorry,
{4-73
1 ||Defendant Intervenor Dallas Exhibits 11 through 1% are a
2 ||telephone poll which we don’t doubt the accuracy of, but
3 ||doubt the weight or relevancy of. 1 have a question as to
4 ||Defendant Intervencr Dallas Exhibit 16 as to the author.
5 THE COURT: The regression analysis?
6 MR. CLOUTMAN: Yes. sir. That is the exhibit I
7 lreferred to.
8 MR. GODBEY: That is an exhibit prepared in our
g ||loffice much as vour vote tabulation summaries were prepared
10 [land have been reviewed by both Dr. Champagne and Dr. Taebel.
11 THE COURT: Okay.
12 MR. CLOUTMAN: No objection to that. Your Honor.
13 [|And 1 didn’t know whether the two newspaper articles, which
14 [are Defendant Intervenor Exhibits 20 and 21 were offered for
15 ||the truth albeit. If they are, we cbject to hearsay.
16 MR. MOW: Just to show what they say. Your Honor.
17 MR. CLOUTMAN: We will stipulate Judge Howell
18 ||received such press.
19 ME. MOW: Insofar as they quote Judge Howell we
20 |lwould offer that for the truth.
24 MR. CLOUTMAN: I am not in a position to dispute
55. ix.
23 THE COURT: All right. Fine.
24 MR. CLOUTMAN: Finally, Your Honor, there is
o5 llsomewhat of a guestion, and it is a minor one, as to the
4-74
number counting for the Intervenor Dallas County Exhibit
18A. It 1s a representation by ethnicity of the attorneys
in Dallas County. It is not a big question. We think the
Rlack lawyers, some are under counted from our information.
new record from Mr. West the other dav. His Hlack
lawver membership tends to be higher than what they list.
Other than that we have noc objections.
THE COURT: Thank you. Your witness is?
MR. MOW: Judge Harold Entz.
{Witness sworn.)
HAROLD ENTZ, WITNESS, sworn
EXAMINATION
BY THE COURT:
G. Tell me your name. where you live and what you do.
please.
A. My name is Harold Entz. Judge of the 194th District
Court, Dallas County, Texas.
tt. All right. Give me a little bit about your background.
if you would, please.
A. Yes, sir. Judge. I attended Northwestern University,
Evanston. Illinois. Then to law schocl, Waco, Texas. 1
game to Dallas in 1967. was a prosecutor in Dallas District
Attorney's Office until 1970. 1 was in private practice
with two different firms in Dallas until June 18, 1973.
was then appointed to a newly created County Criminal Court
24
25
Entz — By the Court 4-75
bench in Dallas, specifically County Criminal Court No. 4.
I was Judge of that particular Court until February 4 of
1988. I have been Judge of the 194th District Court since
that time. I ran for election five times. two times they
were contested elections in the General Election.
G. Okay. You probably didn't know that June 18. 1973, was
my 26th wedding anniversary, did you”
A. No, sir, 1 did not.
THE COURT: Okay. Go ahead.
DIRECT EXAMINATION
BY MR. MOW:
G@. Judge Entz, have you been active in any bar work in
addition to your judicial duties?
A. Yes. I was very active, first in the, used to be the
Junior Bar of Dallas, now the Dallas Association of Young
Lawyers and the Dallas Bar Association. Especially the
judicial section of the State Bar. I have been very active.
GG. What have you done in the State judicial section?
A. The State judicial section, 1 have been a member of the
executive committee of the judicial section of the State
Rar. I have also been on the executive committee of the
Texas Center for Judiciary which is the educational arm of
the judicial section. In addition I have spoken at numerous
regional, state wide conferences on search and seizure,
criminal rules of evidence, docket management, matters of
TRIN TR RT — of Arena EE
24
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Entz — Direct - Mow 4-76
that sort.
@. And are you familiar with how the Criminal Court's
system is organized and run in Dalias County, both at the
County Court level and the District Court level?
A. I am.
@. Can you just describe to the Court briefly what the
system is?
A. Dallas County at the present time, Judge, has 10 County
Criminal Courts. These are Courts by statute, Constitution
and preside exclusively over criminal offenses classified as
misdemeanors alleged to have been committed in Dallas
County. We have two Courts designated statutorily as County
Courts of Criminal Appeals. These are Courts that on a de
nova basis try Appellate Class C misdemeanor from Justice
and Municipal Courts within Dallas County. Up until
September 1st of this year we had 14 District Courts that
exclusively on a specialization base presided over felony
grade criminal offenses. In the last session of the
Legislature we got a 15th Court. We now have 15 Courts that
handle felony grade offenses alleged to have been committed
in Dallas County.
+8. Are those Courts accurately reflected on our Exhibit
No. 22 in the black book there?
A. With the addendum about which I made reference. the
363rd District Court came into existence September 1st.
24
25
REAL SE SANE Sons wb HT Sk
Entz - Direct - Mow 4-77
Q@. So the 363rd needs to be added?
A. Right.
BG. How 1s jury selection handled for the Criminal Courts?
A. Jurors from Dallas County are summoned daily Monday
throuah Thursday from a pool of jurors from the voters that
are registered throughout Dallas County, plus statutorily
soon to be included will be the driver's license. But that
to the best of my knowledge has not been yet included by the
data processing department in Dallas County.
GG. On the County bench are there currently any Rlack
Judges?
A. Yes, there are.
@. How many?
A. One. Well. there is one Criminal, County Criminal
Court No. 6, Judge BRBerland Erashear is Black. One of the
Civil County Court at Law Judges is also a Black,
1. And of the District Courts, Criminal Courts. how many
are Black?
A. District Courts. there are two Black District Judges,
Judge Carolyn Wright, Judge Larry Baraka. There is one
Hispanic Judge, Civil District Court, Judge Adolph Canales.
G. In the criminal area, Judge Baraka is the only Black
Criminal Judge?
fF. He is, true.
Q@. Now. you have run races county-wide in Dallas County?
TT TT 1 TE mera tg eae. 70, FY Sper YY IN Tp wr pnt ——— ~~ sa prone
24
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Ents "-~ Direct - Mow 4-78
A. I have run county-wide in ‘74, ‘78, ‘82, '86 and 88.
G. And which of those were opposed?
A. ‘82 and 'Bé6.
THE COURT: You ran in ‘86 and ‘887 Did you
change Courts?
A. Judge. I was appointed and under the Constitution I was
obligated, I filled an unexpired term so I was obligated to
run at the next General Election which was in 1988.
BY MR. MOW:
a. Now, when you were appointed first. Judge Entz, back in
1972, which party were you a member of?
A. I was Democrat. Appointed by a very conservative
County Commissioners’ Court.
@G. And are you still running as a Democrat?
A. I am not.
@. When did you change?
A. I changed in 1981.
@. And why did you change?
A. The purpose of my changing was the liberal faction of
the Democratic party in Dallas basically invited those of us
who were conservatives to find a party elsewhere.
+8. And did you lose any friends or family support or
anything by changing?
A. No, 1 dig not.
@. From your experience in your races, Judge Entz. has
24
25
Entz - Direct - Mow 4-79
there been philosophical or political difference at District
Court or County Court level in the races as between the
Democrats and Republicans? |
A. Not that 1 am aware of, no, sir.
@. Do vou recall what your campaign costs were in the two
county races you ran in I believe you said '82 and 867
A. Each of them were $20,000.00, plus or minus $1.000.00
or $2,000.00, county-wide.
@. Judge Entz, at any time in your experience has there
been any impediment to any citizen in Dallas County running
as a FHepublican?
fA. None at all.
@. What does it take to run as a Republican? Let's
confine this toc the District Court bench.
(A It used to be the —— but the filing fee this coming
vear, not only the filing fee but the 250 names. Other than
that. nothing. Other than the Constitutional
gualifications, of course, one must have to run for Judge.
@. Judge Entz, are you personally interested in increasing
the mineority participation in let's say civic and business
and judicial affairs in Dallas County?
A. I am.
0. Have you personally made any efforts in that regard?
A. I have.
Q. And can you tell the Court briefly what those are?
Ra TH RE BI TCT ey pee
24
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Entz — Direct - Mow 4-80
A. Yes, sir. 1 sponsored the first Black woman in the
Downtown Rotary Club. I have been very active in increasing
the Rlack participation in responsible areas in the Dallas
District Attorney's Office. I asked Mr. Wade if he would
consider promoting & young Black female by tne name of
Brenda Christian to a position of Chief Prosecutor in County
Criminal Court. She had been passed over a number of times
for promotion. That concerned me. 1 spoke to Mr. Wade
about it. He asked me if I would accept her as the Chief
Prosecutor in my Court. I said Mr. Wade, she is your
employee. and you send me who you think you want to
prosecute cases assigned to my Court. But, yes, I would
welcome Erenda Christian as the Chief Frosecutor. Not
solely, 1 am sure because of my suggestion to Mr. Wade, but
she was shortly theraatipr appointed Chief Prosecutor and
happened to be in my Court. Likewise with regard to Court
appointments of attorneys. I do not use Public Defenders in
my Court, and I am very proud of the number of minority
attorneys. both Hispanic and ERlack, that I appoint not only
for trial of cases but also on appeal.
G. Have you personally undertaken any effort to try to
encourage qualified minority candidates to run on the
Republican ticket for the judicial bench?
A. I sure have.
@. Who in particular?
TENN TE TE TR TTI (EAN mene 8 re x CE ETRY TT AT Tm eT £7 Th eng rr RT EH TIATL YL gr “3 Sm eae
Entz - Direct - Mow 4-81
yA 1 A. I have specifically spoken with former Judges Fred
2 |Tinsley and Jesse Oliver and encouraged them to give serious
3 |lconsideration to continuing their judicial career and
4 [running as Republicans.
5 @. Any others you can think of?
6 A. At the present time there is an opening in the 162nd
7 IDistrict Court, or there will soon be at the end of this
8 ||month. and there is an Hispanic male trial lawyer whom 1
9 ||have encouraged to seek an appointment because I think he is
10 ||a fine trial lawyer and would be a good Judge. Also I have
11 ||good reason to believe that there is a senior felony
12 ||prosecutor in the Dallas District Attorney’s Office who is
13 ||giving very serious consideration, and not only I but others
14 ||have been encouraging her to run for a Criminal District
15 ||bench.
16 GG. Judge Entz, you are aware that the claims in this suit
17 ||involve a claim that the Blacks in Dallas County will be
18 ||better represented on the District bench if the county is
19 ||lcarved up into smaller subdistricts. Do you understand that
20 lis part of this lawsuit?
21 A. 1 do.
25 @. And in spite of your testimony about what you have done.
23 ||personally in the minority recruitment or encouragement
24 ||area. you have intervened in this lawsuit. have you not?
25 A. I have.
NE EA YE Jw ra Jem ee YT Tr 237 £7 Trg sye 7 3 Tr ET Br WE LL ET ARB TY ra pp 2 IY mE WY WT TPE I ARR eh nr ma
CAT NA TR ITB SS CE rN J NI Ie
24
25
A ET 0 TW eT 1 rR, mA Ay yn a rh . ne RI A RE
Entz - Direct —- Mow 4-82
GQ. What were your purposes for intervening?
A. My purposes for intervening is I think that Blacks,
Hispanics have a completely open opportunity now to
participate and participate effectively and win in Dallas
County. I am troubled by the specter of a smaller District
with undue influences that may become to bear upon Judges in
that smaller District by various and sundry outside
influences. But by the same token I fear that were this
remedy to come about, the stigma on the Court, not from me
or another Judge. but the public may perceive when going
into a Court presided over by a Judge who is there first by
the pigment of his or her skin, and then who happened to win
the election, that if one of the litigants was other than
of the same skin color of that Judge. there may be in the
mind of that litigant the perception that justice was
perhaps tilted on color lines rather than on a fair
application of the law to both sides.
GC. Now. from your experience in the Dallas County judicial
system, Judge Entz, has there been any problem or hint of a
problem with the factor vou just mentioned. that is with
Judges presently being elected county-wide, have you known
of or heard of any problem with some litigant feeling like
they didn't get treated fairly simply because of the ethnic
background of the Judge?
A. Absclutely not.
Entz ~ Direct - Mow 4-83
@. Now, you said that it troubled you that small Districts
might be subject to influence. And why does that trouble
vou?
A. Well, I perceive the possibility that a financial
institution as a for instance, not suggesting that anyone
necessarily would. but that possibility existe. Ey the same
token, some of my Black judicial friends, being in the
criminal business that I am, I think somebody could unduly
influence a race in the Black community other than proper
appeal for votes.
8. Any cther reasons why you ——
THE COURT: You are going to have to come again
with that. I am not following you on that, Judge.
A. Judge Bunton. it has been articulated in Dallas that
with the unfortunate, though pervasive drug problem. that a
drug kingpin could arguably, with the tremendous assets that
some of them have, influence the outcome of a judicial race.
THE COURT: Can you tell me whether or not that
has happened?
A. Not in Dallas County at the present time, no. I hope
it would never happen.
EY MR. MOW:
@. Why. Judge Entz. would it be any different in your
opinion with a smaller subset of Dallas County than it would
be now with the entire county?
24
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Entz - Direct - Mow 4-84
&. Lesser number of voters that need to be influenced and
vote.
a. And for you to run successfully now county-wide. what
pert of contacts do you have to make in the county?
[AT What kind of contacts do 1 have to make in the county
at the present time”
QB. Yes.
A. Basically to be successful at the present time in
Dallas County is win the Republican Primary.
@. But my question is what do you have to do. do you just
sign up and sit there, do you have to campaign?
A. Absolutely not.
0. What is 1t you have to do?
A. No, the civic. the groups. the groups before whom 1
appear —— assuming a contested race, 1 assume, Mr. Mow ——
appearing before contested races all over Dallas County.
from Cedar Hill to Saxi, from Kappel down to Waller Heights.
Dallas County, when you cover that county-wide. is a big
county to campaign in, lots of people.
MR. MOW: Your Honor, we put Flaintiffs' Exhibit 1
in there as a map in case the Court is not familiar with all
those colloquial names. If the Court would prefer. we can
have the witness point out the areas. I have no further
questions. Does the Court have any questions of the
witness?
24
25
2
A TS ETS YL CT Rp TE TI ST TR TIS CT FO ne A A TA Ee YEAS “TT bn Se ape Im ap pum WR I TD TTR FATT Tae em mgm eT CN pm
$554 >
Entz - Direct - Mow 4-85
THE COURT: My only perception about dope kingpins
taking over, if you believe that that is a possible problem,
I can’t believe, seeing as many dopers as 1 do every year,
that they would limit it to a particular geographical area
and not go all over Dallas County. If 1 were a dope kingpin
inn Dallas and 1 had the kind of money that some of them 1
feel sure do, 1 think either as a Republican or a Democrat,
Y don't think --
Af. Could be influenced either way. Absolutely.
THE COURT: Either way. You could buy out the
opposition, vou know. you are not going to run. There are
too many ways that could happen.
A. Correct.
THE COURT: That 1s the only thing I have to worry
about, and 1 worry about it, not in the little single member
Districts. 1 worry about it all over the State of Texas.
A. I think that fear is well founded, Judge.
THE COURT: Thank you.
ME. MOW: Thank you, Your Honor.
THE COURT: Does Mr. Cunningham have to introduce
himself?
Af. Only if he feele it necessary. Judge.
MR. CUNNINGHAM: I know Judge Entz well, Your
LJ
{
Honor.
THE COURT: I suspected as much.
24
25
CROSS EXAMINATION
BY MR. CUNNINGHAM:
Q@. Judge Entz, you indicated that when you were first
appointed you were a Democrat?
A. Correct.
G. And remained a Democrat up until 1981 when the mass
exodus occurred?
A. When one of the several mass exoduses occurred.
G. And you mentioned that the liberal faction invited you
all to find another party. That was not Rlacks, was it?
A. Liberals. Rlacks, Hispanics, White. It was ——
QQ. Can you tell me what Elacks invited you to leave the
Democratic party and find you another party?
A. Mr. Cunningham: it was not an engraved or formal
invitation. It was that there was no meaningful voice to be
heard in the Dallas County Democratic party for a
conservative. The effect of their conduct was to make us
feel unwanted. Ferhaps that would be a more appropriate
choice of verbs.
@G. There are probably, there are six predominantly Black
precincts, 50 percent or above. Did any of those precinct
chairmen invite you out of the Democratic party and say find
another party?
A. Not specifically, no. Absolutely not.
GG. You mentioned the jurors meet daily Monday through
24
25
Entz - Cross - Cunningham 4-87
Thursday through a pool. Is it your perception that if
there are single member Districts that there is going to be
a pool in each District?
A. Mr. Cunningham, I don't know how the proposed remedy
would work. I would hope that ad infinitum the jurors that
come to a District Court in a county come from a cross
section of the jurors in that county, not just simply from
individuals from a particular limited Beoararhical area. but
a cross section of the entire county. 1 see a number of
problems that could come up in the prosecution of cases.
For instance, obscenity. One of the guestions the jury is
asked is, you know, whether or not it is offensive to the
norms at ihe community, rather than just a small isolated
District. 5o I see a number of potential Constitutional
problems where juror is not to come from the entire county.
Q. 1¢ the only change was the method in which Judges are
elected, and everything else remains the same, then that
problem. the jury problem would not exist that you envision
or think may occur; is that correct, sir?
A. Well, I disagree with making smaller Districts other
than county-wide. Yes, 1 see no problems with the question
as you soc stated.
GG. Judge Tinsley did not accept your invitation to the
Republican party, neither he or Jesse Oliver, Judge Oliver?
A. Unfortunately they did not.
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Entz - Cross -— Cunningham 4-88
G. The undue influence that you have given as one of the
purposes for your instituting this suit is not limited to
Districts that may be predominantly Black?
A. Absclutely not. No.
GG. And undue influence can actually occur in the manner in
which a Judge is elected now?
A. That possibility exists, yes.
Q. If the large law firms want to spend a lot of money,
want all of their attorneys to put out signs and everything,
that can happen? There is still, in other words that
possibility of undue influence in county-wide races”?
A. I think undue influence exists county-wide or state
wide. As a matter of fact that subject formed the basis of
a rather extensive presentation yesterday at the State
Judicial Conference in Dallas. Jack Fope. Nathan Hecht, Joe
Jamell, and a number of other persons spoke at that
presentation.
GG. Do I understand that the litigants in a Court where the
llperson is elected from a District, say a Black District,
there would be some perception that it would tilted. that
they would not get fair justice?
tA. Excuse me, Mr. Cunningham. I apologize, Your Honor. I
fear that a litigant appearing in a Court, take for instance
in my Court. Let's assume that the defendant is minority
and the alleged victim of the offense is Anglo. I would
TT I Sr wm 7 TA I ROR Te Te Ap WS A Sn gan J, i mn i a Tat i Ea i oe 3 rv
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Entz — Cross -— Cunningham 4-89
hate for the defendant to have the perception before even
the trial began, look, this is an Anglo Judge, I am a
minority, the victim is a minority, therefore 1 don't want
the defendant to feel. well, there 1s a racial tilt by the
Judge on the side of the victim. I don't want that to
happen.
THE COURT: Does it happen right now?
BY MR. CUNNINGHAM:
@. You can’t tell the Judge that is not happening now. can
A. I think it would be less pronounced. is less pronounced
now because elected county-wide. And if you put me in a
District from which only a White can win. then an aggrieved
minority. how would he or she have the right to express this
affection with me by voting against me. They would have a
recourse, what kind of recourse would the person have in a.
in a smaller District in which they could not vote
presumably, without the remedy.
Bg. But -—-
A. If the perception —— I am not saying it would happen.
8. You cannot tell the Court right now that a Black who
comes into your Court and sees you, a White Judge, two White
prosecutors, a White complainant, cannot, does not say
that, you know, I am not getting a fair shake, and probably
12 Whites in the jury box, cannot say I am getting a fair
TE
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YE TP TR ATI IE LT ree TUE
Entz — Cross — Cunningham 4-90
shake, that he has a perceived perception, even though you
might run county-wide.
A. I am sure that perception has existed in the past,
exists right now.
CG. Are vou familiar with precinct 8 where Judge Cleopus
Steel is Justice of the Feace?
A. In a general sense 1 am. Mr. Cunningham.
BG. You also know that he is a lawyer?
A. Yes.
a. You have not heard anyone say that simply because he is
running from precinct 8 that Whites go into his Court do not
receive a fair shake?
A. I have not heard that.
G. What 1s the race of Cleopus Steel?
A. Black.
a. In fact there are two Judges in that precinct, aren't
there? George Allen was there.
A. Correct.
@. What was his race?
A. Judge Allen is a Black man.
GG. And I think Charles Rose is now.
+A. He 1s a Black man.
@. And you have not heard of —— strike that. They are
elected strictly from precinct 8; is that correct?
A. Correct,
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Entz - Cross = Cunningham 4-91
BG. A limited number of people?
A. Correct.
G. And you have not heard that any White has said I didn’t
get a fair shake in either Judge Steel's Court or Judge
Allen's Court or Judge Rose's Court?
A. I have not heard that.
GB. Well, I think the Judge dealt with the drug problem.
What other improper appeals ——
THE COURT: No, I did not deal with drug problems.
I have not been able to deal with drug problems.
MR. CUNNINGHAM: I am sorry, Judge. You talked
about it. 1 apologize.
THE COURT: 1 wish 1 could.’
A. So do ll.
BY MR. CUNNINGHAM:
8. The improper appeal would still Spply whether it is a
Elack District or White District, Hispanic District,
American Indian District?
Af. 1 am just saying the focus would be greater in a
smaller District than it is county-wide.
G8. Are you aware of how many Blacks have run in the
Frimary in the Republican party, sir?
A. Contested Primary, Mr. Cunningham?
@. For District Judges.
A. For District Judges, two if I am not mistaken.
BTC A Te RAT TY
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Entz - Cross - Cunningham 4-92
G. That's correct. One is Judge Larry Baraka.
A. Correct.
@. Another one was Carolyn Wright.
A. Lorrect. Incidentally, both of them had white
cpponents in the Republican Frimary and prevailed.
3. Judge BRaraka’'s primary opponent was who?
A. Certified criminal law specialist Ms. Brook Busbee.
G8. And her race?
A. White.
B. And was there an issue injected into that race that you
normally do not find or would not expect to find in a
judicial race?
A. A very unfortunate comment was made on behalf of the
candidacy of Brook BRushbee avd the county chairman, Tom
James. addressed it very forcefully and immediately.
Ct. Do vou want to tell the Judge what that issue that was
injected was?
A. Me. Busbee made a comment of. which could arguably be
construed as racial in nature, and Tom James in my opinion
very properly and immediately told, called a press
conference, that there is absolutely no justification for
that type of appeal in the Republican party in Dallas
County, and took the very unusual step for a county chairman
in Dallas County of endorsing Judge Baraka. Not solely
because of the perceived campaign tactics of the opponent,
ET RT INCI SRT ET TT
Entz —- Cross - Cunningham 4-93
but also because —-— Mr. James could speak for himself, he
will be a witness —— Judge Raraka was doing a good job as
Judge.
QQ. Tom James is a White male?
fF. He is.
@. He did not endorse Judge Baraka until after race
became an issue in that race; isn't that true, sir?
A. He endorsed nobody. 1 have not known of Mr. James to
endorse anybody in any contested Republican Primary other
than Judge Baraka. Only then I perceived his endorsement
because of what he saw to be an improper campaign tactic. 1
completely with what he did.
G. Wouldn't you also agree with me that the fact that the
Republican ehairien endorsed Judge Raraka had some effect
in influencing White Republicans in the Republican Frimary?
A. I would hope that the chairman of the Republican party
in Dallas County would have sufficient with Republicans that
they would listen toc him.
BG. And what year was that, Judge Entz?
A. ‘86, 1 believe, if I am not mistaken, Mr. Cunningham.
That campaign of ‘8&6 would have been, the Primary was in '835
then.
A. ‘88; was it? Okay.
MR. CUNNINGHAM: Your Honor, for purposes of the
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Entz - Cross - Cunningham 4-94
record we direct the Court to Defendants’ Exhibit 5A which
should show that the election occurred in 1988. May I have
a minute, Your Honor.
Fass the witness, Your Honor.
THE COURT: Do you really think, Judge Entz, that
Eob Mow would put up yard signs for Mr. Luce?
A. I am sure that Mr. Luce hopes he will.
MR. MOW: Only if we get through here.
THE COURT: De you think that Mr. Hicks will put
up vard signs for General Maddox?
A. I thank that is a safe assumption, sir.
MR. RICKS: I concur.
REDIRECT EXAMINATION
BY MR. MOW:
G. Judge Entz, I neglected to ask you one guestion. When
are you up for reelection”
A. 1750.
Gi. Okay. Do you know if precinct 8 has a limited
Jurisdiction?
A. It does.
@. And are the Justices of the Peace there elected by a
limited number of people within the county?
A. They are.
MR. MOW: No further questions. Your Honor.
THE COURT: Thank you very much, Judge. Get on
TTR EIN TITY STI J Te TT SC YT I se
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a alan Ed
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back to the convention.
MR. GODBEY: Defendant Judge Entz will call
Professor Anthony Champagne.
THE COURT: Raise your right hand. please.
oe?
{Witness sworn.)
ANTHONY CHAMFAGNE., WITNESS. sworn
EXAMINATION
BY THE COURT:
Q. Tell me your name. where you live and what you do.
please.
A. My name is Anthony Champagne. I live in Flanoc. Texas.
and I am a professor in the School of Social Sciences at the
University of Texas at Dallas.
8. All right. Give me something of your educational
background. where you have taught and all that sort of
stuff.
A. I've got a bachelor's degree from Millsaps College. went
to graduate school at the University of Illinois and got an
MA and FhD degree in Folitical Science. I then taught
Political Science at Rutkers University, Livingston College
and then went to the University of Texas at Dallas in 1979.
and 1 have been there ever since.
G. All right. Have you testified before?
A. I have not testified in Court before. I have testified
in Legislative Procedures.
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Pre
Champagne — By the Court 4-96
G. Oh, before —
A. The Joint Select Committee on the Judiciary and a
committee that was examining the Washington Court system.
. The Washington Court. you mean the State of Washington?
fA. State of Washington. ves.
@. All right. And when was this?
A. The testimony before the State of Washington Committee
was last year. And the Joint Select Committee was I believe
1987.
G. Okay. And what were you hired to do in this case”?
A. Basically to examine the Dallas County District Court
races. and to also identify policy considerations that favor
the county-wide selection of Judges, to sort of reflect on
my research in terms of policy appeals or racial appeals
that might have been made in Dallas County judicial races,
and to examine voter awareness of Judges in Dallas County.
THE COURT: Go ahead.
DIRECT EXAMINATION
BY MR. GODBEY:
@. Frofessocr Champagne, we were not the first location
that you had ever had to examine the judiciary; is that
aorrect?
A. That's correct.
G. When did you first start considering in your academic
research the judiciary and the judicial process?
oT A NY EE SE KY ER Sh Bs M3 2 pls STIR A LS Fa Re Fo RARE SY Ei bo Us at) A SA PS Ss GRR ti
SR a ST -SEOMES ed . > - by wn . ¥ ‘ % :
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PRL re
TE FL ES eT
Champagne -— Direct - Godbey 4-97
A. Really about 15 years ago in terms of general
examination of the judiciary. My sub-field in Political
Science is Public Law which focuses on Courts and law in
society. ©Since 1985 1 have been looking at the Texas
Judiciary and have been doing research on selection of
Judges in Texas, and published some of that research on the
Teras judiciary. I am currently writing a book, which 1 am
hopeful will eventually be completed.
@. Approximately how many publications have you authored
concerning the Texas judiciary or judicial process
generally?
A. The judicial process generally, 1 would say 30 or so.
The Texas Susiciary, tour academic publications.
@. Have you edited books regarding the judiciary and the
judicial process?
A. Yes. I have.
MR. GODBEY: Your Honor, we would offer Professor
Champagne as an expert witness.
THE COURT: I will recognize him as such.
BY MR. GODREY:
GG. Just for the record. if you would, please, Frofessor
Champagne, can vou turn to Exhibit 3 in the notebook in
front of you labeled Defendant Intervenor Dallas Exhibits?
A. Yes.
8. Do you recognize that exhibit?
Champagne — Direct - Godbey
Yes, 1 do.
And what is that?
This will be my academic resume.
To the best of yvour knowledge does that present
accurate portraval of your academic experience and
professional publications?
A. Yes, it does.
@. Are you familiar, Dr. Champagne, with generally
has gone on in the Dallas County courthouse in terms
judicial selection in elections over the last 10, 15
A. Over the last 10 years, I would say.
G. Generally could you describe what has occurred in the
Dallas County courthouse in that time frame?
A. In that time frame what has happened-basically is that
Dallas County has moved from a one party Democratic system
at the District Court level to essentially a one party
Republican system. That transformation has occurred
beginning in 1978. beginning with the 1978 elections and
essentially ending with the 1980 elections where only one
Democrat remains on the District Court bench.
Q. If you would, please, Dr. Champagne, would you turn to
Exhibit 4 for me.
Your Honor, for the record, some of these exhibits
the numbers are followed by a letter, and that was simply
for housekeeping to indicate that they are the corrected
£
NTS FE a To TT Pm wT Th SR KT TTR TY EI I 3 TSR fr re ace
aries Ly SiS 20 ou [hath PACH TA mig Ra SE
Champagne -— Direct - Godbey 4-99
version of the exhibits. For convenience sake, since there
is no Exhibit 4, I will just refer to the exhibits by number
without indicating an a.
Can you identify Exhibit 4 for us, please.
Frofessor Champagne?
A. Exhibit 4 is a graph showing the percentage of
Republican Judges in the Dallas County courthouse, Dallas
County District Courts over time, beginning in 1977 and
going through 1988.
@. And generally what trends does that exhibit reflect?
A. A very sharp rise in the percentages of Republican
Judges on the District bench. Zero since 1978 elections and
substantial increases up until 1986 when it levels off
because you reach almost 100 percent. —
Q@. And could you look briefly at the second page of
Exhibit 4 and just describe what that portrays?
rn. The second page of Exhibit 4 simply shows that there
has been an increase in the number of District Court Judges
over time, from 21 in 1977 to 36 in 1988. Also very
substantial increase in the number of Republican Judges
going from 0 toc 3 to 10 and eventually up to 35.
8. And the second page of Exhibit 4 provides the numeric
data that is graphically portrayed on the first page”
A. Yes.
a. If you could just briefly turn to Exhibit 3, and
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Champagne — Direct - Godbey 4-100
describe what is shown in that exhibit.
A. This 1s a listing as could best be determined of Dallas
County District Court Judges, excluding those Judges who
held interim appointments and who did not win elections.
This would be a listing of those Dallas County District
Court Judges by year for each of the Courts.
QQ. So. for example, in 1982 that is a list of the Judges
after the General Election in "827
A. Yes.
Gl. Is this the detailed information that forms the basis
for the tabulations shown in Exhibit 47
A. Yes.
Qa. If you would, please, air. could you turn to Exhibit &
and explain what that exhibit shows?
A. Exhibit 6 1s a listing of the contested Dallas County
District Court General Elections, from 1976 through 1988.
@. Following Exhibit 6 are there some graphical exhibits
that provide analysis for the raw material in Exhibit 67
A. Yes. That is true.
@. Could you turn for me, please, sir, to Exhibit 7 and
explain to the Court what that exhibit illustrates?
+A. Exhibit 7 is a graph of the percentage of Republican
victories in Dallas Count District Court races over time.
It shows a steady increase in victories from O in 1976 on up
to virtually 100 percent once you get to 1984 and beyond.
3 FT I TEC TR CAR pS TY FAY
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Champagne — Direct - Godbey 4-101
Q. 1986 shows a slight dip, does it not?
A. Yes, it does. 1986 is when Ron Chapman won and Ron
Chapman is a Democrat.
Q. All right. Although I think we will have some other
testimony and exhibits dealing with Judge Chapman later, in
brief do vou have any theories as a partial explanation for
Judge Chapman's victory?
A. Judge Chapman is a person with unusually high name
recognition, given that his name is the same name as a disc
jockey in Dallas County who has been on the radio for about
20 years and who is widely publicized.
@. Without necessarily turning back to it right now. you
will recall Exhibit 4 was a graph that looked somewhat
similar toc Exhibit 7, Exhibit 4 showing the overall
percentage of Judges in Dallas County who are Republican.
Just for clarity. what is the difference between that
exhibit and Exhibit 77
A. This would only involve contested races. The other one
is Dallas County Judges who are Republican in general.
Ql. Could you describe briefly what the second page of
Exhibit 7 shows?
A. The second page of Exhibit 7 shows over time the
numbers of contested races, the percentage of Republican
victories and the number of Republican victories. Again,
the percentages of Republican victories tend to increase
EIT AT A EE A TT ry gre Te rar a ES — a BT —— EL vp Ape TIE ) = ~ 7 S 3
24
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Champagne - Direct - Godbey 4-102
over time.
a. Is the second page of Exhibit 7 the tabular form of the
data that is shown in graphical form on the first page ot
Exhibit 77
A. Yes.
@. And is the data in Exhibit in some reform based on the
detailed data that was shown in Exhibit 67
A. Yes.
Gi. If vou would, please. sir, would you turn to Exhibit 8
and describe to the Court what that Exhibit portrays?
A. This is the number of contested District races in
Dallas County over time. I think that this graph is an
important one because it shows how contested races increased
dramatically in the, after 1978, really. And then began to
drop off dramatically. This is a time from 1978 through
19846 when there was two party competition in Dallas County.
And prior to 1978 there was not two party competition, there
is only one contested race. In 1988 there is only one
contested race. 19756 was when a Democrat won that one
contested race, in 1988 a Republican. It is as if over this
decade we have completely gone through the shift and the
number of contested races has dropped off to nearly nothing.
@. That is an indication of dominance by a single party”?
Fe. It is an indication of the emergence of a one party
system, yes.
Champagne — Direct - Godbey 4-103
% 1 @. Could you turn back for me, please, sir, to Exhibit &?
2 A. Okay.
3 G. With reference to Exhibit 6, could you tell me when the
4 lllast year was in which a Republican candidate lost an
5 {lelection for an open seat?
6 A. The last vear a Republican candidate lost an election
7 for an cpen seat would have been 1978.
) 8. Other than Judge Chapman, what is the last year that a
9 ||[Republican candidate lost a campaign or election against an
10 incumbent Democrat?
11 A. 1982.
12 Gi. And are you aware of any particular characteristics of
13 ||the winning Democratic incumbent in 19827
14 A. All of the winning Democratic incumbents were Judges
15 || that, that I would call more senior Judges. They were
16 {Judges who have been on the bench for at least one term of
17 lof fice, they sort of established themselves to an extent.
18 @. From Exhibit 6 do you draw any observations regarding
19 ||judicial candidates who change parties?
20 A. Yes. In Exhibit 6 you do find judicial candidates who
21 ||have changed parties. In 1978 for example the Democratic
22 [candidate in the 265th Court, Joe Brown, was defeated. In
23 [|1988 he is a Republican and he runs for the 925th Court and
24 ||he wins. Additionally in 1980 Fred Harless. who was one of
25 llthe most senior Democratic Judges, is defeated by John
J TE aT po BT Ty 8 SA Mem ie T= TAN sarc vr MIRE 2 07, IES ev I REET ETS OT RYE SY SE eR
24
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Champagne - Direct - Godbey 4-104
Marshall, the Republican challenger, for the 14th Court.
Interestingly the next election year. 1982, he changes
parties, runs for the 116th Court and wins.
CG. And what does 1t tell you. that a judicial candidate
can lose as a Democrat, change parties and win as a
Republican?
A. Well, 1t 1s again showing that it 1s a one party
system, it is showing that the key to winning is being
Fepublican.
GB. Overall, without belaboring the point, do Exhibits 4
through 8 in your judgement support your belief that the
Dallas County courthouse shifted from predominantly
Democratic to predominantly Republican?
RA. Yes.
a. If you would, please, could you turn to Exhibit 9 for
me"? What does the first page of Exhibit 9 i1llustrate?
A. The first page of Exhibit 9 lists the judicial
elections at District Court ievel in Dallas County with
Black candidates. going from 1980 through 1988.
8. And does that include both Primary and General
Elections?
tA. Yes, it does.
@. Counting both FPrimary and General Elections, how many
contested elections for District Court have there been since
1980 in which there was a Black candidate?
EE Ee AT FY I Ce SET PX
CAFR Sa BNE or
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Champagne — Direct - Godbey 4-105
A. There have been nine.
G. Of those nine elections how many of the elections did a
Black candidate win?
A. Counting the Primaries and General Elections?
AR. Four.
a. In the General Elections. how many of the Democratic
Black judicial candidates won”
A. None.
a. In the General Elections how many of the Republican
Black judicial candidates won?
A. Both of them.
8. Just for the record, in which party were the two
Frimaries?
AR. The two Frimaries were in the Republican parties.
8. And in both of those Primaries did the minority
candidate win?
A. Yes.
@. Based on the tabular results that are shown in Exhibit
9, do you discern any pattern as to whether or not the race
of the judicial candidate has any impact on that candidate's
ability to win?
A. No. There 1s not such a pattern. The average vote for
Democratic judicial candidates in general pretty much
corresponds to the percentage of votes for Black Democratic
24
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Champagne — Direct - Godbey 4-106
judicial candidates.
GC. Refore leaving the first page Exhibit 2, from the
results exhibited there do you discern any pattern as to
whether the partisan affiliation of a judicial candidate in
Gallas County has an impact on that candidate's electoral
success”?
A. Republicans win, Democrats lose.
GQ. If you would, please, sir, would you turn to the second
page of Exhibit 9 and explain to the Court what that shows?
A. The second page of Exhibit 9 is the graph showing
voting for Black Democratic judicial candidates. And it
shows the correspondence of voting for Black Democratic
Judicial candidates to be about the same as for all
Democratic judicial candidates. With the top of the ticket
Democratic candidate, with the exception of 1982, tending to
be substantially less, the top of the ticket vote being
substantially less than the vote for the judicial
candidates.
G8. Other than 19827
A. Other than 1982.
‘G&G. Do you recall who the top of the Democratic ticket was
in 1982 was?
A. Lloyd Bentsen.
a. If the race of a judicial candidate had an impact on
that candidate's electoral success, would you expect to see
24
25
EY Er TT SRE RYE TIT
Champagne - Direct - Godbey 4-107
the results that are shown in the second page of Exhibit 27
A. No, I would not. I would expect there to be some
significant difference in the voting for Democratic judicial
candidates in general compared to Black judicial candidates.
tt. Do vou draw any conclusions from the fact that cther
than in 1982 both Elack and all Democratic judicial
candidates tend to do somewhat better than the top of the
Democratic judicial ticket in Dallas County?
A. Yes. I think actually the top of the ticket is, the
top of the Democratic ticket is a drag on the Democratic
candidates. Frobably., probably reducing the vote that they
are getting. reducing the proportion of votes they are
getting.
@. Just for clarity. in 1988 the dot on the graph for
Black Democratic judicial candidates appears to be right on
top of the dot for average Democratic judicial candidates.
Would you explain to the Court why that is?
A. Yes. There is only one judicial candidate in 1988, and
that judicial candidate is a Black judicial candidate.
@. He also constitutes the average?
fA. Yes, he is the average.
BG. Does that fact impact in your conclusions you have
expressed based on that chart?
A. No.
@. For the record. would you identify the last page of
24
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Champagne — Direct - Godbey 4-108
Exhibit 9 for the Court, please?
A. The last page of the exhibit simply shows voting for
Black Democratic judicial candidates by year and there also
percentages for the average Democratic judicial candidate
and then the percentages for the top of the ticket.
GG. And 1s that the numeric information in tabular form
that is the basis for the chart that is the second page of
Exhibit 97
A. Yes.
a. In general. based on Exhibit 9, do you have any opinion
as to whether or not campaigns for District Courts in Dallas
County are characterized by racially polarized voting?
A. My opinion is that they are not, that they are
characterized-by strong political partisanship.
@. Just for the Court's information, I don't know that we
need to particularly discuss it, but Exhibit 10 contains
some of the official election returns that form the
underlying data that was shown on Exhibit 9.
Dr. Champagne, in the course of your education and
work as a political scientist have you had occasion to
become familiar with the use of statistics in the social
sciences?
A. Yes.
G. Do you consider yourself to be an expert statistician?
A. No, 1 do not.
24
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Champagne — Direct - Godbey 4-109
G@. Do you believe that you have a working knowledge of
statistics sufficient for the use you make of them in social
sciences”?
A. Yes. Well, let me clarify that. There would be some
statistics in the social sciences that 1 do not work with
that I would not be familiar with. But the statistics that
I work with I think I have a familiarity with.
GG. All right. If vou would. please, sir, would you turn
to Exhibit 11 and explain to the Court what the first two
pages of Exhibit 11 are?
ff. The first two pages of Exhibit 11 are part of a
questionnaire that was used for telephone survey of citizen
awareness of public officials and Judges in Dallas County.
©. And were you involved in the preparation of that
survey?
A. Yes, 1 was.
8. Do you recall approximately when the survey was done?
A. The actual running of the survey was between June 3rd
and June 10th of this year.
GG. Approximately how many responses were obtained in the
survey?
A. 1.000.
G. Do you know how that number was determined?
A. Yes. Basically the idea was to get a far larger sample
than one really needed, to sort of overdo it so to speak.
TER Rm rr ar Erp
Champagne — Direct - Godbey 4-110
And this way with 1,000 people in the sample there was a
feeling that you wouldn't have to worry about over sampling
any particular minority group. You could just do a straight
random sample.
8. What do you mean by a straight random sample?
A. Well, you could just do a random sample without doing
another sampling for a particular minority group. It would
be enough to just pull one big huge sample.
GG. Do you know how the people who are contacted for this
sample were selected?
A. Yes.
G@. They are registered voters. What happened is Hale
Telemarketing and Associates was the organization that did
this, they had a computer generated random number system and
so they took the registered voting list, applied the random
number system to it to create their own list, and then they
compiled that list into groups of ten respondents. And then
calls were made to each of those groups of ten respondents,
so that vou, you tried to complete a call for each group of
ten respondents.
G. Were calls made at any particular time of day”?
+A. Well, they were made both day and night and on
Saturday. Calls were not made on Sunday.
G. Do vou know why the calls were made at varying
and different days of the week?
CRT SRST TOSI CS TE
Champagne - Direct - Godbey 4-111
A. The idea was to make sure that you could get people who
might be working different hours of the day for example.
Gl. Are you aware of measures of accuracy that are used in
connection with statistics and surveys”?
G. I= there any measure of accuracy that is associated
with the results of surveys?
RA. Yes. The standard era is plus or minus 3 percent.
a. If you would, please, sir, explain what that means.
A. If there is a response here that is let's say 90
percent, that means you can, you can assume that that
response reflects the population that you are surveying
between 47 percent and 53 percent. So that is the plus or
minus 3 percent.
a. If you actually, instead of a survey did an exhaustive
questioning of the entire registered voters in Dallas
County? |
A. That's right.
GQ. The results would likely turn out between 47 and 53 if
the survey showed 3507
A. That's right.
GG. Based on your knowledge of the social sciences and your
awareness of the methodology that was used in this survey,
was this survey performed in a manner that would cause it to
be considered reliable by experts in the social sciences?
EAR he) St AE
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Champagne — Direct - Godbey 4-112
A. Yes, with one clarification. 1It is the case that
people, when they are asked whether they have voted in an
election, people tend to fib. And so you would expect a
much higher. "1 have voted. yes" response than is out there
in the real world. In fact, if you don't get an inflated
response of. "I have voted”. something must be wrong with
the survey. This did get an inflated response of, "I have
voted”. More people are saying they have voted than are
likely to have voted.
G. Does that fact cause you to have any lack of confidence
in the results of the survey?
A. No. It is just that you expect such, such fibbing on
questions that people feel embarrassed about like whether or
not they voted. —
GG. You may have mentioned this already, but what kind of
information were you trying to elicit with this survey?
A. We were trying to basically elicit information about
recognition of names, including names of some Dallas County
District Court Judges. recognition of the office they hold,
recognition of their race, trying to get some sense of voter
awareness of those people.
+3. You mentioned Telemarketing and Associates. What was
their involvement in this survey?
A. They are the ones who actually did the telephone calls
and did the random number generation of the list.
Champagne — Direct - Godbey 4-113
% 1 @. And in the course of their mechanically performing this
2 |lsurvey did they make use of documents such as the first two
3 ||pages of Exhibit 117
4 A. Yes. The first pages of Exhibit 11 are basically what
5llthe, what the people making the telephone calls would use in
6 ||making the telephone calls. They would essentially be
7 ||lreading from those two pages.
8 a. If you could turn to the second page of Exhibit 11 for
9g ||lme, please, sir. What generally is the subject of item 47
10 A. You are asking recognition of names, offices and race
11 ||lof particular public officials.
12 Q@. And I gather the list of names along the left under
13 |litem 4 are the public officials that were ingliired of?
14 A. Yes.
15 8. Can you tell me how those names were selected. please,
16 ||sir?
17 A. Yes. I met with Greg Tealman, who is a professor,
18 Smsintant professor in the School of Social Sciences, and
19 ||who has specialized expertise in public opinion and we
«20 ||discussed what names we should put in the survey. We wanted
21 ||some sort of yardstick names. because we felt it was
22 important if people didn't know the name of some very well
23 ||known person there would be a problem with the survey. One
24 lof those yardstick names was Lloyd Hentsen who we felt
o5 ||people would be very aware of. We also wanted the name of
’
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Champagne - Direct - Godbey 4-114
someone who 1s not a Judge as a kind of rough yardstick of
awareness. And so we chose Annette Strauss, the Mavor of
Dallas. We also wanted to have a couple of Hispanic Judges.
and we thought it would be nice as well to have a vardstick
that was a higher Court. So we chose Raoul Gonzalez as our
Hispanic Judge on a higher Court. The other Judges are
Judges who are Butlins County District Court Judges. Quite
frankly I was very curious about Ron Chapman. I had heard
about the disc jockey stories for quite some time, and so I
wanted some sense of whether that was accurate. And so 1
more or less insisted on Ron Chapman being included. Ron
Chapman is alsc a White Judge. As 1 said, we wanted an
Hispanic Judge, and so on the list we included Adolph
Canales. We also wanted Black Judges and so we included
Jesse Oliver and Larry Baraka. And we wanted White Judges,
particularly one who had run recently, so we included Joe E.
Brown, also included Jack Hampton. There was another reason
for including Larry Baraka and Jack Hampton, and that was
we wanted to be sure that we could identify people who we
thought were the most visible District Court Judges in
Dallas County. Larry Baraka had had a great deal of
publicity over a case that he had been involved in, the
Randall Adams case, particularly because there had been a
movie made about that case. And so there was some publicity
surrounding the movie and some considerable publicity
Champagne - Direct - Godbey 4-115
1 l|involved for Larry Baraka. So he seemed to be an extremely
2 ||lvisible Judge at that point in time. Another Judge that we
3|lfelt was an extremely visible Judge as that point in time
4 ||lwas Jack Hampton who had made some comments in reference to
5 ||some murder victimes, and had made statements to the press
6 [and so on which had created a great deal of controversy. not
7 lonly in Dallas County but state wide and to a lesser extent
8lilI think even nation wide. And so we felt that if we chose
9 ||Jack Hampton we would be choosing the most visible Judge
10 ||imaginable. 5c those were our reasons. So those were our
11 ||reasons for our choices.
12 GG. What were you trying to find out in connection with
13 ||[guestion &7
14 A. Bumstion & was simply asking voters what they thought’
15 ||was important in making a decision on who to vote for, what
16 ||was prompting them to vote for a particular judicial
17 ||candidate.
18 a. If you would, please, sir, back again before we leave
19 ||guestion 4, under the questions that were asked, could you
20 ||read to the Court the second question that was asked?
21 A. Under number 47
22 G8. Yes. sir.
23 A. Which elected official, 1f any, —— which elected
24 |loffice, if any, did this person hold or run for in 19887
25 8G. And do you recall what the most frequent response given
RTI SE oy ARERR Re TN TT Ee NT Awe SY, Ay Nene NTL IR TR
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Champagne — Direct - Godbey 4-116
to that question was in connection with Judge Chapman?
A. Disc jockey.
a. If you would. please, sir ——
THE COURT: Let me ask you, question & is honest
and then 2 is do right for city and state.
THE COURT: Do you perceive from that that at
least in Dallas County the voters there perceive Republican
are apt to be more honest?
A. No, sir. This was a questionnaire that ie actually the
response from one person who was polled. And so that one
person who was polled said that factors that were important
for me in voting for Judges was 1 want someone honest and 1
want someone who would do right for the city and state.
BY MR. GODREY:
Go. If you could, without going E hres on a page by page
basis, which I assume the Court would prefer me not do,
could you describe generally what is in the balance of
Exhibit 7, please, sir”?
A. The balance is simply computer results that list the
responses to the questionnaire, frequencies, percentages,
that sort of thing.
GG. And I notice in the last half of Exhibit 11 the
printouts appear to be a little more complicated. Could you
explain what is going on with these printouts generally,
PN STR TTA LS
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Champagne -— Direct — Godbey 4-117
please, sir?
A. The last half of Exhibit 11 would be where the
respondents, people who were polled, are being. broken down
in terms of ethnicity. So here we are getting responses
from Black registered voters, Hispanic registered voters and
White registered voters.
@. How did you all know this?
A. We asked them in the questionnaire.
t. 1 am not sure that you mentioned this, probably did,
but just for the sake of the record, where were these voters
registered?
A. The voters were registered in Dallas County.
G. If you would, please, sir, could you turn to Exhibit 12
for me. Could you explain to the Court first, please, just
the format of that exhibit?
A. This is a bar graph of name recognition of these public
officials in the poll where it is listing the percentage of
the registered voters responding to the poll who recognized
the names of Lloyd Bentsen, Annette Strauss, Raoul Gonzalez,
Larry Baraka and so on. And it is broken down not only in
terms of the total number of respondents, but it is also
broken down in terms of Black respondents, Hispanic
respondents and White respondents.
@. What conclusion, if any, do you draw from Exhibit 127
A. Well, from Exhibit 12 it is clear that people like
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Champagne — Direct - Godbey 4-118
Lloyd Bentsen and Annette Strauss have very high name
recognition. Justice Gonzalez has name recognition that is
in the 40 percent and do on. Generally speaking though, for
District Court Judges name recognition, at least among the
total respondents, tends to be relatively low. Where total
respondents are recognizing the names of people the ranc.
goes from 12 percent on up to 41.7 percent, with the
exception of Ron Chapman. And again, Ron Chapman just gets
incredible name recognition, where 85 percent of the total
respondents are recognizing his name.
@. Do you observe on Exhibit 12 that Hispanic voters
tended to exhibit greater name recognition of Justice
Gonzalez and Judge Canales?
A. Yes. Hispanic voters are identifying Justice Gonzalez,
an Hispanic more than other voters are. That is also true
with Judge Canales.
a. I am sorry, I believe you said identifying Justice
Gonzalez as Hispanic, and just for clarity —
A. I am sorry. recognizing Justice Gonzalez’ name.
BG. And similarly Black voters are recognizing Judge Oliver
higher: is that correct?
tA. Yes.
@. With regard to the level of Judge Oliver's name
recognition, do you know of any factors that might have
affected the high name recognition in the Black community
24
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Champagne — Direct - Godbey 4-119
for Judge Oliver?
A. Well, Judge Oliver had been a State Representative and
had been a candidate for State Senator. And so his previous
candidacies may have contributed to name recognition.
Gt. Do vou know generally from what part of town Judge
Oliver was State Representative?
A. Oak Cliff.
@. Do vou know generally what the ethnic composition is of
that area?
A. Generally ERlack.
@. Just briefly, could you identify the second page of
Exhibit 127
A. These are simply the peroentaoes of voters who are
recognizing the names of these public officials. Seo this
would be the basis for the bar graph.
@. Okav. If you would, please, sir, turn to Exhibit 13.
Can you describe generally what Exhibit 13 discloses?
A. Exhibit 13 is a bar graph on recognition of the office
that is held by these public officials, or that these public
officials ran for in 1988. And it is broken down again in
terms of total and Black registered voters, Hispanic
registered voters and White registered voters.
8. What generally does Exhibit 13, what, if anything. does
Exhibit 15 cause you to conclude with regard to voter
awareness of District Judges?
Champagne - Direct - Godbey 4-120"
RS 1 A. There is just very little awareness of the office that
2 ||these people hold. We coded as correct office recognition.
3||If someone said Judge or Court Judge, they didn’t have to
4 ||say District Judge. But nevertheless recognition of the
5 |leffice is very very low. Greater visibility for Judge
6 ||Barracka and Judge Hampton here, but still very low
7 lrecognition of the office.
8 @. Comparing the level of name recognition in Exhibit 12
g ||te the level of correct office recognition in Exhibit 13,
10 ||do vou observe any contrast between for example Justice
11 ||Bonzalez, Judge Canales and Judge Oliver?
12 A. Basically registered voters are recognizing the name.
13 They are picking up on the name but they don't know what
14 || these people do.
15 GB. Similarly on Exhibit 13, does the second page represent
16 ||the numeric basis for the data shown on the chart on the
17 || first page?
18 Af. Yes, it does.
19 a. If you would. please, sir. could you turn to Exhibit 14
20 ||land explain to the Court what that indicates?
21 A. This is part of the survey where voters are asked if
22 they can identify the race of the public official. And this
23 [lagain is broken down in terms of total, Black voters,
24 ||Hispanic voters, White voters.
25 G. Other than Judge Chapman, do you draw any opinions from
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Champagne — Direct - Godbey 4-121
Exhibit 14 as to whether or not registered voters in Dallas
County are aware of the race or ethnic background of
Judicial candidates?
A. In general recognition of race here is quite low.
a. fgain observing for example with Judge Rarracka, Judge
Canales and Judge Oliver, that voters within their own
ethnic background show somewhat higher recognition of their
race?
A. Yee, that is true.
G. Does that affect your conclusions any?
A. Even where voters of the race of the Judge are
recognizing that Judge’'s race, recognition of race tends to
fall well under 50 percent.
G. Do the three charts we have just discussed, Exhibits
2: 13 and 14, have any impact on your opinion regarding the
presence or absence of racially polarized voting in Dallas
County judicial elections?
A. I think it suggests the absence of racially polarized
voting, since the people do not know the race of the
judicial candidates.
8. Could vou explain the connection there?
A. Hell, I think it would be very difficult to have
racially polarized voting if one did not know the race of
the candidate one was voting for.
G. Do Exhibits 12, 13 and 14 cause you to draw any overall
Champagne - Direct - Godbey 4-1 bh hJ
= 1 ||lopinion as to the voter awareness of District Court
2 ||lelections?
3 A. There tends to be considerable lack of awareness of
4 |IDistrict Court Judges and their offices. Something that is
5 llconsistent with sort of a conventional wisdom literature and
6 |lthe limited empirical work that has been done on voter
7 lawareness, it is just not a high visibility office.
% a. Are you aware of other empirical studies done in the
9 [|political sciences or social sciences dealing with voter
10 |lawareness of judicial elections?
11 A. Yes. There are two studies in fact that have been done
12 || for Texas other than this study. One was a study published
13 ||in Social Science Quarterly. That was a study in Lubbock.
14 || Texas, in 1976. And-there only & percent of the people who
15 ||[were coming out of the polling place could identify the name
i6 ||lof a District Court Judge. There was also Texas lawyer
17 ||survey that was done in 1986. 1 believe, in Dallas and
18 ||[Harris counties which also tended to show low voter
19 ||awareness.
20 @. Given —— well. do these other empirical studies
21 ||lcorroborate the opinions that you reached drawn from the
22 {survey shown in these exhibits?
23 A. Yes.
24 @. Could you turn. please, briefly, to Exhibit 135 and
25 |lexplain to the Court what is shown there?
JN ER NEG yO Pe i TT, A TI TN 3 Fa Ta STS ramm 7T Mp paren IE JN, mean
Champagne — Direct - Godbey 4-123
pe 1 A. Exhibit 15 simply lists those reasons on the
2 |guestionnaire that are offered to people as to why they vote
3 ||for a particular judicial candidate. What interests me
4 ||labout this is that people. people give reasons that are very
5|lsimilar to the typical campaign arguments of judicial
6 candidates. If you look at typical campaign arguments, it
7 lis I am experienced, 1 am fair, I have integrity, 1 am
8 ||honest and so forth. And so people are saying these are
0 ||really the reasons 1 am using to cast my ballot.
10 @. What do you find interesting about that in light of the
11 [|lother results in the survey?
12 A. Well, one thing I think that is interesting about it is
13 ||pecple are not giving, are not giving racial reasons for
14 ||their vote. They are giving sort of a typical campaign
15 ||statement of Judges as reasons for their vote.
16 8. Do you find anything interesting as to whether the
17 ||voters behavior in voting for Judges is consistent with what
18 || they express as the reasons for voting for Judges?
19 A. Well, it is not clear. But what they stand for, of
20 |lcourse, might mean Democratic party or Republican party. So
21 ||that may be identifying a political party. But it seems to
22 ||lme that basically voters are using sort of standard measures
23 ||of qualifications here, or claiming they are using standard
24 ||measures of qualifications and yet they are voting political
25 ||party preference.
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Champagne -— Direct - Godbey 4-124
@. What about the results of the survey would lead you to
believe they are voting political party preference?
A. The results of this survey do not say that a person is
voting political party preference. But that would be the
result I think of what vou are getting from the other
tables.
Gg. Okay. If vou would, please, sir. could you turn to
Exhibit 167
THE COURT: Morality is not a big issue with
Judges, 1 take it, at least in Dallas County?
A. It seems that way.
THE COURT: Low on the poll, right? I don't know
what that says about Dallas Judges.
MR. GODBEY: I am sure it means they are so moral
the voters don't perceive that as even an issue.
THE COURT: 1 am sure that goes not only for the
State bench for the Federal bench as well.
BY MR. BDODBEY:
@. Professor Champagne, have you had an opportunity before
to review Exhibit 167
A. Yes, 1 have.
+3. Could you explain to Judge Bunton the kind of
information that is portrayed in this second through fourth
column of Exhibit 167
A. This is information on the Rlack. Hispanic and other
TE TL I Ry WIA A Se ary i 0 eR A A A ENT Sa * Bmp 3 Ee me rr oT
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Champagne — Direct - Godbey 412%
composition of precincts in Dallas County.
8. And do you know, sir, the source of that information?
A. The source of the information is information gathered
by Dr. Dan Wiser, who is an expert witness for the
plaintiffs.
Gi. Have you personally done any investigation into the
accuracy of that information?
A. No. I have not.
BB. You are just accepting Dr. Wiser’'s figure?
A. Yes.
@. Figures, 1 should say. What information is shown in
the remaining columns to the right of that in Exhibit 167
A. This is information from the 88 General Election on
total votes, Republican votes, straight Republican votes,
straight Democratic votes and then percentages. straight
Democratic, straight Republican.
@. So for any given precinct this would allow you to
determine the percentage of votes in that precinct that was
straight ticket Republican or straight ticket Democratic?
A. Yes. That is true.
@. Do vou know the source of underlying data contained in
those columns of Exhibit 1467
A. The elections office, Dallas County Elections Office.
G. Exhibit 16 is broken up basically into two halves.
Unfortunately they are not page numbered. You can identify
PTI 2 PRETTY AT TA Jan NT eres SY CTY A RR ST WET EIN RAO ge ar Te nn et mE re pes
PP NT TT REET | NTT
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Champagne — Direct - Godbey 4-126
the first half because the precinct numbers are in
increasing order. If you would, please. sir, would you turn
to the second half. There is a caption at the top, Straight
Ticket Voting, Homogeneous Precinct Analysis.
A. I have found it.
G. Is the source of the data in this half of Exhibit 16
the same as in the first half?
A. Yes, it is.
@. What difference is there in the arrangement of the data
in the second half of Exhibit 16 from the first half?
A. The data is arranged so that you start out with
precincts with very low Rlack total age population and you
move to precincts with higher Black total age population.
GG. Are vou familiar with the concept in the social
sciences in analyzing election returns of the Homogeneous
Precinct Analysis?
A. Yes.
GQ. Is that a relatively well understood concept?
A. Yes, I think so.
MR. GODBEY: Your Honor, unless the Court cares to
hear an explanation of that from another professor, I will
emit that.
THE COURT: I don't.
BY MR. GODBEY:
GB. Before getting into any kind of statistical analysis of
TATE TT STRECC RL TITER
Champagne - Direct - Godbey B--327
pa 1 |[|that, just eye balling the first couple of pages where there
2 ||is relatively low Black total population, did you generally
3 ||ldraw any conclusions as to the volume of straight ticket
4 ||[Fepublican voting and straight ticket Democratic voting”?
5 A. In the low Black population precincts, just eve balling
6||l1t. there appears to be considerably more straight ticket
7 |Republican voting than straight ticket Democratic voting.
8 ||[Democratic voting tends to be fairly low there.
el @. And flipping to the next to the last and the last page
10 {lof Exhibit 16, again without doing any particular
11 ||statistical analysis. what do you observe in terms of
12 ||loverall pattern in the precincts that have a high percentage
13 {lof Black total age population with regard to straight ticket
14 ||Republican voting and straight ticket Democratic voting?
15 A. Straight ticket Republican voting is just very very low
16 lon these last two pages, and straight ticket Democratic
17 ||voting really moves up into some high numbers. 1 am seeing
18 ||some F0 percent and even some a little bit better than 20
19 ||percent on straight ticket Democratic voting there.
20 @. At the very end of Exhibit 16 there is a small summary.
21 ||Could you explain what that summary illustrates, please,
22 llsir?
23 A. For precincts that are less than 10 percent Black. the
24 ||laverage straight Democratic voting for those precincts is
25 ||labout 17 percent, a little bit more than 17 percent. For
BR HA ST EN TY IT INI TE MI ema <I TD en TL ne a rtm SP - a en - a= > ST
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Champagne — Direct - Godbey 4-128
precincts that are greater than 90 percent Black the average
straight ticket Democratic voting is a little bit better
than 87 percent.
a. Incidentally. are you acquainted with the concept of
weighting in an election analysis?
A. ‘Yes.
i. Just Tor the record. do you know if these results are
weighted or unweighted?
A. These are unweighted.
Gi. Is the information revealed by the second half of
Exhibit 16 consistent with your conclusion regarding
partisan polarized voting in Dallas County?
A. Yes.
@. And how is it consistent with that, please, sir?
A. Well, there is a high degree of partisan voting in
Dallas County, particularly when we are talking about the
precincts that are heavily Rlack precincts.
a. In view of the high degree of partisan straight ticket
Democratic voting among high Black population precincts, do
you have any opinion as to whether or not it is meaningful
to view any individual Democratic candidate as the candidate
of choice of Elack voters?
Aa. I think it is meaningful to say it is the party of
choice, but candidate of choice is not really an applicable
concept.
TT Err rr Ae
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Champagne — Direct - Godbey 4-129
G. Specifically in the context of judicial candidates and
associating both this data regarding straight ticket voting
and data shown from the survey with regard to voter
awareness of judicial candidates, do you have the same
opinion with regard to whether it 1s meaningful to consider
any individual Democratic judicial candidate to be the
candidate of choice of Rlack voters?
Af. Well, there is low awareness of race of candidates and
there is high partisan voting. So I would think that that
would show that there is partisan voting that is taking
place here. Voting on the basis of political party as
opposed to voting on the basis of race.
@. And what does that say toc you about whether a
particular candidate is the candidate of choice of the Black
voters in a judicial race?
A. A particular candidate wouldn't be the candidate of
choice.
MR. GODBEY: Just for the record. Your Honor,
Exhibit 17 are the official Dallas County election returns
that form the basis for the tabular data in Exhibit 16.
BY MR. GODBREY:
@. Are you aware, Professor Champagne, of the relative
number of minority Judges on the Dallas County bench as
compared to the relative percentages of the minorities in
the population at large in Dallas County?
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Champagne — Direct - Godbey 4-130
A. Yes.
GQ. Based on your opinions regarding partisan polarized and
racially polarized voting, do you have any opinion as to
whether the low number of minority Judges on the Dallas
County bench is or is not caused by racially polarized
voting?
A. I would say it is not caused by racially polarized
voting.
@. Do you have any opinions as to what does cause that
relative disparity between minority Judges and minority
populations at large?
A. The very small number, a very small percentage of
Dallas County lawyers who are Black.
a. If you would, please, sir. could you turn to Exhibit 18
and describe for the Court what that Exhibit illustrates?
A. This is simply illustrating in a graphical form the
population, the 1980 population of Dallas County, showing a
19.7 percent Black population, 15.3 Hispanic population, 65
percent White population. For Dallas County lawyers, based
on information provided by the State Bar, 2.2 percent of
Dallas County lawyers are Black and 1.1 percent of those
Ballas County lawyers are Hispanic. For Dallas County
Judges, 5.56 percent of them are Black and 2.78 percent are
Hispanic.
G. Are you aware of any academic research that supports
A TT TD TREN 5 SIFT
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Champagne — Direct - Godbey 4-131
your view of the causal relationship between the percentage
of minority lawyers in the area and the percentage of
minority Judges in this same jurisdiction?
A. Yes. There is a dissertation published, or a
dissertation written by Nicholas Alosey. an article from
which was published in the Social Science Quarterly, which
is an academic publication. He did a study of 47 states and
looked at the percentage of Black lawyers, relating it to
the percentage of Black Judges. What he found was the
greater percentage of Black lawyers in the state the greater
percentage of Black Judges in the state. In fact. he found
almost a one to one correspondence. That is, if you have
got a 1 percent, if you are looking at these 47 states, if
vou have got a 1 percent increase in Black lawyers it led to
about a 1 percent increase in Black Judges.
8. You mentioned that part of that dissertation has been
published in an academic publication or scholarly
publication. What does that have to do with your perception
of the validity of the results?
A. Well, a publication like Social Science Quarterly is
peer reviewed. which means that the article is submitted to
an editor who sends out the article to several faculty
members for review, comments, criticisms, rejection,
whatever. And so the article has been reviewed by experts
in the field before it was published.
24
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Ph
fom
Champagne - Direct - Godbey 4-132
THE COURT: I am not smiling at you. doctor, but
you ought to try a Title 7 case that has to do with tenure
sometimes at some of our universities, and you will find out
more about peer review than you ever want to hear about.
BY MR. BODBEY:
Gi. Hopefully you will be spared that. Professor Champagne.
You have already passed that hurdle. Did you have any
awareness of Dr. Alosey’'s dissertation prior to its
publication?
A. Yes, I did. I was his dissertation advisor and on his
dissertation committee.
QB. So you were quite familiar with his work?
A. Yes. :
@. In your judgment is it a work of the level of
reliability and thoroughness that would generally be relied
on by social scientists?
A. Yes.
8. Did Dr. Alosey consider other alternative possible
explanatory hypotheses for the level of minority Judges
within a given jurisdiction?
A. Yes, he did.
+@. Of the various hypotheses he explored, what was the
best indicator?
A. Percentage of minority lawyers, percentage of Black
lawyers?
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Champagne —- Direct - Godbey f§-133
G8. So you weren't just giving us one of his results?
A. That was the result that he identifies most
significant, most important result.
BG. With regard to the underlying data behind Exhibit 18,
what efforts did you make to obtain the information that is
shown in that middle pie chart showing the ethnic
composition of Dallas County lawyers?
A. There is a membership survey. this is based on a
membership survey. There was a membership survey done by
the State Bar which provides this. In addition there was a
committee of the State Bar called the peer survey, a
committee of State Bar ran a peer survey which asked for the
ethnicity of the Yaiyars to whom the questionnaire was sent.
That showed a smaller percentage of Dallas County lawyers
who were Black. In addition, the Dallas Bar Association ran
two surveys, one in 1983 and one very recently. And those
surveys also showed a smaller percentage of the Dallas
County Bar that was Black. 1 think one was .8 percent and
one was 1 percent in those two Dallas Rar surveys.
8. Were the four surveys what you consider generally
consistent one with another?
A. Generally, in the sense that they were all showing very
low percentages.
G8. They weren't identical however; is that correct?
A. No, they were not identical.
re 2 sod wd Fa ET Pi ro sete em
wi le a ER
Champagne - Direct - Godbey 4-134
1 QQ. Does the fact that they were not identical cause you to
2 ||lose confidence in the results they showed?
3 A. 1 cannot say that the Dallas County Bar is exactly 2.2
4 |lpercent Elack. What I can say is that there are four
5 ||surveys out there that are showing very very low percentages
6 ||lof Black lawyers. ranging from .B percent to Z.2 percent.
71180 I think they are all pointing in the direction of being
8 ||very low percentage of Black lawyers in Dallas County.
9 a. I= the results shown in Exhibit 18 of the percentage of
10 ||minority lawyers in Dallas. compared to the percentage of
11 ||the minority Judges in Dallas, consistent with what you
12 {|[would expect, given Dr. Alosey’'s work?
13 Ae. Roughly so, ves.
14 MR. GODBEY: Incidentally, Your Honor, for the
15 ||record, under Exhibit 19 there are the raw information that
16 ||Dr. Champagne relied on, the results of the various surveys
17 ||lare captured in there.
18 ||BY MR. GODEEY:
19 @. Professor Champagne, there has been some testimony
20 |learlier in the case that there may be an excess of 300, 1
21 |lguess it was in terms of an excess of 300 members of the
22 Id. L. Turner Legal Society.
23 A. Yes.
24 Q. Are you aware of what the J. L. Turner Legal Society
25 (lis?
¢ -
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Champagne — Direct - Godbey 4-135
A. In general, ves.
GQ. What generally is the membership of that group?
A. In general I think it is an organization of Black
lawyers.
1. Setting aside J. L. Turner Legal Society. do you
believe that it 1s likely that there are in excess of 300
minority lawyers in Dallas County? 1 am sorry. Rlack.
A. It would surprise me if there are 300 practicing
lawyers in Dallas County who are Black. yes. And my reason
for that is that the 1980 census showed that for the entire
State of Texas there were only 596 Black lawyers. So that
gives us a very significant increment in a hurry, I would
think.
8. Assume with me hypothetically that there are in fact
somewhat in excess of 300 Hlack lawyers in Dallas County.
Does that affect the conclusions that you have reached based
on the data shown in Exhibit 18A7
A. Basically if there are 300 Black lawyers in Dallas
County, I think we would be talking still around 3, 3 and a
half percent Black lawyers. So it does not substantially
change the results, no.
a. If that were in fact correct, would that make the
results shown in Exhibit 18A more or less consistent with
Dr. Alosey’'s research?
A. Actually if there were 300 Black lawyers in Dallas
24
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Champagne — Direct - Godbey 4-136
County it would be more consistent with Alosey’'s research in
the sense that there would be a closer one to one
correspondence between percentage of lawyers, percentage of
Black lawyers and percentage of Rlack Judges.
@. Professor Champagne. have you investigated into the
numbers of minority law students over time?
A. Yes, I have.
@. And have you observed any trends in minority enrollment
in law schools over time?
A. The general trend would be an increase.
BG. Rased on that and based on Dr. Alosey’'s research, what
impact would you expect to see on the percentage of minority
Judges as those law students aradusie, take the Rar, enter
the Bar, obtain experience?
A. Well, as you get an increasing number of Hlack lawyers
vou should get an increasing number of Black Judges.
BG. As a political scientist and as a person with at least
research interest in the judiciary, do you have any personal
feelings as to whether it would be desirable to have an
increase in minority Judges in Dallas County?
A. Yes, I think it would be desirable.
18. Why is that?
A. I think that the openness of a political system is
essentially measured by the opening of the system to
minorities, to positions of influence in a community or in a
TR ETI, 3 NTS
24
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Champagne - Direct - Godbey 4-137
state or in a nation. So 1 would think it would be
desirable simply to provide us with a more open political
system.
G. Given your view that that is a desirable result. and
given vour research into the judicial selection process, do
you have any opinions as to what would be the most sound way
to reach that result?
A. I think some drastic intervention into, into the
recruitment of law schocl students would be most desirable
to try to increase the number of minority law school
students so you can get an increase in the number of
minority lawyers.
8. Understanding that you are speaking with that regard to
the law here, because you are not here as a lawyer or legal
expert, but as an academic, from the academic perspective
why ie that a more sound way to reach the desirable result
of minority Judges than something on the election end that
would perhaps promote more minority Judges?
A. Well, at least to an academic, people in the world with
a great deal of influence, a great deal of power, are
lawyers. And so 1f you want to create some sort of change
in the social system, you create that change by creating
more lawyers and the effect of that is to create more
Judges.
G0. Would increasing the number of lawyers in effect be
Champagne — Direct - Godbey 4-138
A 1 |jlattacking the problem at the source? |
2 A. Yes.
3 G. And would taking steps in the election process to
4 ||promote larger numbers of minority Judges be in effect
5||ltreating the symptoms rather than the disease?
6 A. 1 think so.
7 G. In the course of your research have you had occasion to
8 ||become familiar with the methods and policies underlying the
0 ||methode of judicial administration in Dallas County?
10 A. To an extent, ves.
1 GG. Are you aware of any historic factors influencing the
12 ||overall mode of judicial administration in Dallas County,
13 ||land I guess for that matter throughout the State of Texas?
14 A. The historic factors that I became aware of is simply
15 || that county Government has been. essentially since the days
16 [lof the Texas Revolution, has been the way that Governmental
17 ||services are primarily delivered to people of the State.
18 ||land that is particularly the case with judicial services.
19 ||Sc that a county Government really plays an essential role
20 lin the delivery of judicial and other Government services.
21 Od. In terms of the historic role of the county as the
22 llevel at which judicial services were provided, are you
23 ||laware of that as playing any part in the impudence in fact
24-||behind the Texas Revolution?
25 A. Well, actually there is research that indicates that
1
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Champagne — Direct -— Godbey 4-139
pi 1 lone. admittedly there is only one, of the reasons for the
2 ||Texas Revolution was the great distance that the people in
3||Terxas had to travel in order to obtain access to Government
4 ||Services such as judicial services. And one of the things
5|lthat was desired was basically services closer at home. And
6 [the way it ultimately resclved, of course, was you brought
7 those services closer to home through county Government.
8 THE COURT: For the record, 1 am not going to
g ||publish this in Coahuila. Sotelo, isn't that the capital of
10 || the State of Coahuila? 1 probably won't publish 1t down
11 ||there. That is where they have to go for services, isn’t
12 H#1+7
13 MR. GODBEY: No longer within your jurisdiction.
14 THE COURT: I don't know. I haven't tried.
15 || BY MR. GODBEY :
16 @. Mr. Champagne, are you aware of a system of judicial
17 ||lspecialization within the Dallas County courthouse?
18 A. Yes, 1 am.
19 @. What role does that play as a policy reason for the
20 ||system of judicial administration that presently exists in
21 ||Pallas County?
22 A. Well, with county-wide judicial selection there would
23 ||be no problem in terms of allocating specialized Judges,
24 ||because they are all county-wide. So county-wide selection
25 [lof Judges would resclve that allocation problem of
Sen Gh tater tat St Stab ea oe cotati Chess ol rp en pe FU rT rans Bec En te LT TTY FY
5 Th SERS a . : p ; ie ’
ETT MUSE STR TART SL SORT TUN
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Champagne - Direct - Godbey 4-140
specialized Judges across subdistrict systems.
GG. To be sure the record is clear, what kind of problems
are you talking about in terms of allocating specialized
Judges in Districts smaller than the county. let's say?
A. Well, if you have specialized Judges, 1 guess one
question that would come up is which subdistrict gets the
criminal Judge, which subdistrict gets the family Judge,
which subdistrict gets the civil Judge. Or if you have some
kind of double member system, still you have the allocation
problem of which subdistrict gets what.
@G. When you say it is an allocation problem, in what sense
is it a problem?
A. Well, the person in the district who gets a civil Judge
and a family Judge has no voice in the selection of an
criminal Judge, as an example.
G. They are in effect disenfranchised?
A. Yes.
8. Are you aware of any policies supporting the current
system that relate to accountability of Judges toc the
electorate?
A. Well, under the current system voters in Dallas County
vote for all of the Judges in Dallas County. With a
subdistrict system, a subdistrict, I am presuming, a
subdistrict would vote for a Judge whose jurisdiction was
the entire county.
Champagne — Direct - Godbey 4-141
G8. Why is that a problem with regard to accountability?
A. It is a problem in regard to accountability because
137th of the county is electing a Judge with jurisdiction
over the entire county.
@. Just mechanically. I guess, if you will, in an elective
judicial system, how is it that accountability in theory is
to operate”
A. I would say that when you are talking about elective
Judges and you are talking about accountability, you are
talking about something that is going to work imperfectly.
Accountability is a kind of sword over the heads of the
elected Judges. It may never fall. That elected Judge may
stay in office for a very very long time. But there is
always the possibility that if that Judge engages in some
kind of improper activity, for example, that sword will fall
and that Judge will be out of office. I think the idea of
judicial accountability is a Judge who acts improperly will
have the sword fall. In reality it doesn’t always work that
way, of course. And sometimes the sword falls on Judges
even though there is no impropriety.
a. In connection with the survey. you discussed your
opinion that this relatively low voter awareness in Dallas
County of Judges and judicial elections, is that consistent
with your views on accountability?
A. I think so, because if you look at Judge Hampton, you
24
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Champagne — Direct - Godbey © 4-142
are talking about a case involving improprieties or
allegations of improprieties, and there you get a Judge with
very high visibility. It is very possible for voters to
become aware of problems in the judiciary. Now, whether
that sword will fall, I can't say. But at least voters are
aware of some sort of problem within the judiciary, at least
in that particular case.
Gi. Why would that problem be accentuated by smaller than
county-wide Districts?
A. Why would?
GG. Why would the problem ——
A. The problem of voter awareness, you mean?
G. No. I am sorry. Why would the policy of
accountability that exists in the current county-wide system
be lessened in a system with a smaller than county
Districts?
A. Well, basically in smaller than county Districts the
people Who Sve being judged by the Judge are not all voting
for that Judge. Only a fraction of those people are voting
for this Judge. So there is a loss, there is a reduction in
accountability there. There is a reduction in the number of
people and the proportion of people who can make that sword
fall.
@. Are you aware ——
THE COURT: You are not trying to tell me that if
24
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Champagne -— Direct - Godbey 4-143
I were trying a case before somebody elected in a
geographical area less than a county, and I perceive that
the Judge that was elected from this little area had done me
wrong. there is absolutely no reason in the world why I
couldn't recruit somebody in that area to run against him?
A. You can recruit somebody in that area, yes.
THE COURT: You sure could. And 1 suspect it
would be done, because I know it has been done. Lawyers
that perceive that they have been wronged may not even live
in Dallas County and get somebody to run against somebody.
A. But voters who perceive that they have been wronged may
have much greater difficulty.
EY MR. SODBEY:
Q. I= this more of a concern on the level of voters than
on the level of litigants?
AR. Yes.
@. Just for clarity, you are not saying that under the
current system you have perfect accountability, are you?
A. Oh, not at all.
8. You are not saying under a subdistrict system you would
have no accountability?
A. No. Not at all.
a. Is 1t more a matter of degree?
A. Like a thermometer, like a scale. Yes, it is a matter
of degree.
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TET TY YN SURE > mC
Champagne - Direct — Godbey 4-144
Q. Are you aware of policies relating to the efficient
administration of the judiciary that supports the current
system of county-wide election of Judges?
A. To some degree. Yes.
8. What do these relate toc?
A. Relates to a central or a county-wide system for
selection of juries, central county-wide system for case.
management.
G. In terms of the efficiencies coming from county-wide
jury selection and county-wide case management. would there
be harm to these efficiencies if the county were carved up
into 18 or 18 and a half or 37 autonomous judicial
Districts with their own administrative pursuit and
machinery?
A. If they were autonomous with their own machinery. ves,
I think there would be considerable confusion that would
result.
a. If the county judicial administration remained the
same, other than the geographic area from which Judges were
elected, would those two factors be diminished?
A. I don't think so.
+8. Are you also aware of issues relating to the efficient
administration of justice on a county-wide basis that is
promoted in connection with adding of Judges?
A. Yes. I think one, one thing about adding Judges to a
24
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Champagne - Direct - Godbey 44-14%
county is you just add a Judge. Presumably if you have to
add Judges on a subdistrict level, there would have to be
reapportionment and if there was some frequent addition of
Judges there would have to be some sort of frequent
reapportionment.
GCG. Do you recall. incidentally, how many Judges there were
in Dallas County in 19777
A. Twenty-one. 1 believe.
8. Do vou recall how many there were in 19827
A. I don't recall by 1982.
G. You might refer to the second page of Exhibit 5.
A. By 1982 there were 36.
@. 1% within a five year period under some system of
smaller than county-wide elections of Judges you saw an
increase in excess of 50 percent of the number of Judges.
in your view would that cause practical problems?
A. I think there would be practical problems with
reapportionment. yes.
Q@. One witness has suggested as a possible remedy for
those problems that you could simply draw straws among the
existing judicial Districts and the winner gets the new
Court. Do you have any opinion as to whether or not that
would be a sound approach from your perspective as a
political scientist?
A. I think it would be a very arbitrary approach to
bone fd ba Na Ti STR Tes SEEN RAD Men A ol Eoin gl OA eM oe SIE i a a Soda Ray 2 RAR A Tr Xe aa : Fea . pe a
24
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TST TE ART ITER 5 —
Champagne - Direct - Godbey 4-144
allocate Judges to an area just according to randomness,
chance.
G. Why for a political scientist is an arbitrary approach
of allocating Judges undesirable?
A. I would think from almost any standpeint an arbitrary
approach would be undesirable. I think what you would get
is considerable dissatisfaction over the fact that one part
of the community might be electing more Judges than another
part of the community, and simply because a straw was pulled
that was the wrong straw.
@. It would be lacking in fairness?
Af. To say the least.
BB. Are you aware of any policies that support the current
system existing in Dallas County in connection with the risk
of parochialism among District Judges?
A. I think vou think of this notion of parochialism with
Judges as kind of a scale or thermometer. It is a aiter of
degree. Theoretically the larger the population you serve
the more insulated a Judge would be from special interest
group pressure, and the smaller the District the more, the
more endangered the Judge's impartiality might be by
special interest group pressure. 1 can't point to a
specific sized District that is just ideal, but I think
there is a kind of scale there of Districts that can be very
very parcchial versus District that tends to be rather
A ER RIOR Ts NTIS, TS LTA me i ee . ran
Champagne — Direct - Godbey {4-147
insulated from special interest group pressure.
@. Based on these five factors you mentioned, the historic
basis for county-wide judicial administration. the system of
specialization, judicial accountability to the electorate,
administrative efficiency and the risk of parochialism., do
vou have an opinion as to whether or not the policies
underlying the current structure of judicial selection in
Dallas County are or are not tenuous?
A. I would think they are tenuous.
8. Are you generally aware, Professor Champagne, of forms
of advertising and modes of campaigning that have been used
in campaigns for District Judge in Dallas County?
A. In a general sense, yes. :
G. Do vou have any opinion as to whether campaigns for
District Judge in Dallas County are typically or usually or
often characterized by racial appeals?
A. I would not say they are often characterized by racial
appeals.
a. Is that an extraordinary circumstance in your
judgement?
A. I am aware of only one case personally where there was
a racial appeal.
@. And what was that case?
A. That was the 1980 race of Charles Ben Howell against
Joan Winn.
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Champagne — Direct - Godbey | 4-148
&@. Do you have any opinion —— well, I am sorry. Let me
first ask you if you are aware of the general reputation of
Judge Howell in terms of his characteristics as a candidate
for judicial office?
A. Yes.
&. And have you tried to keep track of reports of Judge
Howell's actions in the course of his various campaigns”?
A. Yes. I am not sure I have been able to keep track of
all of them, but I have tried.
@. Just for the record if you would, please. sir. could
you look at Exhibits 20 and 21 and identify those for the
Court?
A. Exhibit 20 1s a newspaper article by Judge Howell. ARG.
Exhibit 21 1s alsc a newspaper article about Judge Howell.
G. Our newspaper reports such as these in general a kind
of information political scientists would rely on in
attempting to develop an awareness and a base of information
as to the way judicial campaigns are conducted?
A. It would be one source of information. yes.
GG. Would you alsc try to corroborate it from other
sources”
tA. Yes.
a. In connection with Judge Howell have vou tried to
corroborate his approaches to judicial campaigning and
judicial temperament from other sources?
Champagne -— Direct - Godbey 4-149
A. Yes, 1 have.
@. In general how would you characterize Judge Howell's
approach to handling campaigns?
A. I would be inclined to say offbeat, unconventional. He
is kind of a political maverick.
@. Are you aware of a judicial reprimand in connection
with Judge Howell”
A. Yes, 1 am.
@. What is your awareness of that?
A. It 1s a Far visnd from the State Commission on Judicial
Conduct. And it was 1988 reprimand during the course of his
race for Supreme Court. Essentially it was a reprimand
involving his pursuit of frivolous litigation while he was a
Judge.
0. Are you aware of a campaign advertisement that Judge
Howell used in connection with Nia campaign against Joan
Winn?
A. Oh, yes. 1 am.
@. ERased on your perception of Judge Howell and your
awareness of judicial campaigns in Dallas County generally,
would you characterize that as an aberration?
A. Yes.
@. Would it affect your opinion that appeals to race in
Dallas County judicial campaigns are an aberration to know
that on occasion newspaper articles have referred to
Sab HS es IA ERSTE TR cuca
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Champagne — Direct - Godbey 4-150
minority candidates for judicial office in terms such as the
Black candidate for Judge?
A. Would these be ads for judicial candidates or would
these be newspaper articles?
8. For purposes of my question, newspaper articles in the
course of news reporting”
A. No. That wouldn't affect my judgement.
GG. Why is that?
A. It is not a campaign appeal. It is a newspaper article
by a reporter who might, the reporter might find that a
Black judicial candidate is something newsworthy to report.
MR. GODBEY: Pass the witness.
THE COURT: It 1s 12:47. We will stand in recess
until 1:47.
{Noon recess.)
(Open Court.)
THE COURT: All right. 1 apologize for the six
minutes delay, but you will be relieved to know that I am
not going to appoint one of you as the attorney for Lowell
Hahn. I appointed the Federal Public Defender, and that is
where I have been, talking with her. And she is filing a
motion for continuance. And so if the defendant ends up
suing her I may have to replace, as he has done, he has sued
several of his previous attorneys including the U. S.
Attorney. which I don't think is too swift, but that is his
24
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4-151
problem and not mine. But you all are safe for right now
anyway. Thank you. Proceed.
CROSS EXAMINATION
BY MR. CLOUTMAN:
GG. Let me ask you a few guestions. if I might. If you
could turn to your, 1 believe it is your first exhibit, I am
sorry, Exhibit No. 3. Excuse me. Doctor, just by a careful
review of what vou have listed here as publications and
field of interest, I take it other than Sam Rayburn. who
presumes to be very prominent in publications in speech, 1
take it you made some studies of the judiciary as a whole,
and Texas in particular; is that correct?
A. Yes, sir. that is true.
@. Tell me if I understand correctly that one of the
positions you now hold, at least have been a proponent of.
is actually doing away with elections of Judges in Tarde and
replacing that with a merit selection system of some form?
A. No, that is not the position that I have ever held. I
have certainly considered it, and I think it is. you know,
an important consideration. But the problem I have had I
think for. well, four years, almost five years now, is I
still have problems with merit selection of Judges. I still
think that that really doesn’t solve all of ante problems
with judicial selection.
GG. Well. I had been given to understand —
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RT I I A FT i wT
Champagne — Cross — Cloutman 4-152
THE COURT: Have you come to a solution of how,
you know, to soclve all of these things? If you have, 1
would like to hear it, you know. How are we going to solve
judicial problems”? If you have got a solution I will be
happy to hear it right now.
A. I wish 1 did have a solution. I honestly don't. I was
at a convention awhile back where one professor said, well,
maybe the answer is there just ain’'t no good way. And I am
beginning to, 1 am beginning to conclude that myself.
BY MR. CLOUTMAN: :
a. I have been under the impression, maybe incorrectly,
that by and through your service on the John Hill committee
of 100 you had taken at least some public positions that
were in favor of some sort of merit pool selection; is that
correct?
A. “Np. oI spoke about merit selection systems throughout
the country and advantages of merit selection systems. But
I never endorsed a merit selection system.
BG. All right. How would you describe yourself in terms of
your own personal political affiliation then. spectrum
within that affiliation, conservative or liberal”?
tA. I would probably, I think I am kind of in between. It
depends on where I am. When I taught at Rutkers 1 was
conservative. When I am here in Texas I think I am very
liberal.
Ape CT mr mr pea CT TT pp i ye tS i TS ——— ea TE - ry - re i
Champagne — Cross —- Cloutman 4-1 tn
A
G. Your frame of reference makes a difference?
A. Frame of reference makes an incredible difference.
Q. In context of one of vour comments, my curiosity was
piqued. you indicated that you think in part one way is to
increase minority participation, Black participation on the
District benches in Texas to increase the numbers of law
students who are Black and are Hispanic; is that correct?
A. Yes.
a. I notice you have written considerably on the subject
of legal gErvices for the poor in one form or another and 1
take it you are familiar with that one entity as a group of
entities that has been, at least an initial employment and
possible training ground for a lot of minority lawyers in
thie country?
A. Yes.
@. Do you envision in some way that we can wait on this
educational process to work before we will actually see
numbers of Blacks and Hispanic Judges on the Texas benches?
How long is it going to take?
A. I think 1t will take a long time.
@G. Ten years, twenty years?
A. I think it will take twenty years, ves.
THE COURT: Like Brown versus Board of Education,
everybody moved quickly right after 1954.
BY MR. CLOUTMAN:
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TIS 2 SA TTT EST ST IE TT AIM AT IL
Champagne — Cross -— Cloutman 4-154
@. Yes, with all deliberate speed. All right. Now,
through your examination of the various races. election
contests 1 am referring to, that you have looked at in
Dallas County. I take it none of your focus had to do wit
the race of the voter, but the race of the candidate
involved: is that correct?
A. The only analysis that deals with the race of the voter
is that exhibit that uses Mr. Wiser’'s study.
GG. All right. But in terms of what you say, I believe you
say your earlier exhibit shows that they show by candidate
preference —— 1 am sorry. by candidate success, you
indicated that candidate success was the function of
partisan and not racial preference; is that right
Af. Yes.
8. But that is not based upon an examination of voter
preference but rather on the candidate's success, is it not?
A. Yes, that i= true.
fl. So you are sort of starting out the conclusion and
working backward, are you not?
A. Yes.
a. Is it fair to say that you know that the two elected,
the only two elected Black District Judges in Texas were not
the candidate of choice of the minority community, Rlack
community in Dallas?
A. Well. in Texas ——
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Champagne —- Cross -— Cloutman 4-155
THE COURT: You are talking about Dallas County,
not Dallas, Texas?
RY MR. CLOUTMAN:
G. Yes. Dallas County. I am sorry. Excuse me. Dallas
County.
A. I think that given a partisan voting pattern they were
not party of choice, ves.
BY MR. CLOUTMAN:
G. Well, did you or did you not know that over 97 percent
of the voters in Dallas County voted for the candidate
opposing the two successful back District Judges in Dallas,
Dallas County?
A. Could you ——
G. 99 percent.
A. 99 percent of the voters?
Q. Identifiable Rlack precincts went for their opponent,
did you know that?
Af. No, I don't know that.
GQ. So you did not examine anything like that?
A. I am afraid 1 don’t understand your question.
@. You did not examine any voting patterns that brought
those two Black District Judges to successful conclusion or
campaign?
A. Oh, that's right. Yes.
@. Now, you told us you don't think there ig any
/
FTE TRCN) RANE 5
aa
24
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Champagne — Cross - Cloutman 4-156
relationship —— my notes — relationship between the success
of the candidate and the race of the candidate; is that a
fair summary of what you had said?
A. Yes.
Gi. All! right. And I mean by that a candidate Tor the
bench in Dallas County?
A. Yes.
BG. All right. What relationship do you suppose there is
between the party of the successful candidate and the racial
composition of the voters in its Primary? For instance, do
vou identify as a social scientist the Republican party as
predominantly that party that is voted in and participated
in by White voters in Dallas County?
A. Yes, I think that is true. =
@. Would it not be a reasonable conclusion to then assume
when one votes a straight Republican ticket or votes for
Republican had ida tan individually that they are more likely
than not voting for White candidates, even if they don’t
know the name or face of a candidate?
A. I think the best way would be to study the candidates
and toc know.
+8. You haven't done that, have you?
A. Well, yes, I have studied the candidates.
Q. Other than the two Black District Judge candidates can
vou tell us any cther time a Black lawyer has run for a
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Champagne — Cross - Cloutman 4-157
District bench in Dallas County on the Republican ticket?
A. No other time.
Gl. As a matter of fact, so the voters may just as well be
voting with the confidence that they are voting for a White
candidate when they vote straight Republican party or vote
individual Republican races, mighten they?
A. Well. no. If there are two Black candidates who are
running as Republicans, and there have been four total
running as Democrats, I don't think you can easily make that
conclusion.
@. You don't think it is as easy to associate race with
Republican party as it is to associate partisan with the
Republican party, when a voter goes into the voting booth,
or a voter answers your telephone poll?
A. I think it is easier to identify partisanship as your
voting cue than race. yes.
@. And you don't think voters in their minds ever make an
equation if I vote Republican I am voting safely White?
A. I don't know if voters do that.
@. You didn't study that data?
A. No, I did not.
@. So when you tell us that you don’t think that the
voting in Dallas County is racially polarized rather than
partisan polarized. you have never examined to see whether
voters were voting for one party or another do or do not
24
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Champagne — Cross - Cloutman 4-158
associate both parties as those of the White person's
preference or the preference of minority voters?
Fe. In terms of voter's image of those parties?
8. Yes.
A. "No, fl don't.
GC. Would that not make some difference in the analysis of
racial polarization, whether it exists? The two may be one
in a voter's mind is what I am suggesting.
A. It is possible the two may be one.
@. Two being partisan and race?
A. Yes.
@. Regarding your telephone poll for a moment, I might not
have understood what you told me and actually your counsel
has been very good about explaining how it was taken, so 1
won't bore you with the details. I take it, though. the
selection of the voters did not attempt to control or
proportionalize, to use my word, precincts of the county to
be sure every part of the county was sampled. north, east,
south, west by the telephone poll.
A. No. The idea was that the sample that was drawn would
be a random sample and so the randomness would
proportionalize.
@. That is the assumption tn the model of the poll?
A. Yes.
Q. And there was no effort then made within that to be
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Champagne -— Cross — Cloutman 4-159
sure that you were sampling sufficient numbers of 90 percent
Anglo precincts and 20 percent Black precincts?
A. Other than that assumption of randomness.
CG. And again there was no attempt to proportionalize or
weight the calling with respect to where Black and White
pecple live residentially in Dallas”?
A. Not beyond the randomness of the poll.
@. The poll was all by telephone?
A. Yes, sir. 1t was by telephone.
@. No face to face interviews?
A. No face to face.
GG. You told us that one of the things voters or people
being surveyed generally, I guess, tend to do is exaggerate
or overstate things that are sensitive or embarrassing to
them.
A. Uh-huh.
@. Such as overstating the fact they voted?
A. Yes.
Q. People don't want to admit, no, I didn't exercise my
franchise; is that correct?
A. That's right.
BG. Is it just as likely that people would not tell you
they voted along racial lines, or would be embarrassed to
tell you, oh, I voted for a person that is White or I voted
for a person that is Black?
24
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Champagne -— Cross - Cloutman 4-160
A. No, I don't think so. If I can explain why.
GQ. Please do.
A. In 1973 1 went to a small town in Louisiana and did
interviews with people who were sending their children to
segregation academies and these people were extremely open
in describing their racial views. So I think people with at
least extremely strong racial views are very up front about
it. PFeople with less strong racial views might not want to
talk about it.
8. And as a social scientist wouldn't you agree with me
that people who are willing to express that are really
fringe, on the fringe, on the extreme of either Black or
White issues, people tell you I vote and 1 act because of
race all of the time or some of the time?
A. May very well be, ves.
8B. So it very well my be that when you ask people the
questions that tended to identify candidate by race or by
ethnicity they were either unsure or maybe unwilling to
answer your questions?
A. Well, only four people. though, said that they were
unwilling to answer questions.
+8. Or unsure they should answer questions?
A. No. They said they were unwilling to answer.
8. Many of them said they didn’t know?
A. Yes, they said they didn't know.
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Champagne - Cross — Cloutman 4-161
BG. As a matter of fact most say they didn’t know?
A. Yes, sir.
G. Almost every race you tested?
A. I wouldn't think that that would be embarrassing to say
you knew the race of the candidate. That is not expressing
any kind of racial prejudice.
a. It wouldn't be to you, I take it?
A. No.
G. Okay. I take 1t, though, that when you do telephone
polis there is a tendency, since you don’t see the people
being polled, you can’t engage in conversations regarding
the survey, the tendency is to get less accurate answers
than when you do exit polls, or face to face interviews.
A. I don't know that that is the case.
8. You haven't seen any —
A. I haven't ad literature that confirms that.
GG. Let me turn back just for a moment to the. at least
explanation or one of the explanations you gave for the low
number of Black Judges on the bench, having to do with low
number of lawyers in the pool. Maybe I am all wrong
statistically. but it seems to me that you could analyze the
pool for lawyers all day long, but when you get down to
filing for candidacy we have got one Black lawyer running
against one White lawyer, I think statistically there is one
out of two chances, without something else intervening. that
TPR EIN" Tm i tn aa aa ee STE
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Champagne - Cross - Cloutman 4-162
the Black lawyer is going to win.
A. Yes.
@. All right. And that has not proven to be the case, has
it?
Ao. That 1s true.
G. In candidacies. actual candidacies. not potential
Judges, actual cases, one out of two don't work in Dallas,
does it”?
A. No. It is four out of nine.
@G. What four Judges?
A. If we are counting, if we are counting races and 1f we
are counting Primaries.
8. We have got two elected Black Judges and we have four
others who run and lost?
A. Yes. Nine races though.
@. So you are going to count the same Judges twice; is
that right?
A. We could count them some other way if you would like.
@. Would you agree with me that whatever the expected
number of Judges after a race is run, that does not
associate at all with the pool of available minority
lawyers?
A. After the race is run, yes.
GB. Or after the candidates have filed?
A. After the candidates have filed.
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Champagne — Cross -— Cloutman 4-163
QQ. A one on one heads up contest, one out of two, somebody
is going to win that race.
A. Yes.
@. That has nothing to do with the pool. does it”?
A. That's right.
GG. With respect to your doubts about the number of Black
lawyers in Dallas, I take it you would be surprised if the
number of Black lawyers approached 2003 is that right?
A. It would be some surprise.
@. Certainly -——- I am sorry.
A. Not a dramatic surprise but, ves.
8. Certainly higher than the number by the State Ear or
the Dallas Bar, 1 know that.
A. Yes.
G. Did you ever check with the J. L. Turner Legal Society
for their membership numbers?
A. No, sir, 1 did not.
G. That is not something in your equation? You gave
several reasons with respect to the administration of the
district bench that would maybe suggest at large. county-
wide elections are the best model. Let me go through those
briefly with you. First you said there is a history in
Texas since the Texas Revolution of the county unit of
Government. Do you understand anybody to be suggesting that
the county unit of Government be changed in any way other
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ES oh Tw Sarat Coo, mI hors 2 Zc NE
Champagne - Cross - Cloutman 4-164
than the election of Judges from a smaller than county
district?
A. No.
@. Okay. As a matter of fact, as you described. in the
spirit cf the Texas Revolution moving Government closer to
the people, smaller districts would certainly move
Government and the election of the Government much closer to
the voter. would 1t not?
Af. Yes, it would.
3. So maybe this is part of the Texas revolution?
fF. A few years late.
G. An idea. Now, you also indicated allocation of
Spas iat sation Courts is a phenomenon that you didn’t quite
agree with as to say a random allocation or an assignment of
gpecialization Courts. I take it that there is a rune tl
specialty Courts in the county that is a function of what
the legislative believes the county would need given its
docket on the civil and criminal sizes, Family Court size,
Juvenile Court size.
GB. What impediment is there to a numerical assignment of
those benches by specialization around the 36 or 37
districts or 18 or so districts around the county, is that
any less arbitrary than what the legislature has done in
counties dubbing the next Court as he next Family Court, the
net Criminal District Court?
Champagne - Cross - Cloutman 4-165
% 1 A. I think there 1s a difference in that it would be an
2 ||lallocation of Judges. You run into the problem of
3 |laccountability, electoral accountability where you have
4 lcriminal and civil but you don't have family.
5 a. mn
og that is your real rub; 1s it not? It is the
6 ||accountability, whether all voters get to vote on the
7 |ICourts™
8 A. Yes.
9 8. Okay. It is not a problem to say District 1 is a
10 {Criminal Court and Civil Court and Family Court and 2 is
11 ||scmething else?
12 A. I think there could be problems in allocation just in
13 || figuring out which goes where, but that could be done
14 ||arbitrarily, yes. Or by law or whatever, by fiat.
15 a. It could be done randomly, you could go around the
18 County, 1a. 2, 3, 4, conidn’t you. and apportion by ethnic
17 ||breakdown, a relatively equal number of specialty Courts
18 ||lamong the various parts of the county by race?
19 A. Yes.
20 Q. And also you are concerned about having to add Courts
21 |land having to add districts. You are familiar enough with
22 ||politics to know we don't reapportion legislative district
23 ||but once every ten years.
24 A. That's right.
25 GG. Even if they get way out of whack.
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Champagne — Cross —- Cloutman 4-166
A. That's right.
GQ. So there would be no similar problem, I believe you
suggested, if you assigned a new Judge to a rotating number
of districts around the county just as we have done
basically in the past, adding county-wide, you could simply
say district 1 gets the new Family Court, district 2 gets
the new Criminal Court and on and on around the county,
could you not, as the need arose?
A. Well, you could do that as need arose. But, of course,
there would be a fairness problem in terms of allocating two
or three Judges to this sub-district and one or two Judges
to this sub-district.
GB. It would seem to me you wouldn't do that, you would do,
at least to be fair. no more than one per district, would
you not, if you were to maintain some semblance of fairness?
I mean would that bother you if one did it that wav?
A. If you only had one Judge allocated per district?
@. No. As new benches were created you only assigned one
bench to one district and as another bench was created vou
would not assign that Judgeship to the same district but
rotate it or move it elsewhere?
tA. Yes. But when you are rotating it there is still a
problem of unfairness.
BG. The same problem you had before?
A. I am sorry.
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Champagne — Cross - Cloutman 4-167
@. The same allocation problem, is it not?
A. Yes.
Q. It 1s nothing different than that?
A. An alleocation problem, ves.
@. Assuming that all the county-wide services remained, of
course, the jury pocl remains county-wide, the Grand Jury
pool remains county-wide, the clerk's office continues
county-wide assignment and there is an Administrative Judge
who can assign and equalize cases on a county-wide basis.
Are there administrative problems other than those that
aren't solved?
A. No. If you have the county-wide administration. the
problems of jury selection and case load would not be a
problem.
@. All right. You hold a theory, I guess, doctor, do you
not, that the larger the electorate, that is the people who
are voting on a Judge, there is a lessening of danger of
impartiality”?
A. A lessening. yes. Uh-hubh.
@. That doesn't mean a large district automatically grants
you impartiality? As a matter of fact, no system
guarantees you that, does 1t?
A. That's right.
1. You have appointed Judges who have found themselves in
trouble as well as elected Judges?
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Champagne — Cross - Cloutman 4-168
A. That's right.
8. And elected Judges from a whole host of sizes of
districts have had problems?
A. That's right.
BG. You are not going to tell the Court then that undue
influence or corruption or any of those names we might want
to get to has anything to do with the size of the district.
are you?
A. I think it does have something to do with the size of
the district. I think there is that very general
relationship. But as I said, it is more of a scale than it
is some absolute thing where this district is too small or
this district is too big.
@. Where do you find support for that theory, what facts
do we have?
A. Basically I think you find support for that notion even
in the writings of James Madison.
GG. Well, the writing of Mr. Madison aside, 1 think have we
got case examples, have we got Courts you know about that
have been found to be less than partial, corrupt and someone
attributed that. some finder of fact attributed that result
to the size of the election district?
A. The only one I am aware of in that regard is a case
that was reported in the Texas Law Review involving a
district in Dangerfield, Texas, where there were, it was a
cn RES SOT oo Lore
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Champagne - Cross —- Cloutman 4-169
small district and a large number of plaintiffs that
essentially comprised the electorate for that Judge.
G. As I recall, that is a multi county district as a
matter of fact.
A. Yes. One of the rural districts.
Gi. Right. Where a whole bunch topsy tort cases are
pending in front of the same Judge?
A. That's right.
@. Lone Star Steel.
A. That's right.
GB. How would you solve that, would you go to add more
counties to that Judge’'s district than he already has to
splve this? He already has two 1 think or three.
A. I am not sure 1 know how to sclve that problem of -
parochialism in very small districts. I can see that
parochialism does exist in very small districts. But if you
expand those districts and make them aroar! you know, the
geographical size of the district may just be impossible to
deal with.
8. Using for example the 1980 census in Dallas County, and
using then Dr. Weiser ’'s suggested remedy plan or plan that
would alter the election of some Judges responsive to the
Black electorate, these districts would be about 85,000,
90,000 people each, and I take it that is just too small for
you?
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Champagne - Cross — Cloutman 4-170
a 1 A. No. I never said it was too small for me. I said it
| 2 |lwas a scale, it will be more parochial than a larger
3 |ldistrict. But I can't say that it is too parochial.
4 @. All right. And again you base that conclusion, sliding
5 |lscale of parcchialism, on the Judge's problem out in
6 |{|Danger field?
7 A. Well, basically basing it on writings and political
8 llscience from Madison to Herbert Jacobs in modern times.
9 GG. But none of those, 1 take it, are dealing with case
10 ||studies™?
1 A. No. none of them are doing case studies of parochialism
12 ||versus isolation, insulation.
13 GG. All right. You gave us your views on Judge Charles Ben
14 Howell. Without going into his behavior a moment, do you as
15 {la political scientist, having observed the Dallas bench for
16 ||awhile, the Dallas electorate particularly with respect to
17 ||Judgeships, don't you find it rather incredible that the
18 ||[voters in Dallas County would continue to elect that man
19 {leven to a higher office where he may appeal to race?
204) A. I do find it incredible.
21 @. What do you assign that to, you don't find any
22 |leonnection between the voters and the majority of the
23 ||voters® lack of care about race, lack of care about the race
24 lof the opponents of Mr. Howell to vote him out of office?
25 A. I think the explanation lies in his political party
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Champagne — Cross — Cloutman 4-171
affiliation.
BG. Republicans don't care about that?
A. No. He gets elected because he is Republican.
@. Finally you indicated that you saw some, or maybe you
gave us at least an opinion on news articles that would
mention the race of the candidate as not being a problem in
your mind, not being, did not appeal to race.
A. Not in terms of political candidates’ appeals to race,
@. Would you agree with me the only time you see that in
the Dallas papers is when the candidate is ERlack or
Hispanic? You don't see a White candidate identified as
White in that same article, do you?
A. No, 1 don't.
Qa. It is either the candidate or the Black candidate as a
descripter?
A. Yes.
GB. Why do you not think that helps the voter identify the
candidate as a person of a race other than themselves, and
possibly one they want to vote against?
A. Someone who wanted to vote against a candidate like
that and wanted to learn the race of the candidate could do
that by reading articles.
G8. So there is one way people can form private racial
biases against candidates?
24
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2 x
Champagne - Cross - Cloutman 4-172
A. To read about the race of the candidate in the
newspaper, yes.
MR. CLOUTMAN: Pass the Witness, Your Honor.
THE COURT: Mr. Godbey?
REDIRECT EXAMINATION
BY MR. GODEEY:
@. Frofessor Champagne, Mr. Cloutman asked you whether you
had locked at this from the voter preference end or from the
election outcome end. and 1 believe your testimony was you
toohad at it from the election outcome end. If there were
in fact some voter preference for judicial candidates
depending on race of the candidates, would you expect to
have seen that manifest itself in the results of the
elections?
A. Well, if you looked at the exhibits that compares Black
Democratic candidates with the average Democratic candidate
for example, if there was some racial preference that was
being shown, I think a difference would appear there.
@. So even though you had not specifically, or I guess I
should say even though you have not directly examined the
voter preference. do you feel confident of your opinions
regarding voter preference based on your analysis of
outcome?
A. There are direct indicators of voter preference, such
as that chart. But I did not specifically ask the voter
3
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24
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Champagne — Redirect - Godbey 4-173
what is your preference or how do you identify with the
Republican party. But there are indirect indicators like
that, yes.
@. And you feel as a social scientist and political
scientist that the data you examined is sufficient to
support your conclusions in that regard?
A. In reference tec partisan voting as opposed to racial
voting. ves.
8. Do vou recall offhand about how many contested judicial
elections there have been, General Elections, in Dallas
County let's say since 1980 to date?
A. I could look very quickly, 1 think, and identify how
many contested races there have been. Let's see. There was
seven in 1980, there were 17 in 1982, 24, about 46, I think.
GB. And in each of those there was a candidate from both of
the major parties?
A. Yes.
@. Given the volume of contested judicial races and the
relative number in each party of minority candidates, do
vou think a rational voter could effectively use party
identification in some way to ferret out minority
candidates?
A. You couldn't ferret out all minority candidates if
there were two minority candidates in the Republican party.
@. Similarly could you do it in the Democratic party if
Et Te kh
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Champagne — Redirect - Godbey 4-174
there were four out of 467
A. No, you couldn't ferret out all. No.
Q. If a voter were interested in voting for or against a
candidate based on the race of the candidate, do you think
partisan affiliation would be a very effective tool for that
voter to use?
A. I think a far more effective tool would be for the
voter to really search out knowledge of the candidate.
Farty affiliation is going tec be just an awfully weak
indicator.
@. And again, based on your examination of the data,
including the survey data, do you think there are voters in
Dallas who are attempting to determine the race of
candidates and vote for or against them based on their race?
A. I really cannot say. given the survey data and given
the data that we have. There may vary well be voters in
Dallas County who won't to do that. But there is nothing
indicated in the data that there are voters doing that.
@. At least not a sufficient number of such hypothetical
voters to show up in the analysis you have done?
A. I have not been able to pick them up.
+8. Are you aware of techniques that could have been used
in selecting the pool of survey respondents to enlarge or
heighten the number of minority responses?
A. Yes. You could have some samples according to the
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. Ei ARS IY i at : x or AA Lad S84 -
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Champagne — Redirect — Godbey 4-175
various groups so that you over-sample Blacks or you over-
sample Hispanics for example, select more of them in your
sample than Whites for example.
@. Does that cause any problems in interpreting the
results of the survey?
A. It makes it harder to interpret and to convey the
results of the survev.
@. Other than over—-sampling in this specific dispute areas
are there any techniques that survey people can use to
insure adequate numbers of particular sub-groups?
A. 1 think it is basically over—-sampling or large random
samples.
@. And was that other alternative in fact what was used in
this vote”
A. Yes.
BG. Mr. Cloutman asked you if 1t was possible that given
the fact that you did not deliberately skew the survey to
have particular geographic areas in Dallas County, whether
or not it was possible that all the respondents could have
come from some specific area in Dallas County: do you recall
that question?
A. There is just, it just couldn't happen, given the
randomness of the sample.
BG. Although it might be conceivable it is not likely?
A. It is highly unlikely.
. 24
25
Champagne - Redirect - Godbey 4-176
@. Mr. Cloutman asked you some questions regarding the
policies underlying the existing county-wide system of
elections in Dallas County, and 1 believe he was asking you
if there was any difference between your concern regarding
specialization and your concern regarding accountability.
Does your concern regarding azcountkabiivty focus on the
rights of voters?
A. Yes, electoral accountability would be the voters’
choice of Judges, yes.
Q. And whether or not the voters would be disenfranchised
by not being able to vote for all of the Judges?
A. Yes.
Q. And that is one specific concern?
A. Yes, they are not able to vote for all the Judges with
a sub—county election system. They are only able to vote
for a fraction of the Judges.
a. Is that the same as saying a voter might also have a
concern about whether he gets to vote for a Criminal Judge
or whether he or she gets to vote only for a Civil Judge or
whether he or she only gets to vote for a Family Judge?
A. There is electoral accountability concern that we just
mentioned, and then there is also this allocation concern
that if I do get to vote 1 am only getting to vote for a
Family Judge and I am not getting to vote for a Criminal
Judge for example. So I think that there is a distinction.
24
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Champagne -— Redirect - Godbey 4-177
It is related to accountability, both are related to
accountability, but there is a distinction.
Q. Mr. Cloutman asked you some questions regarding your
concerns about parochialism, and I believe you indicated
that 1t 1s on the spectrum: is that correct?
GG: Scale. Just to be clear, even though it is on a
spectrum it is your opinion that there is a greater or
lesser risk of parochialism being exhibited as districte are
reduced in size from the size of the counties such as Dallas
to either 18 or 37 in the county?
A. I think there would be greater parochialism evident if
you reduced the size of the Stetrict, ves.
a. I am not sure I understood one of your answers in
regards to Charles Ben Howell and the fact that he continues
to be reelected. Did you mean to say that Republican voters
in Dallas don't care if judicial candidates use what may be
racial appeals?
A. No. I didn't say that. I didn't mean to say that.
BG. Okay.
A. What I was saying was Charles Ben Howell was being
reelected because Dallas is Republican and Charles Hen
Howell is Republican.
GB. Is the fact that Judge Howell keeps being reelected
despite what perhaps we can call he unusual behavior
CL en SL At Ae WIEN EE oc inch i sedBe
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Champagne - Redirect - Godbey 4-178
consistent with your hypothesis and opinion that voters in
Dallas vote for Judges based on their partisan affiliation
rather than any other specific knowledge about the Judges?
A. Yes.
GG. Mr. Cloutman asked you about, in press reporting
whether the fact that some candidates were referred to as
Rlack candidates would provide a source of information as
the race of candidates for those voters who might be
inclined to vote for or against a candidate based on that
candidate's race. Do you recall that?
A. Yes.
@. Although that provides a source of such information,
should a voter be inclined to use it, do you have any
opinion as to whether or not there are significant numbers
of voters in Dallas who are looking into newspapers to try
to identify minority candidates so they can withhold
support”
A. I have not identified voters like that.
@. Do you think it is likely there is any significant
number of such voters, based on your research?
A. Given the degree of partisanship in Dallas County I
would say no. But I have not surveyed those voters and
asked them do you search through the newspapers to find
these sorts of labels.
G. You don't know for sure, but it would seem unlikely?
24
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Champagne — Redirect - Godbey 4-179
A. Yes, I don't know for sure.
MR. GODBEY: Pass the witness.
MR. CLOUTMAN: Nothing further.
THE CIOUIRY: Thank vou. You may step down. it
occurs to me we can get away from this specialization
problem by just decreeing that no more would we have
specialty Courts. We wouldn't have that problem. I don't
want to hear anymore about Charles Ben Howell, 1 have heard
enough of that. you know. Call your next witness.
MR. MOW: We call Judge Carolyn Wright, Your
Honor. For the record. we didn't first raise Charles Ben
Howell, Your Honor.
THE COURT: I heard an hour and a half of
testimony on something that doesn’t have anything to de with
| this lawsuit. Raise your right.
{Witness sworn.)
CAROLYN WRIGHT. WITNESS. sworn
EXAMINATION
BY THE COURT:
a. Tell me your name, where you live and what you do,
please.
A. Thank you. My name is Carolyn Wright. I live in
Dallas, Texas. I am a State District Judge of the 256th
District Court in Dallas, duly elected by the citizens of
Dallas County.
24
25
Wright - By the Court 4-180
@G. And tell me a little about your educational background
and your practice?
A. Briefly. my educational background, let's start with 1
guess I went to high school in both the United States and
Japan. My father was Korea military. We returned and 1
went toc school, I am a native Houstonian and we returned and
I subsequently moved to Washington where I worked and went
to college.
fi. GBtate or D.L.?
A. Washington, D.C. I went to college and worked there
for the Mavor’'s office of Youth Advocacy for some ten years.
I also during that time was a legal intern for the Lawyer's
Committee on Civil Rights, a South Africa project. I
subseguently moved to Texas, and after going back, after
working I went back to law school. After attending law
school at Howard University. getting my degree 1 returned to
Texas and subsequently started practice. Initially I was in
Houston and decided to come £5 Dallas. 1 then practiced
then for about five years in private practice in Dallas and
was appointed as a master in Family Courts of Dallas. In
1986 and '87 I was appointed as a master. I served for
three years and was elected as a State District Judge in
1984. I ran in the 86th and was elected.
THE COURT: Okay. Bo ahead.
MR. MOW: Does the Court have any particular
Wright — By the Court
questions?
THE COURT: Your witness. If you ask her one
question about Charles Hen Howell, you are out of order.
MR. MOW: No.
COURT: I have heard enough of that.
MR. MOW: We didn't raise that issue. If the
Court rules it out of the case, that's fine.
DIRECT EXAMINATION
EY MR. MOW:
@. Judge Wright, you are married?
1 am.
Where do you live?
I live in Dallas. Do you mean the specific
Right.
Specifically I live in Oak Cliff.
And how long have you lived in Oak Cliff?
Only, well, since 1 was married, I guess in January. 1
married in December and we moved there in January.
Have you been active in the Black community?
Yes. 1 have.
We seem to be missing the evidence notebook, is it left
up there anywhere by vou, the black notebook.
A. There is not a lot of room up here, counsel.
MR. MOW: May 1 approach the witness?
24
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Wright - Direct - Mow 4-182
THE COURT: You may.
MR. MOW: And give her Exhibit 3?
BY MR. MOW:
a. Is Exhibit 23 a copy of your biographical data”?
A. Yes, it is.
@. And can you point out to the Court just briefly what
some of your activities have been focusing on. Rlack
organizations are what I call activities in the Black
community?
A. Certainly. I have spoken frequently as guest lecturer
to churches, legal seminars, in many of the public schools,
I have served on the Governor's Commission on Women. 1 am on
the board of directors of the Dallas Black Chamber of
Commerce. I have also served on the board of the Dallas
Council on Alcoholism and Drug Abuse. I am currently on the
YWCA Women's Resource Center Buvisory Hoard, served as a
patron and co-chair of the Junior Black Academy of Arts.
Also worked with the Hispanic community on the board of
directors of Central Diamistat. Also worked with, I am on
the board of the law magnet schools and each semester 1 have
legal interns who serve in my Court. Save and except one 1
believe they have all been Black females. I have also been
a Judge on the moot Court trials for the high school
competitions as well as the SMU competitions put on by the
Dallas Bar. I was one of the Dallas chapter of the
24
25
Wright = Direct - Mow 4-183
Coalition of 100 Black Women. I was also a charter member
and past vice-chair of the National Folitical Congress of
Elack Women.
@. Okay. I think you have given a fair number of them.
Others are listed on vour resume”?
A. Yes.
G. All right. Now, when you ran for office 1 1986 what
was your party affiliation?
A. I was a Republican in 1986.
@. How long had you been a Republican?
A. I had been a Republican actively 1 imagine since
approximately "81.
QQ. And why in general terms were you a Republican?
A. In general tarhe I was, 1 became actively involved in
the Republican party in Dallas County. I had always
perceived myself as an independent, voting and supporting
candidates both Democrats and Republican across the board
based upon the person. However, when I came to Dallas
County it was evident to me that there was a strong need to
be involved, especially the Rlack community, to be involved
in the two party Syeten. 1 perceived from observations that
the Rlack community had long been very much tied to the
Democratic party politics of Dallas County, and that it had
been to their detriment. Consequently I made a choice that
1 was going to actively make the two party system work and
24
25
Wright — Direct - Mow 4-184
that I was going to become involved and I was going to
involve others in that process.
8. And why do you say that in your opinion the activities
of the Democratic party to tie the Black community to the
Democratic party had been toc the detriment of the Elack
community?
A. It appeared to me that over the years that the Black
voting public ——
Qa. I am speaking of Dallas County now.
A. In Dallas County, that is all I am talking about today
is Dallas County. It appeared to me that in Dallas County
that over many many years the Black voting populous had
voted on the straight Democrat lever and they had
repeatedly elected Democrat officials, most often whom were
Anglos. And in fact I saw very little gain. I saw a city
that was increasing in the Black population, that had no
Congressional representative. It appeared to me that there
were few representatives in the Black community and
certainly in relationship to the amount of support that had
traditionally been given to the Democratic party.
@. Were you aware from your time in Dallas of any active
efforts by the Democratic party to solicit straight party
voting, particularly in the Black community?
A. Oh, most definitely over the years.
GG. Can you describe those efforts?
Wright - Direct - Mow 4-185
A. Yes. Frequently, it was frequent occurrence that
Blacks, the Black leadership would get on TV or on radio
programs, Black radio stations and urge the Black voting
constituency to vote the straight Democrat lever. As a
matter of fact in my own race in the year that I ran in 1984
not only were they soliciting Black local Democrat
officials, but they had also brought in Martin Luther King,
III, who cut in a radio ad soliciting in the Ft. Worth and
Dallas areas Rlack voters to vote the straight Democratic
lever. And without any regard to who might be running on
the Republican ticket or without any regard toc whom might be
running on the Democratic ticket for that matter. Simply a
message to vote the straight Democratic lever way.
@. Have you personally attempted to get any Democratic
judicial candidates to run on the Republican ticket?
A. I have.
@G. Who in particular have you talked to?
A. 1 began that effort in 1982, first with Judge Berland
Brashear. He was then, he and Judge Joan Winn at the time,
Judge Joan White now, were the only two sitting Black Judges
who were on the bench at that time in 1982. It was clear to
me that Dallas County was getting ready to turn Republican.
All of the Republican Judges were invited to switch. 1
personally went to both Judge Winn and Judge Brashear, told
them that — at that time I was practicing — I told them
TN
24
25
Wright - Direct - Mow 4-186
that I would assist them. I had actually been involved with
the Republican party as well as some persons that 1
considered to be very progressive in the Democrat party. who
wee working for Hlack Congressional districts. We were
working on redistricting. 5c 1 talked to them in and about
that same time. I had told Judge Brashear that I would
assist him with the Republican administration, as I also
told Judge Winn. Judge Winn declined, Judge Brashear
accepted. I worked very actively with him. He subsequently
won and he is still on the bench today.
G. Let me stop you there. Judge Brashear is on the county
bench?
A. Yes. that is correct. County Criminal Court.
8. He won a contested race?
A. No. The year that he ran the sitting Anglo Republican
Judge ran against him, in 1982 when he ran. He did have an
opponent that year.
a. I am saying did he win?
A. Oh, yes, he won.
CG. Is Judge Brashear still on the bench?
A. Judge Brashear is still on the bench.
+Q. As a Republican?
A. As a Republican. that's correct.
a. I forgot to ask you, for the record, to identify
vourself. You are a Black female sitting District Judge in
Wright — Direct -— Mow 4-187
ye 1 {|Dallas County; is that correct?
| 2 A. Yes, I am. If you will promise not to print that in
3 ||the paper.
4 THE COURT: We are going to put 1t right under
5 ||ICharles Ben Howell's name.
6 ||BY FMR. FMOW:
7 @. Now. you first decided to run -—-—
8 A. BEixcuse me. I hadn't finished. :
9 a. I am isarry.
10 A. Yes. You had asked me about other Black Judges.
11 8. Right,
12 A. That 1 had personally talked with. And after that on
* 13 ||each occasion that a Black Democrat Judge was subsequently
14 ||appointed after the Republican Judges, the Elack Republican
15 ||Judges had won, 1 went to each of those Judges and
16 ||personally, in addition to the fact that I know the
17 ||Republican party leadership invited them along with other
18 ||Democrat Judges to switch, and I, you know, in each occasion
19 ||1t was indicated by those Black Democrat Judges who had
20 ||been appointed that they felt that they could not do that,
21 ||that they in good faith could not then switch.
22 @. Now. in your 1986 Republican Frimary you had two White
23 ||male opponents; is that correct?
24 A. That's correct.
25 a. And what were their names?
YE AI £7 yg TY TI pe i NE T_T, mt TA PT I pepe a 5 TP ore Tp —— PT — — -. 2 ae erm a ry . wc A
Wright — Direct - Mow
A. In my Primary, the name of one was —— 1 tried to
forget.
tl. It doesn’t matter. You had two.
A. Well, one that, that comes foremost to mind is the one
who ran against me with the same last name and first
initial, that was C. Tony Wright. And the other one escapes
me at the moment. And then I had a General Election
opponent.
&. How did you go about campaigning in the Republican
Primary? Just in summary, what did vou do to get support?
A. I worked very hard and I didn't sleep a lot at night.
But it meant going through the county, it meant going to =a
great number of organizations, going to meetings. I cannot
even give you an estimate of the number of churches and
women's organizations and men’s organizations and
fraternities and sororities that I have gone to, banquets,
etcetera, in addition to placing ads. But primarily, 1
think you will find in my race that it was not so much a
money campaign as a personal effort. 1 felt very strongly
that the key to my race was to get out and have the voters
to know who I was and to meet me personally. I felt that if
they did that there would be no doubt that I would be
elected. And I felt that a paper campaign was not going to
be effective. And 1 still feel very strongly that that is,
that is the key. Any time, I think probably in our society
ne RAR Cre a i BR SEALS i SRP
24
25
Wright — Direct — Mow 4-189
one of the most heinous occurrences, ignorance is, is
racism. 1 think it is because of the fact that we don't
know other people. we don’t get to know them. And I felt it
was very very important that my voters get to know who 1
was, ahh 1 felt if they did. that eiement would be overcome.
G. And you obviously didn't try to hide that you were a
Elack female running for District Judge against two White
males, did you?
A. No. 1 absolutely did not.
a. And was most of this person to person campaign in the
Anglo community, was a large part of it in the Anglo
community?
A. Yes, 1t was.
i. Did you put your little ad or whatever it would be
called in the Republican paper that is mailed just before
the election and goes out?
A. Yes, I did. We paid for that, and I did pay for an ad
in the Republican, the handout that is given.
@. Did you run your picture in that?
A. Yes, 1 did.
8. While I am on that. did Larry Baraka, when he ran, run
his picture in the Republican paper as well?
A. Yes, he did.
a. To your knowledge did Larry Baraka campaign similarly
to the same way you did?
24
25
Wright — Direct - Mow 4-190
A. Yes, he did.
GG. Getting out and meeting people all over the county?
A. Yes, he did. I think you will also find in his race
there wasn't a substantial amount of money spent. it was
primarily getting out to meet people personally.
ti. Do vou recall approximately how much money you spent in
1986, either in total, both Primary and General, or if you
can separate by Frimary and by General”
A. Counsel, quite frankly I cannot recall, but I think if
vou check you will find that it was, it was very very low.
I think 1 really only raised a total of about $50,000.00, 1
know I don’t have a campaign debt, and I think today 1 might
have $600.00 left. And that was from back in "8&4, ‘so it was
not substantial.
Gi. Judge Wright, today do you know of any impediment to a
candidate of any color, of any ethnic background, from
running as a Republican in Dallas County?
A. I know of none, if anyone desires to make that choice.
GG. And I neglected to ask you, you did have an opponent
in the General Election in 1986 as well, did you not?
A. Yes, I did.
+t. And who was that?
A. That was Mr. Brin. Mr. Brin.
GG. And you won that election, obviously?
A. Yes, I did.
For wv nore
24
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Wright — Direct -— Mow 4-191
ti. Now. you have been in the courtroom today and heard
some of the testimony; is that correct?
A. Yes, 1 have.
Ci. Did you as a sitting Judge and a Judge who has run a
campaign have any concern about reducing the size of the
election districts in Dallas County?
Fa 1 do, and I have expressed those. I have some
concerns, both for the —— in terms of the legal community,
the Black community and the voting populous.
Gi. What are those concerns?
A. My concerns —— first of all let me address my concern
with regard to the overall voting populous. I feel that,
and this is something 1 have expressed. I have not heard
the support before today, but this is something I have
expressed from the very beginning. My concern is that the
smaller the districts the greater chance there is of special
interest influence within that district. Judges are subject
to a great amount of pressure. One of the reasons why we
have Federal Judges insulated with their lifetime tenures,
but with regard to District Judges, their jurislittion is
broad. My feeling is that in the, if in fact they are
elected from much smaller districts, there is such a great
chance that the election will be influenced by special
interest groups. I also have a concern with regard to the
legal community in that 1 believe that we have now seen some
24
25
AEP AY) Je se SI A I STN FP TSS a Ty
SR TAA Ae ET 3 OT nasa SU §
Wright — Direct — Mow 4-192
change. I will not deny the fact that racism exists today.
It is alive and it is well. I will say to you, however.
that I think some changes are being made in Dallas County.
I think it is as a direct result of the two party system. I
believe that it has been very very helpful to the county. I
think it has been very helpful to race relations in Dallas
County to have candidates who would step out and run county-—
wide in Dallas County. I think that they have been able to
sensitize voters. 1 think that they have made voters more
aware of the fact that it is not, it is not going to be a
frightening experience to have minority Judges serve. 1%
has been good for the overall public to see Black Judges run
and to compete for office on the same level, same playing
field, and to win by their rules. I think that it has been
—— 1 am concerned with regard to a change, that it will
somehow harden attitudes, that it will in effect set up a
system which is much like hyper—segregation and will only
serve to enhance a hyper—segregated situation in that you
will have a certain number of Judgeships designated as being
for minorities. And conversely you have to look at the fact
that the other side will see the remaining Judgeships as
Being left for the majority race or Anglos. And I sincerely
believe that will harden attitudes. I sincerely believe
that it will cause an increased number of Anglo lawyers to
take a proprietary interest in the remaining Judgeships to
Ol er as re a RC aE a tee FACT a an sty veootar + 3 srncn grr
Wright — Direct - Mow 4-193
the extent that it will lock Black Judges into a certain
number . 1 do not believe that there will be many, iT any.
opportunities under that system for a Black Judge to run in
what is considered as a majority district and win. There 1s
no, in fact what happens is there 1s a loss of
consciousness, there is a loss of guilt. and it is in fact,
I believe it would be the feeling of the majority that those
are the Judgeships for the minorities, they have their
numbers. And those Judges are out there, that is where they
are elected and we don't need any Black Judges in north
Dallas or in the majority areas. Let me also say that 1
think that there are any number of statewide races that
certainly minority Judges should consider. 1 think the
experience of running county-wide both from the standpoint
of raising money, from the standpoint of getting out to the
voting public is extremely important, if they ever intend to
run statewide and to run for any higher offices in the
state, any higher judicial offices in the state.
G8. You mentioned, Judge Wright, that you had some concern
from the standpoint of voters. I don't believe you touched
on your concern from the standpoint of voters, unless I
missed it.
A. Well, my ——
@. Other than what you said about it resulting in a
hardening of attitudes.
24
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Wright — Direct - Mow 4-194
A. Basically 1 don't believe that the system allows all
the Judges to be accountable to all of the voters. I
believe that while at the same time all of the Courts will
be hearing cases involving all of the. all of the voters.
vet and still my concern is that you have a situation where
a Judge, I am not, or any other Judge is not a
representative of a small or any group of persons. I am not
a representative, no Judge is a representative, but a Judge
must be accountable to the public. And my feeling is that
from smaller districts there is the pressure of that
community, it gives a false illusion that in fact you have a
representative in a Judge, and in the State District Judge
that community does not have a representative. That Judge
is there for the purpose. for the sole purpose of deciding
the issues based upon the law, fairness, honesty and
integrity. And I suggest ‘to you again that the pressures
that any Judge feels that are exerted upon him or her during
their usual course of business will only be amplified if in
fact you are voted from smaller segments of the city,
wherein there is a greater chance that they are
representatives of those smaller areas.
+8. Judge Wright, from your campaigning and your knowledge
of the county and the people that live in it, are you aware
of any changes that are occurring with respect to where
minorities of all types live and vote? And 1 include in
24
25
Wright - Direct — Fow 4-195
that Asian, Hispanic and Black voters. Has there been any
changes since 19807
A. Oh, tremendous changes since 1980.
ti. In general what are those changes?
A. In general, well, we have any number of housing
projects which are now under Federal scrutiny. and which
have been partly destroyed and are not in the process of
being replaced. There 1s a system wherein they are ——
THE COURT: I don't think I want to hear about Hr.
Fearce either, so let's go on. You have had changes up
there. Okay. You have had changes in Dallas where the
voters live.
A. That's correct.
THE COURT: B11 right.
BY MR FMOW:
Gi. Are the Asian community and Hispanic community
particularly now disbursed widely throughout the county?
A. That's correct. They are moving throughout the county.
They are moving north and I think that the patterns are
quite different, and I think the statistics are quite
different from the last census. And I think we will be
quite surprised when the new census comes out as to where
many of the, many of the minorities are living because 1
think they are not in the traditional areas that have been
identified in the past.
24
25
Wright — Direct - Mow 4-196
GG. Ms. Wright, based on your experience in Pallas County
politics and your knowledge of people and of how the people
in the predominantly Black areas, meaning 20 percent nt
above vote, in your opinion if there were to be carved out
three sub-districts, as Pir. Weiser proposed and 1 believe 1
showed you his chart showing three sub—-districte in the
generally south Dalias area, do you have any doubt as to
which party would win those races each time there was a race
in those three districts?
A. Oh, I think most definitely the party that would win
would be the Democratic party in those. In the purple areas
that he has carved out?
@. The purple and the black. The purple and blue, that
was his colors.
Aa I am not totally confident that they would be won by
Black Democrats. 1 strongly believe that this system would,
I think it probably helps Anglo Democrats as much as 1t
helps Black Democrats.
GG. Do you think this system, though, would perpetuate the
Democratic party winning at least for the foreseeable future
in those districts?
1A. I am sorry.
@. Do you think that the proposed system of sub-districts
I just asked you about would perpetuate the Democratic party
winning in the sub-districts that I mentioned to you?
rr a m——— ASCE A PA ”
24
25
Wright — Direct — Mow 4-397
A. Yes.
B. Do you think if you ran as a Democrat in 19920 vou could
win county-wide?
A. I don"t, I don’t think so, counsel. That hasn't been
the evidence, I think that it is clear from the voting
patterns that Republicans are winning in Dallas County right
now, Democrats are losing. It 1s clearly a partisan issue.
MR. MOW: I have no further questions. Thank YOu 4
Judge Wright.
| CROSS EXAMINATION
BY MR. CUNNINGHAM:
GC. Judge Wright, you indicated that you were the duly
elected Judge of the 256th District Court by the citizens of
Dallas County, Texas: is that correct?
A. That's correct.
@. That does not include the predominantly Black
neighborhood in Oak Cliff, South Oak Cliff, Singing Hills
area; is that true?
A. Every one of them that voted for me, it does include
them. Anyone who chose to pull the straight Democrat
lever, that does not include them.
@. Isn't it a fact that you got less than 1 percent of the
Black. of the predominantly Black areas?
A. That has been asked of me before, counsel. I would
like to ask you how many precincts does that constitute?
24
25
Wright — Cross — Cunningham
@. Judge Wright. 1 ask the guestions.
A. All right. Counsel, I don't know.
Cl. You have not checked where you ran strong in the
General Election or not?
A. I have. But, yes, I have. But in terms of the
statistics that you have given me I am unfamiliar with
tl. I think you said that you saw little gain in Dalla
County.
A. In 1980.
8. In 19807
A. Yes.
1. And are you telling the Court that all of the gain
that have been made in 1980 have been made through the
Republican party?
A. Since 1982 1 think that they have been made as a r
of the fact that the two party system has been institut
Dallas County. 1 believe that it is as a direct result
we had more Democrats who were ehrointed, after in fact
Republicans, Black Republicans ran and won.
GG. Has the Governor ever appointed a Black to a State
District Judgeship in Dallas County, Texas?
tA. No, he hasn't.
fl. Has a Democrat Governor appointed Blacks to State
District Judgeships?
A. Yes, he has. After some ——
4-198
them.
5
s
esult
ed in
that
TEA Er Se Bh eer Ir
Lim a TEEN
24
25
Wright — Cross — Cunningham 4-199
G8. On more than one occasion?
A. Yes.
a. Would you consider that some gains where a Democrat
appointed some Rlacks?
A. 1 say again, counsel, that they were appointed after
Blacks, a substantial number were appointed after Black
Republicans ran and won and were successful, and they two
party system was working. Yes, he did appoint some more
Elacks in Dallas County. Those were some gains after, and
those were made after 1982.
G. Tell me what Democrat won —— I am sorry. Tell me what
Republican won after 1980, after Joan Winn was appointed
District Judge? What Republican ran and won?
A. Brashear. Not as a District Judge, but that was a
Elack Judge who ran. And then after that it would have been
Larry BRaraka.
@. EBerland Brashear ran and was appointed by the County
Commissioners?
A. That's correct.
@. Is that correct? And he was a Democrat?
A. And he was a Democrat, that's correct. And he
switched?
Ci. And when he ran he ran as a Democrat, didn't he?
A. Initially.
a. And won?
FEE I er:
Wright — Cross — Cunningham 4-200
A. Initially he did.
BG. Now. other than Judge Brashear can you tell me of
anvone else, and when 1 say anyone else 1 am talking about
Republicans?
A. Right.
BG. And specifically Black. that ran and won betore Judge
Tinsley was appointed, before Judge H. Kon White was
appointed, before Judge Winn was appointed.
A. Judge Larry Baraka ran and won in 1984, 1 believe.
@G. That's right.
A. Two years later. I believe Judge Tinsley has served on
the bench since then.
@. Judge Tinsley hak already been appointed. hadn't he?
A. I don't recall.
a. Do you know whether or not Judge H. Ron White had been
appointed and was sitting?
A. Judge Ron White was appointed in ‘83, yes.
8G. And at that time no Republican had run and no Black
Republican had run and won, which would lead to -—-—
A. As a, as a State District Judge?
BB. Yes, State District Judge. That is all we are talking
about.
A. That's correct.
@. You indicated that you talked with Judge Winn about
switching to the Republican party in 1982 while she was a
A Se A pp SE
24
25
Wright — Cross - Cunningham 4-201
sitting District Judge; is that correct?
A. That's correct.
G. Judge Wright, did you know that Judge Winn ran in 1980
and lost?
A. Well, counsel, it was in. it would have been in the
same year that Judge Brashear ran and won. That was the
same year, counsel.
i. You gave me the year, you said 1982, and that is what
vou told the Judge.
A. Well, it would have been the same year that they ran.
I believe you might be correct, it was a presidential year.
@. So you never talked with Joan Winn when she was a
sitting Judge ——
A. Oh, yes, sir.
3. And said Ron?
A. Oh, yes, sir, I most certainly did. I most certainly
1. Except it was in 19827
A. It would have been in the year that she ran and lost,
prior to er Tosing.
@. The overtures that you said have been made by the
Republican party to Democratic Judges, that only occurred
after they had been appointed; is that correct?
A. They weren't Judges before they were appointed.
Q. Were overtures made to H. Ron White before he was
Wright — Cross — Cunningham {4-202
appointed”?
A. I was in office with H. Ron White. I frequently asked
H. Ron White, 1 told him I thought he would be an excellent
Republican.
@. When was this?
THE COURT: I am having a little problem. Judge.
What is an e)cellent Republican as opposed to an excellent
Democrat?
A. I think that Mr. Cunningham knows H. Ron White. and 1
think he knows to what I make reference.
BY MR. CUNNINGHAM:
@. You =till haven't answered my question. When aid this
happen?
A. _ When did that happen?
€. Yes, ma’ am.
A. It would have been in, prior to —— he was appointed in
‘83, as 1 was appointed in ‘83, so it would have been ——
Q. When you say ‘83, you were appointed as master?
A. Right.
@. Not a District Judge?
A. No. I never was appointed as District Judge. I ran
and was elected as District Judge. I was appointed as a
master in ‘83. And Judge White was appointed in '83, so it
would have been prior to the time we were in the office
together, "81, ‘82.
NIN Sr A ER Ya So SE
24
25
Wright —- Cross - Cunningham 4-203
a. In answer to your counsel, you said that you had some
concerns about reducing the size of the district, and I
understood you to list three. The first one was legal; is
that correct?
A. Yes.
Gl. You understand that this case is not for the benefit of
the attorneys, the Black lawyers; you understand that, don't
you?
A. That's correct.
Q@. That it is about voters”?
A. That's correct.
@. And voters who have the right to say who will represent
them?
~AB. Yes... Yes.
&t. Black voters particularly?
A. That's correct.
a. In other words, the vote, the Black voting populous
that is concentrated in about 6% precincts in south, south
Dallas, South Oak Cliff and Singing Hills, would you agree
with that?
A. If those are the statistics that you are using counsel.
@. Do you know where the majority of the Blacks in Dallas
currently are concentrated?
A. I believe in the Oak Cliff, south, yes.
G. When you say Oak Cliff south, is that just one or is
Wright — Cross — Cunningham 4-204
= 1 |{|that two? There is an area known as south Dallas; is that
| 2'llcorrect?
3 A. Yes.
4 G8. What is south Dallas primarily composed of racially?
5 A. Primarily Blacks.
6 GG. And South Bak Cliff?
7 A. Yes.
8 CG. And the Singing Hills area?
9 A. Yes.
10 @. And then you said there is a greater chance of special
11 ||interest prevailing in a smaller district?
12 A. That's correct.
13 QQ. Okay. That is true whether you run county-wide,
14 ||statewide, or the nation; isn’t that true, Judge Wright?
15 A. I think to a lesser degree as the size increases.
16 Q. But special interests can rear its head in a county-—
17 ||wide race; is that true?
18 A. Most definitely.
19 @. Do I understand you to be saying that since —— no, if
20 || there are smaller districts and with the name identification
21 ||lyou have and the work that you have done and your extensive
22 lvita, that if you were in a district that was not in the
23 ||predominantly Black neighborhood that you could not win?
24 A. Counsel —
25 GG. Ma'am, yes or no, please.
EN BR I TO Fo TA EA Tr, 7 Oy MMT, TM my EY SR Smeg I AT eT pe er me ep Erp. I a SR meet RL
Te NS FT MEI Xe me YAM pn 4
24
25
Wright - Cross — Cunningham 4-20
A. If you want a ves or no, I don't know.
BG. Then what is this hardening of the attitudes that vou
are talking about?
A. That is exactly what I was talking about. counsel.
a. If vou don't know whether or not vou can win, how do
vou know the attitudes are going to be hardened?
THE COURT: Let her finish her answer, please,
before you interrupt. And let him finish his question.
A. Counsel, as I stated to you, if you believe that the
attitudes, obviously this lawsuit is about hardening of
attitudes and 1 am suggesting to you, obviously you believe
that, or otherwise this lawsuit wouldn't be here. You
believe that Elack voters cannot elect their persons of
choice, and they cannot do so county-wide. And I am
suggesting to you that if in fact that is the belief at this
time, I am suggesting to you that setting up smaller
districts, setting up districts wherein you have a
designated area that is known as a minority district as
such, I am suggesting toc you that conversely it is easily
viewed that the other areas are majority areas. And, ves,
think it would be extremely difficult under those
circumstances for a Rlack Judge to go into what is
considered to be a majority area at that point and run and
win. I think if you think this is difficult, I think that
is more difficult.
=
ol
I
24
25
Wright —- Cross -— Cunningham 4-206
a. You do understand that this lawsuit is not about a
hardening of the attitudes.
A. Well ——
Gl. Do you understand that, Judge Wright?
A. What 1s 1t about, counsel, other than the Democrat and
Republican parties in Dallas County and the fact that
Democrats are losing and Republicans are winning, what is
involved in Dallas County?
@. This is one time I get to ask the questions. This is
not about Democrat and Republican, it is about EHlack voters
who are not being able to elect persons that they want.
where their vote ise being diluted; do you understand that,
Judge Wright?
A. Counsel, in Dallas County I am suggesting to you that
if they were to vote across party lines and if they were to
start voting not straight Democrat lever, and in fact start
voting without regard to party, that that would not be the
case. They could be a tremendous swing vote in Dallas
County if all of a sudden that large voting bloc were to
vote in the Republican Primary.
Gi. In other words, you want us all to come over there with
Ae. I would love to have you. I have invited you on more
than one occasion.
a. You have never invited me.
24
25
Wright —- Cross — Cunningham 4-207
THE COURT: Somehow I get the feeling there has
been a little hardening here.
MR. CUNNINGHAM: Extremely, Judge.
BY MR. CUNNINGHAM:
@. Do I understand —— well, did I understand you to say
that in smaller districts there is a ioss of consciousness”?
A. No, counsel.
CG. A loss of something about guilt?
A. Yes. 1 suggested to you that right now I believe that
the —— 1 suggested to you that there has been a long history
of racism, I suggested to you that there is some sense of
consciousness, some sense of awareness, even some sense of
guilt in the Anglo community with regard to past patterns of
discrimination. What I suggested toc you was that if in fact
it is perceived that the Black community has been given
their 40 acres and a mule, I suggested to you that at that
point attitudes, I believed that attitudes would harden. I
sincerely believe that that guilt, they would truly believe
that the Black community had been, had received their share
of the judicial races.
@. And that therefore outside of those smaller districts a
Black could not win; is that what you are saying, or other
districts”?
A. I think it would be very very difficult, ves.
J .
G. Then you are not saying they couldn't win, it would
24
25
Wright — Cross -— Cunningham 4-208
just be harder than it would in a district where they may be
in the majority: is that what you are saying?
A. Counsel, ves.
GG. You are not saying that, Judge, if there are single, if
Judges are elected from single member districts that the
person elected would not be accountable? You are not saying
that, are you?
A. What other method of accountability is there in an
electoral process other than when yo vote for someone.
Yes, I am saying that there would be little accountability
of Judges, who are in for instance Anglo districts to the
Black community. Very little accountability. none.
tt. And you are saying that that is accountability to you?
A. I believe that it is. I believe that they have the
choice.
GC. And do you believe that you are accountable to the
majority of the Black voters in Dallas County, Texas?
A. I certainly do. I most certainly do.
8. And if the majority of the Black voters decided that
they did not want Carolyn Wright as Judge of the 256th
District Court they couldn't vote you out, could they?
tA. What, today? Of course. they could.
a. fine we
A. There are enough Republicans who would want me out that
if they voted in my Primary they most certainly could get me
AAT TT WEY TT
24
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Wright — Cross -— Cunningham 4-209
cut.
Gl. 1 am not talking about the Republicans. I mentioned
Black voters.
A. You are talking about Black Democrats. You have to
distinguish yourself.
@. Are you saying that every Black who voted against you
is a Democrat?
A. Oh, no.
@. Are you saying every Black that does not vote in the
Democratic party is a, I mean vote in the Republican party
is a Democrat?
A. I hope not. 1 hope there are some independents.
Q. So how do they, how do the Black voters, whatever they
are, make you accountable to them?
A. They vote.
@. Okay. And when the White majority outvotes them?
A. Counsel ——
@. No, ma'am, just answer that, please.
A. The White majority does not vote, outvote them if they
vote in the, if they are voting in the race. I mean what
presumes, you presume that every Black in Dallas County
would vote against me given the choice. I quite frankly
don’t believe that.
OQ. Look at some of the exhibits in evidence, and it so
happened, 90 percent of them voted ——
24
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Wright - Cross — Cunningham 4-210
THE COURT: Let him finish the guestion.
BY MR. CUNNINGHAM:
@. S90 percent of them voted against you.
A. You say that they did, I say that they didn't vote
against me. I say they didn't even know where 1 was on the
ballot. They voted straight Democrat lever. 1 suggest to
you, counsel, that if my opponent's uncle was on my steering
committee I hardly believe, and worked very hard to elect
me, I strongly, I have some difficulty in believing that the
Black community knowingly voted against me in that
percentage.
@. Do you remember your deposition being taken?
A. Yes, 1 do
a, Do you remember your testifying that you had campaigned
in all the areas in the county of Dallas?
A. Yes.
@. You spent almost 25 percent of your time in the ERlack
community?
A. Yes.
Q. Wouldn't you have expected at least to receive —— well,
strike that. Some of those people knew that you were
Carolyn Wright; is that true?
A. And many of them voted for Carolyn Wright.
@. But not in the amount of time, say with the amount of
time that you spent there.
Wright - Cross — Cunningham 4-211
A. Counsel ——
@. For example, 25 percent, you spent 25 percent of your
time there and you get less than 5, less than 1 percent of
the Black vote.
Ff. Counsel, and I think that is further evidence that they
have voted straight party. I think that if vou will look at
the number of lever polls you will find that will
correspond with the vote that you are giving.
Gl. You do not think, you do not think that another
possibility might have been that you turned them off, they
were not satisfied with what they saw in you? That could be
possible, couldn't it, Judge?
A. Counsel, I don’t know.
GG. Yes or no, Judge. please.
A. I don't think so.
@. You don’t think so, but it could be a possibility?
A. I don't think it is.
@. Do I understand you to be saying that if Judges are
elected from smaller districts that they are not going to
decide the cases upon the law and they are not going to have
integrity?
A. No, I didn’t say that. I said there is a greater
chance of special influence, special interest influence.
And I repeat that.
a. I think you have already said that it true whether you
Wright — Cross — Cunningham {4-212
run county-wide.
A. Counsel, you didn’t understand me the first time, but
that is my answer.
GQ. Your answer is that there is a greater chance?
A. Yes.
Gl. Okay. But thee is also a chance that the same special
interests could influence a Judge's decision if you ran
county-wide; is that true?
A. Again, I suggested to you that that is, because of the
fact that you have a smaller area in which to run you have a
smaller number of people to reach, and in fact if you have a
larger area that there is less chance of it.
@. But there still is a chance?
A. Yes, yes, yes, Yes.
GG. Do you have any facts to back up your theory?
A. Probably as many as you brought before this Court.
@. You have to answer my questions. Do you have any facts
to back up your theory?
A. No, counsel.
@. You don't have any facts to back up your theory about
hyper—-segregation, do you? Yes or no, Judge?
+A. My opinion, counsel.
@. You don’t have any facts to back up your opinion about
hardening of the attitudes?
A. My experience and opinion, counsel.
24
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Wright — Cross — Cunningham 4-213
MR. CUNNINGHAM: Pass the witness, Judge.
MR. MOW: It will be short.
REDIRECT EXAMINATION
BY MR. MOW:
@. Judge Wright, I neglected to ask you, of the 12 general
races for judicial District Court in 1986, who won the
highest vote count?
A. I did. counsel, by a higher percentage than the
Governor.
G. When Mr. Cunningham asked you about the hyper-—
segregation, did you in fact base that on some readings you
had seen on studies of major cities here recently?
A. That's correct. That is alse correct, there is studies
in hyper—segregation in a number of major cities wherein
there was a suggestion as a result of the fact that there
were large numbers of minorities who had not, in areas that
were not integrated. That situation had been created,
hyper—segregation, Nadanse of the fact they had not moved
out, moved beyond those areas. There was a great deal of
housing segregation, etcetera.
MR. MOW: Thank you very much Judge. I have no
further questions, Judge.
MR. CUNNINGHAM: One question.
RECROSS EXAMINATION
BY MR. CUNNINGHAM:
24
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Wright — Recross —- Cunningham 4-214
G. The readings that you were talking about, hyper-
segregation. were they talking about judicial races?
Af. No, counsel. They were just talking about patterns of
discrimination generally.
MR. CUNNINGHAM: Thank vou.
THE COURT: Thank you. You may step down.
Sometimes 1 feel 1 am running & Family Court. Call your
next witness.
MR. MOW: We will call Mr. Tom James.
(Witness sworn.)
THE COURT: Have a seat right over here. please.
TOM JAMES, WITNESS, sworn
EXAMINATION
BY THE COURT:
G. Tell me your name. where you live and what you do.
please.
A. My name is Tom James. I am an attorney in Dallas,
Texas. I am chairman, county chairman of the Republican
party of Dallas County. I have been in the private practice
of law primarily on the civil litigation side since 1957. I
served two terms in the Texas House of Representatives from
Dallas as a Democrat, became a Republican in 19463 and have
been chairman of the Republican party since January of 1987.
THE COURT: Go ahead.
DIRECT EXAMINATION
24
25
hJ
[I
Ln
James — Direct -— Mow {4—
BY MR. MOW:
@. Can you also tell the Court, Mr. James, what your
activities have been in the Republican party and in the
election system in Dallas County say in the past 10 to 15
years?
A. In 1982 1 was designated or appointed election
inspector by the Secretary of State. In 1988 1 was again
appointed an election inspector. I served in various
campaigns in Dallas and in north Texas as well. I was
Judge Wright's finance chairman when she was elected last
time. Historically was the chairman of the campaigns of
Frank Crowley. most recently the County Judge of Dallas
County who died in office.
G. Would you say you became familiar with partisan and
non-partisan politics in Dallas County over the past 10 or
15 years?
A. Yes. In 1964 1 omitted to say that I was Republican
nominee for Judge of the 95th District Court in Dallas
County.
Qa. In the course of your work with respect to elections
and with respect to the Republican party as well as
campaigning you have done have you met with any number of
groups in a large number of precincts around the county in
Dallas in the past five to seven years?
A. 1 have.
24
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James — Direct — Mow 4-216
td. Do you continue to do that as party chairman now?
A. More so now.
GG. Have you become generally familiar with how judicial
elections are operated?
A. I have.
. Now, there have been statements made in testimony that
the Republican party has not made any effort to involve the
Black electorate in the elections. Is that true, Fr. James?
A. That is untrue.
@. What efforts have been made in Dallas County?
A. There has been, since 1980, a very strong Black
Republican council, an organization that is made up of Black
leadership in Dallas County. Since I was elected it has
been strengthened. -The second organization is primarily
made up of precinct chairmen and precinct workers in the
southern sector of Dallas, that has been formed. I meet
with them on a regular monthly basis. The recruitment of
Black candidates for a variety of offices has been
accelerated and we have continued to do that. Recently
appointed minorities to the county bench where vacancies
were created, and it is an ongoing effort. There are more,
we have more Black volunteers in our headquarters in the
central part of the city than we ever have had before. Ue
have more membership, particularly those who are living in
the Republican areas, minority members both Hispanic and
PE RR ET hI Geen
James — Direct —- Mow 4-217
Black in the various organizations such as the Women's Club,
Men's Club, assemblies and forums. There is some 40 of
those organizations in Dallas County, representation from
the Black community has dramatically increased.
a. If somebody were to base a study strictly on 1980
census Tigures as to where EBlack citizens of Dallas County
live and were active in either voting or in political
parties, would that be an accurate representation today of
where the Black citizens live, in your opinion?
a. Why not?
A. Because of migration into Dallas. many many Black
voters from other areas, due to relocation of major
companies better jobs has given Black voters an option to
live where the housing is newer and they have done that.
Because of busing. many Hlack families have become close to
schools in other areas of the city and opted to live in
those areas because they can. The rent supplement program,
particularly in the last two years, has relocated literally
tens of thousands of Black voters from Oak Cliff and south
Dallas areas into the areas where I live. The last three
neighborhoods I have lived in —— I am married to a realtor
so she sells our house a lot, only house she can sell —— but
the last three neighborhoods 1 have lived in. which are
fairly affluent neighborhoods, 1 have not had just one or
24
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James — Direct -— Mow 4-218
two neighbors that were Black, in each of those
neighborhoods there has been a strong representation. I
live in an integrated neighborhood now in north Dallas,
what is called far north Dallas, out north of LBJ. So there
has been a tremendous relocation. I don't think the 1980
concentrations are valid.
GG. Do you, Mr. James, know of any impediment at all to the
Black electorate participating in the Republican party in
the Primary or in running for office.
A. There are none.
Gl. Now, there was some statement about some comment being
made on Judge Larry Baraka’'s religion. Were you present
when that was in testimony?
A. When Judge Entz testified about that, yes.
Gi. Are you familiar with that incident?
A. Yes, I am.
G. Can you tell the Court what happened and what you did.
A. Judge Baraka was running for reelection in his, in the
Republican Primary and there was a young woman who was a
very well qualified criminal attorney who filed against him.
In the latter stages of the campaign I found out that there
was a card or a flyer going to be sent out that made some
reference to the fact that he was a Muslim and it also made
reference to the fact that she was a Sunday school teacher
in a Protestant Church. When I received, from a source 1 no
24
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James — Direct — Mow 4-219
longer recall if it were not an anonymous source, a copy of
that I called his opponent and advised her that I thought
comments on religion were outside the bounds of fair
comments and unfortunately she didn't follow my advice.
When she published it by mailing it out to a broad segment
of Primary voters in Dallas 1 publicly condemned that
action and supported Judge Baraka.
@. Now, there have been placed in evidence certain letters
from the, I think from the Department of Justice is who they
came from, I don’t have the letterhead, relating to certain
incidences in Dallas County. I want to ask you about those.
One of them refers to the placement of absentee voting
places in Dallas County. Are you familiar with that?
A. Not familiar with the ternEin? tne letter, 1 am
certainly familiar with the situation.
G. And that occurred back in 1982; is that correct?
A. No. That was 1988.
a. I am sorry, the absentee voting places was in 1988.
How do you happen to know what happened with respect to
absentee voting places?
A. I sat on the board or commission that is charged with
the responsibility of making recommendations to the County
Commissioners’ Court. It is statutory, the county chairman
of the Democratic party, the county chairman of the
Republican party, the County Judge, the elections
24
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James — Direct — Mow {4-220
administrator. the county clerk and either the ta) assessor-—
collector or the sheriff, it varies one on one board and one
on the commission and I am not clear which is which.
G8. And that group makes a recommendation as to the
placement of absentee voting places to the County
Commissioners”
A. Well, it works this way. We have an elections
administrator who, contrary to many counties where the
county clerk does that. in major Metropolitan counties they
can employ an elections administrator. He makes a
recommendation to the elections board who in turn approves
or disapproves and that recommendation goes to the County
Commissioners. It can go to them whether we approve it or
not. But it goes to the County Commissioners who then
designate the absentee voting locations.
G. So after these absentee voting places were approved by
your group they were then taken to the County Commissioners?
A. Yes. Mr. Sherburt recommended the locations. We
unanimously approved them. including Sandy Cress. my
Democratic counterpart. It went to the County
Commissioners’ Court. They unanimously approved. including
County Commissioner John Wiley FPrice, who represents this
Black area on the County Commissioners’ Court.
8G. And then after that the Department of Justice letter
came?
24
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James — Direct - Mow 4-221
A. No. After that the Rlack community was not responding
to the FPresidential election and an effort was made to
create an issue. The way it came about was that Sandy Cress
called me. said we want to open up another absentee
balloting place at Martin Luther King Center. I said it
sounds great to me, we need to open up one to get the
pressure off University Park because we had people wrapped
around the block. And he said it sounds fine. Go I had no
objection, he had no objection. We opted to open it in
North Park Shopping Center, which he agreed to. Later on,
without any further contact with me, Fr. Cress is on the
television, on the radio. talking about we won't let him
have his, his Martin Luther King absentee voting place. And
he also called North Park and said if you allow Republicans
to have, if you allow an absentee voting place, it wasn’t
Republican, if you allow them to have an absentee voting
place you are going to have pickets out there. Well, they
called the elections adninistrator and told him he‘'couldn’t
have it there.
THE COURT: Who is they?
A. They, meaning the people that run North Fark Shopping
Center. They said we don’t need that. And so then we got
into — he said. well, we just want to open Martin Luther
King Center. I said, well, that doesn’t sclve our problems
at University Park place. Ultimately after a lot of
£2
RT eT gr TY ey YT NE I, STR I mmr mem ney
James -— Direct - Mow {222
hollering, yelling and screaming, which was supposed to
carry the impression to the Black community we didn’t want
them to have an absentee voting place and they had better go
vote anyway, we opened one in an obscure junior high school
out in northeast Dallas and they opened, and also opened the
one at Martin Luther king Center. And we voted more people
in the obscure place out in the northeast corner than they
did down at the Martin Luther King Center.
Gl. Was that what is behind this letter that has been
introduced in evidence?
A. Martin Frost wrote a letter, Congressman Martin Frost
wrote a letter and John Wiley Price decided he really didn't
mean to vote that way. Sandy Cress decided he didn't mean
to vote that way. The next thing you know we had something
on the news. Mr. Young back there wrote a lot of wonderful
stories about it without checking the facts. He did a lot
of that.
@. Now, back in 1982 are you familiar with two other
incidents that the Department of Justice made comments on,
namely comments about a shortage of balance and a comment
about election signs being placed?
tA. Yes. I was an election inspector if you remember
during that election.
G@. Now, with respect to the shortage of ballots in 1982,
who made the decision as to how many ballots were to be put
24
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James — Direct - Mow {4-223
in each precinct at the polling place?
A. The elections administrator.
@. And who was that at that time?
A. I1t was Connie Drake, who later became Connie McCormick,
who was appointed by the Democrat Controlled Elections Eoard
and Elections Commission and the County Commissioners’
Court.
Q. Did the Republican party have anything to do with where
the ballots were going in 19827
A. None whatsoever.
BB. Now, with respect to the election signs matter, that is
also in this letter, were there certain warning signs placed
around polling places in 19827
A. Yes.
0. And what was the reason for that? Did the Republican
party, did members of the Republican party place those
signs”?
A. 1 think members of the Republican party, members of the
Dallas Sheriff's Department and at least some of the sitting
Judges placed those signs.
G. What was the reason for it?
A. At attempt to tighten ballot security.
BB. And why, why was it felt there was some need to tighten
ballot security?
A. Well, in the previous election there had been a number
EF oh A Am Sal ni Ea eh Rec SA a EE TAR TT A I BT NE CR 4 TW Fa aT
FI Tan PRAT LT fr TATE J . : 7 ESE . SETHE rf Leki :
James — Direct — Mow 4-224
1 |jof Democrat election Judges who had been charged and
2 llconvicted with violating the elections laws and their answer
3 ||lwas we didn't know we were violating the law. The energetic
4 ||lballot security chairman for the Republican party 1n Dallas
5 [County apparently decided to instruct them so they went out
6 ||and got all these signs printed up and went up and tacked
7 | them around on all the precincts, I mean all the precincts.
8 || They were on my precincts in north Dallas, they weren't just
9 (in the Democrat strongholds. They were put up on all of
10 {| them. They didn't last very long. John Wiley Frice, that
11 ||was before he was elected. he was also an election Judge. 1
12 ||mean an election inspector with me, and by 10:00 they were
13 ||lgone. So they didn't stay around long.
14 GG. Were signs placed all over the city?
15 A. Yes.
16 MR. MOW: Thank you. I have no further questions.
17 || Your Honor.
18 THE COURT: I think the Senate heard about that.
19 Fa I think so.
20 MR. CLOUTHMAN: Yes. they did. Hoth Texas and the
21 ||lUnited States Senate.
22 || # CROSS EXAMINATION
23 ||BY MK. CLOUTHAN:
24 GQ. Mr. James. how are you?
25 A. Fine.
RN FCPS SE I AIT AT J 3 N17 40 MIL ZU OI £30 TR TL mR TTR we A my TY Sp ae Tree ay mes
James — Cross — Cloutman 4-225
® 1 @. Let's talk about that matter since we are on it. You
2 |indicated those warning signs were placed all over the
3 ||county?
4 A. Yes.
5 3. You disagree with the finding of the Justice Department
6 ||rather they were in predominantly Black precincts; is that
7 Ilright?
# A. I disagree.
9 @. Do you recall what the signs looked like? Is that what
10 ||you saw in your precinct, warning, you could be imprisoned?
11 A. I saw them all over the county, that same sign.
12 i. How many precincts did you visit on that day?
13 A. Frobably 40.
14 GCG. We had over 400 that year, didn't we?
15 A. FProbably not quite 400, maybe so. We have 470 now.
16 @. Some of the people who placed those were in fact
17 ||Kepublican appointees of Governor Clements to the Dallas
18 ||District bench. were they not?
19 A. I don"t know. I really don’t.
20 GC. You don't know that Judge Craig Enoch was one. Judge
21 ||S1id Fitzwater was one, Judge Pat Gill was one, Judge Jack
22 ||Hampton was one, all Republican appointed Judges sitting in
23 [|[Dallas?
24 A. I don't recall Jack Hampton was appointed, no, sir.
25 @. Are you denying he was”?
4
RO ES TN Ty MT ST AR ATI LT
Nr
24
25
bf TP 3 TNE 2 ee RS AE 5 EON Cl SAT aR I
James —- Cross — Cloutman 4-226
A. I said 1 don't know.
a. I take it your investigation of the facts did not lead
vou to find out which Judges and what party they were
affiliated with engaged in such activities.
A. I don't believe there is a thing in the world wrong
with the activity.
GB. Despite what the Justice Department found?
A. Despite what the Justice Department would postulate.
@. Do you understand that process. the process by which
their letters were issued?
A. Yes.
&. Have you read the Code of Federal Regulations and that
process that leads to those letters? .
A. I know that Judge, Congressman Martin Frost contacted
them on that occasion also and got the letters. Yes, 1 am
familiar with that process.
@. You are telling me Martin Frost is the only reason
those letters were written?
A. He was the major reason the letters were written.
@. The facts had nothing to do with it?
A. There is nothing wrong with the facts. Warning signs
were posted. The only thing that was wrong with that
project was that the law does not allow anyone other than
the elections Judge to post signs.
@. That is one thing. And there is also a law called the
ER ET TL Cy ET Ta LTT A rere £7 Dh meng TT - Cn rr I ap ST TL TCT TOT an ye rp pao
James — Cross — Cloutman {4-227
® 1 ||IVoting Rights Act that requires pre—-clearance, does it not,
2 lof any change in voting procedures at the voting precinct?
3 A. That is not a change in the voting procedure, in my
4 || judgment.
5 GC. You do disagree with the Justice letter then?
6 A. I disagree with both of the Justice letters we have
7 ||talked about.
8 Gl. Okay. Would you deny that the Republican party had
9 lanything to do with the posting of those signs?
10 A. I would insist that the Republican party posted the
11 ||signs.
12 G. All right. So you are proud of that fact?
13 A. No, I am not proud of it or ashamed of it. I am just
14 ||reciting, responding to your question.
15 BG. All right. And do you deny that they were posted
16 ||predominantly in Black precincts in the south part of the
17 ||county?
18 ||. A. I deny that, yes, sir. That is not true, never been
19 ||true. And people like you keep perpetuating that, but it is
20 ||not true.
21 GG. On what basis do you deny it?
22 A. I deny it because I was all over that county and they
23 ||were in all of the precincts.
24 @. Have you seen a list of precincts in which they were
25 ||posted?
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James — Cross -— Cloutman 4-228
A. I don't think such a list exists.
8. Do you know David Mosely?
A. Sure.
GB. And he was in charge of that. was he not?
A. I don't know that.
GG. Who was in charge of ballot security?
A. I do not know. I took great pride in not being very
active in the Dallas County party up until in a mischance 1
became its chairman.
@. You did know Judge Fat Gill at the time?
A. Yes.
GG. And if he supplied a list of those precincts would you
be in a position to dispute that list?
A. I probably would dispute the list, yes.
B. SQ
A. I don't think that that operation as it was reported
to me was quite as organized as you seem to think it was.
a. I didn't suggest organization, just I suggested they
were posted in predominantly Black precincts. I take it —
A. They were posted in predominantly Black precincts. The
problem with that statement, Mr. Cloutman, is that it
assumes that is the only place they were posted. They were
posted in predominantly conservative and Republican and
Anglo precincts as well. They were posted everywhere.
G. Let me try again. You are not telling the Court they
ATT TTR TY TART RT TIS a ana SA —-
James — Cross — Cloutman 4-229
3 1 ||were posted in all 4Q0 precincts, or are you?
2 A. Well, I am telling you they were posted in most of the
3 300 pracincte. 1 know they were posted in the 40 or so 1
4 [|looked at, and that included a lot of precincts that were
5 |lnrot in what vou all are calling predominantly Hlack
6 ||precincts.
7 @. So to answer to the question, the right way this time,
8 ||are you saying the predominance of posting was not in the
9 ||Black precincts?
10 A. Exactly.
11 BG. Now, with respect to the allocation of absentee
12 ||balloting places, how long before the close of absentee
13 ||balloting was the Martin Luther King's Center finally
14 opened, the one Black polling place? A
15 A. Hy goodness, there were numerous Black polling places.
16 || There were, there were three within five miles or less of
17 || the Martin Luther King Center. You didn't need it there.
18 ||Mr. Cloutman, that needed to be in Singing Hills. The
19 ||Martin Luther King area was well served by both the
20 ||[downtown, the Oak Cliff sub-courthouse and the one on the
21 ||south, but where you needed that was down in Singing Hills.
22 [| They were the neglected people. Nobody ever asked for that.
23 GG. You didn't put one there either, did you?
24 A. it wasn't for me to put it anvwhere. I agreed that he
25 ||lcould put 1t, I told Sandy Cress that I was in favor of
TEUANTESAS TOYA bps TR TR WTEC PRO a CN Lit ets ws To EE
James — Cross — Cloutman
having all the absentee polling places we could have,
including Red Bird Mall. And he admits that.
Gl. I don't think he is here to talk, is he?
A. Well, he and I, this has not been an undiscussed
subject. I am sorry if 1 seem to get a little agitated. but
it has, these little fables have a life of their own. They
keep coming back, and that wasn’t the facts at all. What
happened is that they found out that they were going to get
Jesse Jackson to come in to —— well, two things were going
to happen at Martin Luther King. They were going to have
this festival. They thought, well, we will have a lot of
people in here, let's open up an absentee ballot. Do you
know when we found about i1t7? - Two days before the festival
they wanted to suddenly open up an absentee balloting place
there. which is not a simple thing if you are on the punch
card system. The other thing. they found out, they finally
got Jesse Jackson to say he would come in there. They said
good gosh, he is going to speak out there on the grounds af
the Martin Luther King Center, we have got to get that thing
opened. And here is Hrace Sherburt, the elections
administrator, doing everything he can to get it open. You
mave to get people together, take equipment, you have got to
take trained people. We call it absentee balloting, it is
extended voting is what it is. And you have to take
somebody from some place else because you just can’t stop on
I} >
James — Cross — Cloutman 4-231
one day and staff something with untrained people. We sent
people down there. 1 did, I sent one, some of our veterans
precinct chairmen down there to help them run it because
they didn't know how.
CG. All right.
A. Nobody tried to keep anybody from voting down there.
@. Let me ask the question, Mr. James. How long before
the close of absentee balloting was it opened at Martin
Luther King?
A. It was opened four days after they asked for it to be
opened. Now then, how far before that I don't know.
8. Three or four or five days”?
A. It was within a week or so of the time that the
balloting was going to close before it was ever brought up.
8. You don't know how long it was opened before the
balloting closed; is that your answer?
A. It was opened on that Monday. and 1 don’t, if I had my
calendar 1 probably could.
GG. Well, the balloting was, the general balloting was the
following Tuesday, was it not? Absentee balloting closes on
Saturday, does it not? Five days, wasn't it?
A. You just have to take my answer, I don't recall.
@. Okay. By they way, no absentee balloting place was
opened in the Singing Hills, was it?
A. Never asked for.
Bn so Se eT ET he a ur on era SR - eps eT on ER EE PER To ST EE 12
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James — Cross — Cloutman 4-232
a. Mever opened”?
A. Never asked for, never opened.
G. That is a Black area too, isn’t it?
A. Very Black area. Good Republican Black area.
1. Why didn't vou cpen one there?
A. Well, it just simply had never —— what we based ail of
that on, according to our election administrator, was what
had worked before and they had had an absentee balloting
place in Martin Luther King Center down there in an election
before that and there was just no turn out for it. and it
is a fairly expensive thing, according to them. in
retrospect, hindsight, it wouldn't be expensive at all. But
we, all of that, nobody decided that we had offended any
area until after the fact.
Gi. And I know you disagree with the Justice Department
findings in that regard, too, don't you?
A. As long as you apply those findings retrospectively and
include Sandy Cress in there and John Wiley Frice in there.
and don't try to make me a racist because I didn't know
people were going to want to vote down there when Jesse
Jackson came to town, I don't have any trouble with that,
that letter and I don’t have any trouble with Mr. Young's
story. It is when somebody tries to make out, looking back
on this thing that it was some racist plot to keep them from
voting. I can make exactly the same case, there was a
20S A oi NC at LE Se SY hati
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James — Cross — Cloutman 4-233
Democrat that tried toc jam everybody up in a small voting
place, deny them the right to vote out there in northeast
Dallas. Just as ridiculous.
Gi. That 1s a place that out polled Martin Luther ing ik
Center, didn’t it?
AN It sure did.
G. Now. you 1 think told me during your deposition. I will
try to shorthand this so we can move along, that when I
asked why you thought there was not more of a Republican
presence when I identified ——
A. I am sorry. 1 can't hear you.
@. Can you hear me how?
A. bBo ahead.
a. I am not quoting from the deposition. just paraphrasing
Tor vow. You told me, 1 believe, when I asked you why there
wasn't more of a Republican presence in the ERlack area
precincts, you gave me some reasons of history and tradition
and also there hadn't been until recently an effort made to
go into those preciricts and educate the people as to the
Republican party. Is that a Tair summary
A. Yes.
1. All right. And in part there hadn't been precinct
conventions held in all the precincts because of the lack of
voter interest or a lack of space for those precinct
conventions to be held in all —
a Fo Se Rs vA Cl 2 gas
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James — Cross — Cloutman 4-234
A. I don't recall our discussing precinct conventions at
all.
@. Voting precincts then. I am sorry. You combined
precincts as opposed toc having voting places in all the
precincts in south Dallas, in the Elack area precincts: do
you recall that?
A. I do recall the testimony, yes.
@. All right. And you assign those as all part of the
reason why there may or may not be as much Black involvement
in some Black area precincts as I identified them to you in
the Republican party Primary; is that correct?
A. Well, I am uncomfortable with you taking all of that
testimony and paraphrasing it to that extent and putting it
aie the record. There are very specific reasons why the
Republican party is just now making inroads into the Black
community.
G@. All right.
A. And so I wouldn't accept your paraphrasing.
@. Have I misstated something?
A. You misstated that that was the reason that I, that was
the reasons 1 gave. The reason 1 gave was simply this,
until 1984 when a group of people. maybe Mr. Cunningham's
organization headed that, went into Federal Court in
Houston and forced the Democrat party to start letting the
Black vote. Well, the Republican party had no Primary, you
Te TT 3 TEE IGE NL JA, YS regen 7 TT MAT RT TD 5 Se, TRE STREET UE ERT mma TI ree x
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James — Cross — Cloutman 4-235
couldn't vote in the Primary. If you were going to vote in
the Primary you had to vote in the Democrat Frimary. So
after they won that lawsuit, from then until we started
having Frimaries in the "70's, there was no option. They
didn't, we didn't have a Primary then voting. So it has
been since that time —— well, earlier than that. in the
‘60's, 1 guess, we started having our Primaries in Dallas.
And until that came along there wasn't an option. The
greatest problem we had was that the Democrats, who have
built up an organization over that many years, are there to
tell their organization, their constituency, what the
Republican party is. Much the same things I have heard in
the questions here today. But we find that as we began to
tell the story. we have been running our own story in some
of the newspapers there, I have made regular visits, 1 have
a regular meeting group, go down and have lunch. we talk
about things. As more and more Blacks are elected to office
on the Republican ticket, as the Democrat party gets further
and further away from some of the traditional values of the
Elack community. those things are accelerating our growth.
G. Now, vou told us that you thought that the 1980 census
was all out of whack with respect to where people lived in
Dallas by race or ethnicity, did you not?
A. No, I didn't say it was all out of whack. I said it
doesn’t reflect the changes in the housing pattern that have
SRA a AOR ao NS ei
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James — Cross — Cloutman {4-23
cccurred in Dallas in the last 10 years as a result of the
improvements in the economics of the better educated members
of the Black community, the members of the Black community
who moved here from other areas. many of whom were
Republicans there. And the general change in the make up of
the north Dallas, east Dallas, and particularly suburban
communities.
Gc. I take 1t, Mr. James, you have performed no census of
vour own to determine how many people have actually
relocated who are Black or how many are Asian or Hispanic to
those neighborhoods?
A. No. But you see this every place you go, Mr. Cloutman.
I was at my grandson's flag football game the other night,
the other afternoon in Capell. Now, there is an area that
vou would think was fairly isclated. I am sitting in the
stands with the parents of the kids that are playing. and it
was a well represented group of Black parents and Hispanic
parents as well as Anglo parents. You go to the —— I, of
course, on election day in the Primary I constantly was
going through all of those precincts, do that all day on
election day. I do the same thing on the extended voting.
There are a, there is a very strong contingency of Elack
voters in the Republican Primary in areas that are not
predominantly Black. And then out, I live north of LBJ and
Freston Road, that would be out, if you were to think about
ym md WE a TE A TRAYS SL ATNAREE IERIE
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James — Cross — Cloutman: f-227
where the TI plant is, I am about a mile and a& half to the
west of that where I live. I have a plant over on. on
Farmers Branch. All of that area out there that you would
not think of as being Black. I would say that in those
departments that at least a third of the people are Hlack.
In my office next to the Fresbyterian Hospital it 1s more
than that.
Gi. I understand what you are saying.
A. So that is a tremendous change from '80. That wasn’t
true in 80.
a. I take it you don't have any numerical comparisons or
even approximations to give the Court so he will know what
the census should look like?
A. No, I don't have any approximations. Just
observations.
tt. Yes, sir.
A. The only statistical answer I can give you to that is
if you compare the turnout in those Black, predominantly
Black precincts between ‘82 and '88 there is a dramatic
reduction. Whether that is attributable to people moving
out or simply a loss of interest of whatever it was, but
there was an enormous difference in those two times. And 1
picked those two because I was election inspector in those
two elections. There was enormous attrition in the Black
voting in that election.
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James — Cross — Cloutman 4-238
MR. CLOUTMAN: I think that's all I have, Your
Honor .
MR. MOW: No further questions. Your Honor.
THE COURT: Mr. James, you may step down. I am
going to take 10 or 105 minutes. I will make this
observation. Elections in Dallas are a thrill a minute, 1
can see that. I am not real sure that our New Testament
teachings are followed there all the time. We will take 10
or 15 minutes.
MR. MOW: Your Honor. I would just like for you to
note that we finished by three minutes after 4:00.
THE COURT: Note.
{Brief recess.)
(Open Court.)
THE COURT: Did you get your little pamphlet?
Bicentennial of the Federal judicial system. There will be
a test conducted in the morning at 8:30 to see if you read
and have all this committed to memory. For instance, how
many Federal Judges are there in the Federal system” How
many District Judges? Quick. The answer is in here.
Okay. Call your next witness.
’ MR. MOW: Your Honor, for defendant Dallas
intervenors we have no more witnesses. except one we may put
on. And if we put him on it will have to be tomorrow. Ue
are through for today. Thank you.
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4-239
THE COURT: All right. This is off the record.
(Off the record.)
THE COURT: We are ready for some more. Let's go.
MS. IFlli: Okay. I just want to clarify. This
morning we indicated that Senator Washington would perhaps
be in out of order tomorrow. He is not going to be able to
make it tomorrow, so we will offer a summary of Mr.
Washington's deposition tomorrow.
THE COURT: All right.
MR. CLEMENTS: Excuse me. For clarification,
subject to putting in the summary of Senator Washington and
Alice Bonner and Mr. Plummer, the plaintiff intervenors
rest?
MS. McDONALD: Well, there is one, we have
discussed it several times, there is one excerpt, just
really one sentence that I would want to offer after Judge
||lbeal's video tape deposition.
MR. CLEMENTS: That is cross examination of Judge
Leal.
MS. McDONALD: Well, it is just to make the record
complete, if we did it like we did before.
MR. CLEMENTS: We are going to offer the
deposition. You are resting subject to those two things?
MS. McDONALD: Yes.
MR. CLEMENTS: Your Honor, we call Judge Manuel
4-240
Leal by video deposition.
THE COURT: That is not the Bankruptcy Judge. is
1t7
MR. CLEMENTS: Yes, he is, Your Honor. He was
formerly a State Judge before he went Federal.
"A. Then in 1982, at the beginning of ‘82, I was
appointed by Governor Clements to the State District Court
to replace Judge Wells Stewart.”
"@. That would have been in the 308th District
Court of Harris County. Texas?
"A. Yes, sir. I stayed there until January 1st of
1985. Then I joined the United States Attorney's office
until October of "83 when I became a Judge of the United
States Bankruptcy Court.
"@. Judge Leal, is your ethnic origin essentially
Hispanic or Latin American?
"A. Well, ve say Americans of Mexican descent.
"@. All right. And what was your political party
back when you were running for office with a political
designation?
"A. I was on the Republican party ticket.
4 "@. When you served as a master under Judge John
Feavy, Judge Peavy was, what, District Court?
"A. 246th Family District Court.
"@. And Judge Peavy is a Black Judge; is he not?
tok 4 heh 0 Ei 0d PAA I Mae +
» 1 "A. Yes,sir.
2 "@. At the time that you served with Judge Peavy,
3 ||how long had he been sitting on the bench?
4 "A. Well, he had already won one election because
51 was active in his campaign, so I remember that. That's
6 [|how I really got to know the Judge. He must have run in
7 1975. I believe he was appointed by the then Texas Governor
8 [and then ran for election. He had opposition.
9 "Q. In 19787
10 "A. ‘76, ‘78, somewhere around there. And that's
11 ||when —-— and probably —— he had a lady who I worked with at
12 | the County Clerk's office who was a close friend of mine,
13 ||and she was his clerk, Rachel Valdez —- Vasquez or Valdez,
14 [and she had been with him for a long time. That's how I met Hie
15 [| him.
16 "And then you began serving as master under Judge
17 ||Wells Stewart of the 308th?
18 "Yes. Actually I started with Judge Feavy sa in
19°78, 1979 on a per case basis or per day basis, and then in
20 |= yeah, then eventually it became a paid position, and
21 [that’s how I received those appointments.
22 "Your only race for a judgeship in an electoral
23 ||[contest was then in 19827
24 "A. That's correct, sir.
25 id 1 1 And on that occasion you ran in the Republican
bet sda ay
24
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party?
"A. Yes, sir.
"OB. Did you run in the Republican Primary?
"fA. Yes, sir.
"@. Did you have opposition?
"A. No. I didn't draw any opponents in the
Republican party.
"@. Did you have any opposition in the General
Election in 19827
"A. Yes, I did.
"@. Who was your opponent?
"A. A gentleman by the name of Bob Robertson.
"@. He would have been the Democrat running in
that race?
"A. Yes, sir.
"@. Now, were you successful in that race or not?
"A. Well, I didn't win the election. I did not
win it.
"QQ. Okay. In preparing your 1982 race, did you
attempt to raise campaign financing as candidates for Judges
do?
’ "A. Sure did.
"GO. Were you generally pleased with the results of
that fund raising effort?
"A. Generally, yes. I think we raised between 835
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and $90,000.00.
"@. Do you know how much your opponent, Mr.
Robertson, raised?
"A. I would say somewhere —— I've been told
somewhere between $108.00 and about $1,000.00.
"Q. A great deal less money than you had?
"A. Yes, sir.
"OQ. And did you have the support of your part in
that 1982 race?
"A. Yes, sir, at least on paper.
"GQ. And did you attempt to put together
endorsements and a steering committee to run the race”
"A. 1 had several steering committees.
"@. Did you SPRraach ithe Hispanic community,
Mexican—American community here in Harris County?
"A. Yes. In fact, it was sort of —— 1 approached
them, and then they approached me. The first one, of
course, was the Mexican-American Bar, and they decided to
endorse other than just straight Democrat candidates, and,
in fact, they wound up —— as a result of endorsing me, they
said if they were going to endorse me, they had to lock at
all of the other ones. and they wound up endorsing
candidates on both parties. There were a number of — 1
don't know. There were a whole slew of organizations,
Hispanic organizations that endorsed me. The Hispanic
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4-244
Caucus is another one that is an example of one that was
politically active.
"@. Did you also approach the Black community?
"A. Yes, sir, primarily through the Harris County
Counsel of Organizations, and I believe the Houston Lawyers
also, and thee were a number of other Black lawver
organizations that endorsed me outright. In fact, the
Harris County Counsel indicated to me that 1 was the only
Republican that they had ever outrightly endorsed. They had
co—endorsed John Lindsay but —— then Reverend C. Anderson
Davis has the —— I think they call it the Baptist Ministers
Association, was another one. I don’t have the list in
front of me, but I had every endorsement that was available
except the teamsters.
"8. Every endorsement from basically Black groups?
"A. That I was aware of. Maybe the teamsters is
not a proper one.
"@. And within the Mexican American community or
Hispanic community, did you have all of the major
endorsements from political groups?
"A. Yes, sir.
4 "B@. Running against an essentially unknown Anglo
Democrat?
"A. Well, he was known in the Democrat party.
apparently, because he had a history of filing just for
races.
"a. In your opinion did the Black community vote
as a bloc in your election?
"4. They —— the precinct results showed that they
voted very heavily straight party ticket that year, at least
those that —— when the analysis is broken down that the ——
there are certain precincts that the news media had
identified as predominately Black precincts, such as those
predominately Hispanic, but I could not tell from the voter
turnout whether the Blacks or the Hispanics that live in
Myerland or out on 1960, whether they voted in a block, but
those precincts that were identified as being heavily Elack
voted overwhelmingly straight party ticket, Democratic
ticket, and I don’t know if you would call that a bloc, but
I guess it would be.
"QO. What was your experience in obtaining. the vote
of —— in areas of the county that are predominately
Hispanic?
"A. Well, I lost them, although I did better than
Clements did. Say Harrisburg, the Ship Channel, the north
side, I took those precincts by a wider margin than any
Republican candidate took, but they were like in the 28, 29,
30 percentile, say, as opposed to —— I took River Oaks by F0
percent, I1'11 put it that way, and I tock the Hispanic vote
by 28 percent —— I mean I lost it. I only received about 28
NA TE Er TR TNT RF a ERT PLS ;
percent, which was ahead of Clements.
"OB. Was it your experience that the White
community voted as a bloc either for or against you”?
"A. The White vote came out heavy in my favor
except for Pasadena and Deer Park. I lost that vote fairly
significantly. Clements ran ahead of me. At the same time,
the other Judges around me did about the same in those two
areas, Pasadena and Deer Park. That was the year we had
Mark White at the top of the ballot. We had Tom White as a
judicial candidate, and Frank White. And the Republican
candidates with White as the last name did about the same as
I did in those areas.
"@. Now, sir, do you have an opinion as to whether
or not your political affiliation played any role in the
1982 election in which you ran?
"A. I think that was the more significant factor.
"@. And why do you feel that way, sir?
"A. Because, looking over the statistics, in 1982
I understand that about 30 percent of the voters voted
straight Democrat party versus only 19 percent of the
Republicans. And those precincts where they had over —
where they were heavily Democrat —— the precincts that were
in excess of SO percent that voted Democratic —— 1 did not
win a single precinct where there were at least 50 percent
or more that voted Democratic. I did not win a single one
Ss Yo el NT, Tea LE ee GY ERAT SANE TY
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4-247
of those and neither did Clements.
"a. There were other Republican candidates that
also ran in 1982; were there not?
"A. Yes, sir.
"8. And Tor the most part those who were not
incumbents lost; did they not?
"A. A fair number of the incumbents lost.
*@. For instance, Bill Powell, running as a
Republican for the 157th District Court, lost to Judge Felix
Salazar; did he not?
"A. That's correct. He beat Judge Hovt. Is that
the one you're talking about?
"@. Mr. Fowell who beat Hoyt in the Republican
Primary lost to Salazar, a Mexican American, in the General
Election, and a Democratic?
Incumbent Judge Louis Moore beat Clark Gable Ward,
a Black Democrat; did he not?
"A. That's correct.
"@. Your race with Robertson was within two
points, barely over 1 percentage point?
"HN. It was Ciuuer to 2 percentage points.
"@. Then in the County Criminal Court races Mr.
Musselwhite beat Mr. Muldrow, a Black; did he not?
"A. That's correct, Judge Muldrow lost that vear.
"@. And Judge Al Leal lost —— beat, rather. the
4-248
® 1 ||Republican Lolenda in the other disputed County Criminal
2 |Court race?
3 "A. That's correct.
4 "Ol. So overall you felt like the most significant
5 ||laspect of the electoral landscape that year was political
6 ||party and incumbency?
7 "A. That was my conclusion, just on the hard
8 ||[numbers. It was Bvarnheininaly obvious that that was
9 |lcertainly a very significant factor, was the straight party
10 ||vote in spite of all of the endorsements.
1 "G8. What other factors do you attribute the result
12 ||in 1982 to other than Primary political party and
13 || incumbency? .
14 "A. Jim Collins challenging Lloyd Bentsen.
15 "G8. What is the role of the head of the ticket
16 ||race like U. 5S. Senate when you're running down the ticket
17 || for a Family District Court bench?
18 "A. Well, it's pretty significant. As an example,
19 ||State Rep Senfronia Thompson is a very dear, dear friend of
20 ||mine and worked on my campaign and would take me out to
21 ||Black churches on Sunday, and we would go to eight, nine,
22 ||ten. Who else was with me? El Franco Lee's brother, Vally
23 ||Vastine, we were all pretty well —— and John Whitmire, we
24 ||[were all in the same car being taken round.
25 And everywhere I went, I heard constantly that,
De fe bind Pr chide SI ITE LL A don rE a
= YE Pigi.2 ”
op.
oe
Dl cet 3 Ith 2 Mehran UR Bp cat A RT CAAT
4-249
‘Lloyd's in trouble. We need to get out and vote.’ Gf
course, I think they assumed that I was a Democrat with that
group and I think more —— that that was a factor.
I think Governor Clements’ public stand on not
appointment a housewife to the Public Utility Commission at
the time just as the bills went out, apparently was a very
strong factor. I mean the timing was horrible, and that all
seemed to be part of the shocker, that since the top of the
ballot went under, and Lloyd Bentsen just devastated,
demolished Jim Collins, and that apparently trickled down.
I don't think that the vote that got out was to
annihilate me because 1 had every sincere person out there
working for me, both in the Hispanic and Elack community.
And I could not ask for more. It's just the odds were
overwhelming us. We had no choice over Clements, who he was
going to name to the Utility Commission, and at the same
time HLE&P went out with the real high bills. The bills hit
those homes about two or three days before the election. I
think those were more of the factors.
"Q@. Do you attribute your loss to the fact you're
a Mexican American?
"A. No. I attribute it more to being a Republican
in Harris County in '82 and the very solid Democrat
organization under John Odom. plus the timing. The emotions
were high, and I think Senator Eentsen felt that he was
ETL Thro. = gre i ot et ane
4-250
seriously challenged, at least that was the perception. and
people got out and voted, went out and got the vote for
Hentsen. I think this was the biggest factor in my losing
rather than me being a Mexican American.
"8. Have you followed the election since 19827
"A. Yes, sir, tried to.
"A. FParticularly in 1984, do you think political
party played a significant part for or against the
Republicans in 19847
"A. I do because one of my dearest, dearest.
closest ———
"M5. McDONALD: Excuse me one minute. IT I may
just object to the question. Since, as I understand, we're
taking this deposition to preserve Judge Leal’'s testimony. I
must object because it calls for hearsay. As I understand,
Judge Leal was not running in 1984. At that point he was a
Bankruptcy Judge. - So he was not running. Anything that he
may have heard would have been hearsay, and I don’t think
vou properly laid the predicate to provide for an exception
to the hearsay rule.
"MR. CLEMENTS: Thank you.
’ ng. (BY MR. CLEMENTS) You may go ahead and answer
the question and the Judge will rule upon the objection when
the video tape is presented in Court.
"A. My wife was helping Judge Lupe Salinas, who is
one of my dearest, dearest friends. And Judge Salinas lost
in ‘84, and he attributes it to Republican backlash.
"fi. Judge Leal, from what you were told and from
your perception during the campaign. were you the preferred
candidate of the Elack leadership?
"A. Yes. sir.
"3. The EHlack organizations endorsed you?
"A. Yes, sir.
"G@. The Black Judge you had worked for endorsed
you?
"A. Yes, sir.
"8. And a number of friends who happened to be
Black political officers in the Democratic party endorsed
yous right? >
"A. Yes, sir. That's correct.
"@. And yet when it came to the Blacks voting for
you in the Black areas. the voters pulled the straight
Democratic ticket lever; didn't they?
"A. At least —— apparently 30 percent did."
MR. CLEMENTS: That terminates our offer, Your
Honor.
MS. McDONALD: Your Honor. I understand your
position regarding letting in this matter but I want to make
it very clear that on behalf of the Houston Lawyers’
Association and the individual named intervenors, we are not
4-252 a— td
® 1 {challenging the delusion of Hispanic voters in Harris
2 |County. That is not an issue in our case. This deposition
3 ||just happened to be taken and other Black voters’
4 ||depositions were taken, but if he, vou know. wants us to
5||look at Judge Leal, that is fine. I have one question that
6||I asked Judge Leal at the end.
7 THE COURT: Okay.
8 M5. McDONALD: Subject to that objection 1 would
9fl|like ——
10 THE COURT: You don’t want it in, but 1 am going
11 ||toc let you do it so put it in. What was the question, what
12 ||was the answer?
13 MS. McDONALD: 1 asked Judge Leal, Judge Leal. 1
14 ||asked him as follows: If you have lived in an Hispanic area
15 {lin 1972 —— that is when he ran —— and would have run not in
16 ||@ county-wide race but in a race drawn within the Hispanic
17 ||area he feels he would have won, that was my question that 1
18 ||lwant to include.
19 THE COURT: In 1982 you are talking about?
20 MS. McDONALD: 1982. Subject again to our
21 ||objection.
22 || # THE COURT: Relevancy. Okay. Sure. Thank vou.
23 ||I appreciate the picture show.
24 MR. CLEMENTS: Thank you, Your Honor.
25 THE COURT: People aren’t fighting on picture
AE TE ST TE) TO PA RAAT Se i Bl te san SCRE So a
24
25
shows, did you notice that?
MR. CLEMENTS: Your Honor. we tender Defendant
Intervenor Woods’ Exhibit 54, which is a summary of that
deposition.
M5. IFILL: Our objection is the same. Your
Honor. That has nothing toc do with the intervenors.
THE COURT: Thank you. That will be Tine.
MR. CLEMENTS: Your Honor, I note from my records
that they objected to Exhibit, Exhibit 11. Exhibit 11 has
not been received yet.
MS. 1FlLi: Yes.
THE COURT: Okay.
M5. McDONALD: No objection to 11, Your Honor.
THE COURT: Okay.
MR. CLEMENTS: Okay. Your Honor, we call by
deposition, I am just going to read a summary of portions of
the deposition of Ray Hardy. District Clerk of Harris
County, Texas, taken on July 26, 1989. This is Defendant
Wood Exhibit 56, which we also offer. Your Honor.
The witness attended Sam Houston State Teacher's
College. Upon leaving college in 1946 he went to the
Carpenter's Paper Company for a short period of time and has
been employed in Harris County since 1949, starting as
Deputy District Clerk. He was appointed District Clerk in
1967 and has been elected continuously since that time.
24
25
Hardy — Deposition Summary — Clements 4-254
The District Clerk is the records manager for the
Courts in Harris County, including District Courts, County
Criminal Courts at Law, Family Trial Division Pighrist
Court, Criminal District Courts and Juvenile Trial District
Courts. He is also Jury manager. There are now 59 District
Courts in Harris County.
Mr. Hardy believes there are 23 District Courts in
Harris County that are on the Civil Trial Division. He
believes 23 are assigned to criminal trial, three juvenile
and nine Family Law Courts. These Courts have been
specialized either by legislative action or by their own
informal arrangements for as long as Hardy can remember,
since he has been in the District Clerk's office. Each
, numbered District Court in Harris County has oniy one Judge
for that particular specific designation with the exception
of visiting Judges who serve from time to time. Each of the
37 District Courts have a different number and only Judge.
Each Judge is elected from a District that extends to the
boundaries of Harris County. No District Court Judges in
Harris County are elected in any geographical area smaller
than the county. Harris County District Judges have been
elected from Districts co—extensive with the county as long
as Hardy can remember. In the 40 years the withecs has been
with the District Clerk's office he has DCcasionally
observed tinges of racism and ethnic discrimination, but
Hardy — Deposition Summary — Clements 4-235
AB 1 ||nione that overshadowed the electoral process. ine last 15
2 ||lysars the witness is aware of no incidents in which the
3 ||lethnic or background of the candidate for Judge has been a
4 || factor in an election. In his opinion the racial or ethnic
5 ||background of candidates has not been a factor. Dur ing that
6 || time both Blacks and Hispanics have been elected Civil
7 |Pistrict Judges in Harris Lounty. The witness has never
8 ||observed within the administration of the Court system any
9 ||bias or discrimination against sitting Judges who were
10 ||either Black or Hispanic or other minority or ethnic
11 {| backgrounds. He is not aware of any official or unofficial = ¥
12 ||discrimination between Judges based on their racial or 13 ||lethnic background.
14 Lawsuits are filed in Harris County by bringing
sion where it is filed pe
.
15 {the lawsuit to the central intake div
16 ||randomly into one of the Courts. The witness is generally
17 | familiar with the venue laws enacted by the State
18 ||Legislature as it pertains to the District Court functions.
19 || Those venue laws govern which county within the State is the
20 || proper venue for sult to be brought. There has never been
21 ||any differentiation made vy the venue within Harris County
22 lof the plaintiff who is bringing the lawsuit or group of
23 ||plaintiffs bringing a lawsuit. The jury pool is selected
24 from all registered voters in Harris County. The pool is
25 |lassigned to specific jury panels for service in specific
A ERT AE BT TS TY IIE ET UT 1 ST eee ES ET) TERE ee UT, SR Mp ITT eg Tn TR a NT NR OC et id rarer " 3 ERAN
nT Ty Ta rat, a2 ERE ey - J ae X or
3G ne Es PAE Sh E wt ry Aria. :
24
25
Hardy — Deposition Summary — Clements 4-296
District Courts by random number generator. The random
selected group is called in the order in which they appear
on the list as the Court calls for a jury panel. A central
Jury facility is used. The witness believes it is important
to have random assignment of jury panels to make sure that
the makeup of the county is represented by that panel that
is presented in the Court. Random assignment is important
to avoid forum shopping and to preclude cases going to any
particular Court other than by chance. The Civil Trial
Division assigns a number to the case as it is filed and
assigns a Court to it based on random selection at that
time. That file is maintained in the Civil District Courts
as opposed to criminal cases which are maintained in the
central file bank. It is important to the computerization
records keeping and the maintenance of pending cases that
all of the Courts be centrally located and easily accessible
to the District Clerk's office. To do otherwise would
create havoc to the maintenance of files for these Courts.
It would fragment it and fragment the publics assess to the
records. One of the witness’ functions is as the County
Statistician with respect to its judicial records. It
facilitates the District Clerks’ offices functions to have
centralized files and centralized access to Court's records.
The witness believes that the creation of 5% individual
geographically distinct District Courts within Harris County
I FI AT Ma PEL mer yy ee 1a "
mn AE SEX >
24
25
Hardy — Deposition Summary — Clements 4-257
would impact his office's function. If the records were
isolated to a particular area of the country that would
create a fragmentation of the records system and the ability
of the public to determine where cases are pending. The
witness believes it would create venue problems, as when an
event occurred in a certain location and the residences of
the people are in another location. The witness also
believes it would create tremendous expense to the county
and possibly be divisive to litigation itself. Since we are
still on a manual system in Harris County the creation of
smaller geographical districts, accompanied by the right of
a plaintiff to bring his suit in the smaller geographical
district in which he resides and would in fact require
setting up 59 different District Clerks’ offices to handle
the filing of those cases and the location of the filing.
then creating an information system that would allow the
clerks to know at all times where the cases are pending, who
the parties are, etcetera. As things are now. plaintiffs
have the right to request their case be tried in the county
of residence. He assumes the same application would apply
to enlace within the county. If plaintiffs wanted to
bring their lawsuit in the geographical district areas of
the Court where they preside, that would have ann economic
impact on the office because there would be considerably
more litigation in making those decisions that would take up
FP TTR 5 SIRE TS Teepe ———
Cr Bom em ET Se -
ed Ri wi \ 3
1 3 2
24
25
Hardy — Deposition Summary — Clements 4-238
valuable Court time. The witness believes that the creation
of geographical districts less than county-wide would result
in forum shopping, unless appropriate rules were established
to preclude it. If a right to venue within the part of the
county where the plaintiff resided were accompanied by the
right to a jury made up of people residing in the same
geographical area served by the Court, the witness believes
the implications for the assignment of jury panels and
calling up potential jurors are that it would be divisive to
the county to have juries set up from segments of the county
in that 59 different pools for jury calls would have to be
set up. By combining the pools we have been able to serve
the Courts economically based on the number of Courts.
There would be considerably more waste in the number of
juries he needed to call and he would have to over call to
compensate for long trials. They currently compensate for
that by having a central panel with the 59 Judges pulling
from that panel so that we can call the needs of the Court
and be assured that we have enough jurors there but at the
same time not over call and better schedule the potential
jurors for the Court's use. It is costing us now
approximately $1,500.00 to $2,000.00 a year to provide this
list to the Courts and if we divide it in 539 different ways
the costs would probably escalate at least by the number of
jurisdictions added. The creation of 59 different many
£
Hardy — Deposition Summary — Clements 4-20%
courthouses in Harris County would increase the staffing
requirements per Court. Wherein we now have a combination
of clerks serving various Courts and to minimize the actual
requirement of personnel. The staffing for relief for peak
time would drastically increase the cost. The witness
believes the administrative job of maintaining 39 mini
courthouses with their own docket of pending cases in their
geographical areas, there own jury pools, there own
plaintiffs—defendants, index tables and their own venue
problems would create administrative problems for getting
justice administered efficiently. You would have toc have
all general jurisdiction Courts without any specialized
Courts, unless you create special districts for specialized
Courts. Otherwise the numbers wouldn't go around. rhe
creation of 27 District Courts assigned approximately two
Judges each rather than 59 .districts would just be the
lesser of two problems. The answer would be the same if ten
Judges were assigned to the five State Senatorial Districts.
Again it would probably create some divisiveness in the
number, particularly in jury selection, as to whether you
are getting a disparity in Whites, Blacks or Hispanics
within the jury panels themselves. The District Clerk's
office is now doing everything to see that there is no
discrimination. In the witness’ opinion if you break up the
county into many districts along racial or ethnic lines the
EIR WIE TR NR ART TR BATES IIR TIRE
24
25
Hardy — Deposition Summary — Clements 4-260
witness believes it would encourage discriminatory jury
panels and potential jurors. If you assume that there are
13 or 14 intercity districts that ara geographically
distinct, and the balance of the 45 or 46 Judges would run
at large from the remainder of the county, the witness’
conclusions with respect to the administrative difficulties
would still be the same.
This is questioning by Mr. Todd of the Attorney
General's office. The witness is a member of the Council of
District Clerk's Association of Texas, National Association
of Court Management and Metropolitan Courts Conference. The
witness believes that Courts in other counties will be
similarly impacted. If you are a Black defendant accused of
a crime in Harris County the witness believes that as the
system of jury selection stands now that person would have
an equal chance of having Blacks on the jury panel as
Whites. If Harris County were divided in judicial districts
that were less than county-wide, and if each district had
its own jury pool, the witness does not believe a Black
defendant would have an equal chance of having Blacks on the
Jury panel because if it is in a district that is primarily
& White district, all of the selection process would be
White or basically White. The witness has 460 permanent
deputies with temporaries close to 540. The witness’ office
is funded by the county through taxes and fees that the
24
25
Hardy — Deposition Summary — Clements 4-261
T office collects. In the witness’ experience if Harris
County were divided into jurisdictional districts, each one
smaller than the county, each district would not generate an
equal amount of litigation and criminal prosecution. if
cases are assigned according to the district where the
cause of action arose, the crime occurred, that would result
in some Judges having a lot of cases to try and some having
fewer. Right now the load is pretty ii distributed
because of the random filing system.
Questions by Ms. Ifill: The jury pool is
compiled from registered voters in Harris County which comes
from the Tax Assessor—-Collector or the voter registrar in
Harris County. They get that list about every three years.
The District Clerk's office does not receive any information
that relates to the race of the registered voter in Harris
County. The current system that is used to select jurors in
Harris County has been changed from the original system used
when the witness entered the District Clerk's office in
1949, which was the voter registration list combined with
the tax rolls. The original system was changed in 19&7
because trying to match the rolls and eliminate duplications
was a Tiasco. The percentage of Blacks currently in the
pool for jury selection in Harris County matches the census
tract. The panel match the percentage numbers from the
Bureau at the census. The percentage of the various ethnic
24
25
Hardy — Deposition Summary — Clements 4-262
groups represented to the Court —— percentage of the Court,
I am sorry, represent their proportion of the population.
The election of District Judges county-wide has been the
case since the formation of the state. The witness believes
there are currently three Black District Judges in Harris
County. He believes there are four Hispanic Judges in
Harris County. Judge Louis Moore is incorrectly listed in
the pleadings as White, he is Hispanic.
This is my questions again. The witness has never
seen any indication at all that the system of having Harris
County Judges run county-wide was being perpetuated in order
to discriminate against the election of either Rlack or
Hispanic Judges. He has seen no evidence that would
indicate that having Judges run county-wide is being done
with an eye toward decreasing the number of Black or
Hispanic Judges.
M5. IFILL: Your Honor, I have an objection to a
portion of Mr. Hardy's testimony that deals with what 1
think to be the remedy stages of this case. I think that is
irrelevant at that point, but subject to that objection, I
have some portions.
} THE COURT: All right. Go ahead.
M5. IFILL: Mr. Hardy testified that in his
opinion the specialized Court system in Harris County should
not be maintained. In fact, they should all be general
Hardy — Deposition Summary — Clements 4-263
® 1 ||jurisdiction Courts and perhaps even going further there
2 |lwould possibly be an administrative Judge that would in
3 ||leffect have authority to assign Courts to various areas of
4 ||need. It would be up to this administrative Judge who had
5 |lauthority to assign these and find the expertise or find the
6 ||specialization and experience of a particular Judge to
7 |lassign those particular areas of need. Mr. Hardy also
8 [testified that if we were talking about electing Judges from
9 [single member districts but maintaining county-wide
10 || jurisdiction, he would not see that to be a problem.
11 Again he sees no reason why the election of Judges
12 || from single member districts while maintaining county-wide
13 || jurisdiction would cause any administrative problems in his
14 ||office. or cause any problems in the administration of
15 [justice in his offices. That's it.
16 THE COURT: Thank you. Mr. Clements?
17 MR. CLEMENTS: Your Honor, next we would like to
18 ||take care of the housekeeping matters you asked us to defer.
19 [|[Noting our objections to Plaintiffs’ Exhibit H, these are
20 ||loriginal plaintiffs, not plaintiff intervenors, objections
21 ||[to Exhibits H-01 through H-09. Objections are simply that
22 |these are basically orphan documents. They were not
23 ||identified or authenticated by anyone. The witnesses who
24 ||might have spoken to them for reasons that we discussed in
25 |lour objection and attached copies of extracts of deposition
TERR TE CL OT I I TX or A I RT ST 0 1 prs Ia pee rm
Ear I
4-264
3 1 ||were represented to us not to be testifying against Harris
2 [County and in fact have not testified. Dr. EBrachato did not
3||testify with respect to Harris County, yet he was the author
4 [land source of these documents. Accordingly, we think these
5 [documents should be stricken and should not be considered by
6 ||the Court for any purpose.
‘4 THE COURT: Your objection is overruled. Flease
8 [note that sometimes the Court has just got to say bring me
9 ||your poor and orphaned documents.
10 MR. CLEMENTS: The other thing, Your Honor,
11 ||yesterday plaintiff intervenor and defendant intervenor Wood
12 ||read portions from the deposition of Thomas Henry Roberts,
13 ||summaries of them. At the time we didn't know whether Judge
14 ||Roberts would be here in person or by deposition. We now
15 ||have copies of the extracts from his deposition which we
16 || tender as Defendant Wood Exhibit 57.
17 THE COURT: That will be fine. Give them to
18 |lcounsel.
19 MR. CLEMENTS: Finally. Your Honor. we call by
20 ||depesition on written questions Dr. Richard Hurray, a
21 summary of his deposition which is what we will read has
22 ||keen marked as Exhibit Si. We will tender that. And
23 ||because an issue has arisen as to whether or not Exhibit.
24 ||IPlaintiffs’ Exhibit 8 was properly authenticated by the
25 ||lplaintiffs in this deposition, we also tender the exhibits
A
Er pee AN EP Aur At SERRE LEE She A FE oe Sa RR A CA ES CSR Ca ad ing
{4-265
yp 1|lto the full deposition as Defendant Wood Exhibit 58, only
2 ||for the purpose of the Court's records showing what was
3 |lauthenticated and what was not by the witness.
4 THE COURT: All right. Dr. Murray, this is the
5 ||lUniversity of Houston professor?
6 MR. CLEMENTS: Yes, Your Honor.
7 MS. IFILL: Yes, sir, Your Honor.
8 MS. McDONALD: Your Honor, if 1 may respond. That
9g [|lwas not my only objection. I have spoken —— 1 don’t know
10 ||how to do this. I spoke with Mr. Clements two days ago,
11 || three days ago, how long —— when we started Monday.
12 THE COURT: Sometime last year.
13 MS. McDONALD: Yes, last year... .I told him I would
14 ||have objections to each and every of Dr. Murray's reports,
15 land I told him the basis of my objection at that time.
16 ||Authenticity is not the only basis. I told him i1t would be
17 ||hearsay, I told him it was not business records, I told him
18 ||also that he had not properly established that these
19 ||reports, if that is what you want toc call them, are the
20 || types of documents that are relied upon by experts, assuming
21 ||he even established that Dr. Murray is an expert. Go it
22 [lwould not comport with Rule 703; it would not comport with
23 ||Rule 8036. And I told him that. So I don’t know what he is
24 ||talking about when he said my only objection is
25 |lauthenticity. He has known since the beginning more than
{ .
TFT PAA wt SANTA 5 EM) I YS SR mes TT eer LY TT LE Se
4-266
® 1 ||that.
2 MR. CLEMENTS: Your Honor. 1 apologize if I didn't
3 ||recite the whole litany. I think we addressed them all in
4 ||the deposition on written guestions. Your Honor will decide
5 ||lwhether or not it is sufficient qualification to justify
6 ||their entry into evidence. We will offer independently
7 lcertain exhibits that have previously been marked at the
8 |lclose of the presentation of the summary and we will offer
9 ||the exhibits to the deposition as a whole, which is a more
10 ||inclusive universe of documents to show what was and was not
1 ||identified. I think Your Honor understands the problem.
12 || There were the Exhibit 8 documents from plaintiffs’
13 |lcollection that have never been authenticated. to which we
14 ||objected. We did. however, depose Dr. Murray and had him
15 ||testify as he has with respect to six, seven reports which
16 ||he has written, which are totally separate and distinct from
17 ||Plaintiffs’ Exhibit 8, and which, subject to your ruling, we
18 ||will offer into evidence.
19 | THE COURT: 1 have got to hear it before 1 can
20 ||make a ruling. You understand I can’t, one counsel says we
21 ||have got good stuff to offer. another says bad stuff. X
22 lean’t figure out whether it is good or bad until I hear it.
23 MR. CLEMENTS: Until you hear it. This is the
24 [deposition of Richard Murray, PhD., taken July — 1 am
25 ||sorry. September 5, 1989, by deposition on written
YT RY EP TS EI TT ET Me CTS me py 7 07 STN Wer A 7 FAR A peg,
PP PT TT TH PTR NORE A SFIS SAT TT ST res
Murray — Deposition Summary — Clements {4-267
questions.
The documents described in Exhibit 1 attached to
Murray's deposition notice were in his custody and were
produced to the notary public taking the deposition. These
records are complete and accurate copy of the documents in
his possession pertaining to the above mentioned requested
categories. The records furnished to the notary public were
kept in his regular course of business. It was in his
regular course of business to make these records or transmit
the information which is included in this record. The
records were made at or near the time of the acts which are
recorded or reasonably soon thereafter. Dr. Murray has been
employed by the University of Houston since 1976 and nas
been a full professor since 1981. His preparation for the
position he holds is a bachelor’s and master’s degree in
Government from Louisiana State University and a PhD. in
Folitical Science from the University of Minnesota.
Murray’'s principal field of study is American Politics and
Elections, Public Opinions and Political Parties. He is a
member of the American Political Science Association,
Southern Folitical Association, the Midwest Folitical
Science Association and the Southwestern Political Science
Association. Dr. Murray teaches courses in Political
Farties Elections, Political Marketing and Public Opinion.
He has published a number of articles in the general field
Murray — Deposition Summary — Clements 4-268
3 1 lof American politics, including a basic text, Texas
2 |Politics., focusing on state politics and elections, and
3 ||several articles analyzing local elections. He has worked
4 [las a Political Consultant in approximately 150 political
5 |lcampaigns and is currently employed by the Dallas Morning
6 ||News and Houston Chronicle doing state political surveys.
7 Dr. Murray is a member of the Democratic party but not in
8 ||lany organizational sense and usually splits his ticket. He
g ||has no formal affiliation with either the Democratic or
10 ||Republican parties.
11 THE CRIRT: What was BE aunds like Will Kogers’
12 ||statement. What was Will Roger's, he didn't belong to any
13 ||organized political party, he was a Democrat?
14 MR. CLEMENTS: He was a Democrat. Dr. Marray has
15 ||no affiliation with any minority or civil rights groups and
16 ||[no commissions or employment at present regarding minority
17 |political interests or civil rights. He has occasionally
18 ||been employed to testify as an expert in Court and he as
19 ||occasionally testified as a pro bono expert witness. Dr.
20 ||Murray has testified approximately 50 to 20 times, including
21 ||testimony regarding voting right act guestions., including
22 lihhite versus Kegister. He also testified in Horoy versus
23 ||ICity of Houston attacking the City Council District forum
24 |lused in city elections. In those cases he was a pro bono
25 ||witness for the plaintiffs in the lawsuit. In 1982 he was a
PP pT a 4 TTT TC Rp me A SA IAI Th Te fe an A FR SE Sem a men Srp ——— EL ——_ a Tr ——— pe JPRS —— EO I Ee Er Ea
ERI SL
24
25
Murray -— Deposition Summary — Clements 4-269
paid witness for the State of Texas in a Federal Court
hearing in Dallas defending the State Congressional
Planning. He does not recall the style of the case. in
March, 1989, he testified on behalf of the defendant, Hardy
T County, in a voting rights case in Federal Court in Tampa.
Florida. styled Concerned Citizens versus Hardy County on
the special issue of Black-Hispanic coalition. He has
generally found such coalition difficult to create. Other
testimony in Court has been with regard to political surveys
or opinion surveys related to change of venue which have no
connection to voting rights issues. Dr. Murray has been
employed as a political consultant in judicial races
beginning with work for District Judge Fill Elliot in 1976.
Since then he has worked probably for 30 to 40 judicial
candidates, including some Republicans such as Fat Likas but
more often for Democrats. Among the Democratic candidates
for whom he has worked or Judge Ed Landry, Judge Millard,
Ken Harrison and the coalition of incumbent Democratic
Judges in 1986 who were running a collective campaign in the
General Election. Dr. Murray identified each of the
following documents as business records: untitled report in
four parts marked Murray Exhibit 1. Elections prospectus
for the election year of Appellate Court, November, 1982,
marked Murray Exhibit 2. Judicial Courts in Harris County
in 1982 marked Murray Exhibit 3. Judicial Elections in
Murray — Deposition Summary — Clements {4-270
5 1 ||Harris County. A Review of the Judges’ Committee Campaign
2 |[Effort marked Murray Exhibit §. And the Selection of Judges
3||lin Texas, marked Murray Exhibit 6&6.
4 Dr. Murray is the author of the document
5 ||identified as Murray Exhibit 1. It was prepared for some of
6 || the Judges he was assisting in 1982 General Election, one of
7 whom may have been a Republican while the rest were
8 ||Democrats. The document addresses the history and problems
9 ||loef judicial elections in Harris County from the perspective
10 ||of individuals running for Judge. These topics are not
11 ||addressed by very many persons in his profession but are of
12 [interest io him. Dr. Murray's conclusions in Exhibit 1 — 1
13 ||guess before 1 read his conclusion I ought to tender Murray
14 ||Exhibit 1, which has been marked for identification as
15 || Pefendants’ Exhibit NO. 2.
16 MS. McDONALD: Objection, Your Honor.
17 THE COURT: All right. Make your objection.
18 MS. McDONALD: It becomes very tedious, Your
19 ||Honor, but let me see if I can explain what I think
20 || happened.
21 MR. CLEMENTS: I am sorry. this is Defendants’
22 [|Exhibit 13.
23 THE COURT: No. 137
24 M5. McDONALD: Dr. Murray's deposition was taken
25 lon written interrogatories, so the litany that Mr. Clements
RT TS Ee ne 9. Yemen en) mn mre ir = ym np armies yep Yip, oD Feb ai SEER eR
Murray — Deposition Summary — Clements 4-271
read is correct. Yeah, do you keep these records in the
ordinary course of business, did you make them at or about
the time, everything like that is fine. I have no question
about that. I am not also challenging the fact that Dr.
Murray is an expert. What I am saying is that the reports
themselves are not admissible. in order to determine that,
it is nice for the witness to say, yes, yes, yes, you Know,
every time those four factors are read out the witness said
ves, yes. But you have to look at the report. Let's look
at what the reports are, not summarizing them, but just look
at what Exhibit 1 is in Murray's deposition. Which Exhibit,
is this 1357
THE COURT: HNO. 13.°
MR. CLEMENTE: No. 13.
M8. McDONALD: No. 15. Okay. Murray Exhibit 1,
this is what he says in response to the question, and this
refers to now the exhibit that Defendant Wood. intervenor
Wood wishes to introduce into evidence. What is Murray
Exhibit 1? It is an untitled report in four parts and
marked as Exhibit 1. On page 9 it asks further who was the
report prepared for, and I have lost it. Let's see. Okay.
Murray Exhibit 1 appears to have been prepared for some
Judges, assisting in a 1982 General Election, Democrats and
one Republican. So what we have is an untitled report that
was prepared for some Judges, to assist them in running in
Murray — Deposition Summary — Clements {4-272
some election, 1 gather in 1982 in the General Election.
This has nothing to do with our case. I mean absolutely
nothing to do with our case. What we are talking about here
is whether or not there was racial polarization. That i in
one issue. But an untitled report. and he says it was
prepared for some Judges, none of the Judges to my knowledge
who are involved in this case. That is who ran and lost, 1it
has nothing to do with matters before the Court in any way.
Further he goes on, on page 12 he says that these are not
the topics ordinarily addressed by persons in his
profession, he said, but of some interest to me. Again on
page 12 he said he can’t answer whether the opinion that he
has given in that report, that is Murray Exhibit Ro. 1, that
Defendant Wood, Intervenor Wood wishes to offer, he cannot
answer whether that is an opinion reasonably relied upon by
persons in his profession. Also on page 12 he says he can't
vouch for the correctness of the opinion that he gave in the
report. So, yes, he answered this litany that supposedly
makes it a business record. To me it was prepared for a
very limited purpose, a purpose that has nothing to do with
this lawsuit. It was prepared for some unidentified Judges.
Secondly, if it is admissible as being some kind of hearsay
that an expert relied upon, he himself impeaches himself or
contradicts himself, I guess is a better way to put it. We
argue about impeachment every day. He contradicts himself
Murray — Deposition Summary -— Clements 4-273
when he says he can't vouch for his correctness. and admits
that it is not the type of opinion that is relied by persons
in his profession. So the report has no probative value at
all as far as issues in this case. I think it should be
excluded. That is Exhibit 1 to Murray exhibits. Do you
want to offer another one or respond to that?
THE COURT: 1 am going to overrule the objection.
it may not be relevant to any matter that I am going to
decide and I may not. you know, rely on that. If he didn't
rely on it, I suspect 1 won't either. I am going to admit
it. Fine.
MR. CLEMENTS: I am sorry. That was, that is
Defendants’ Exhibit 12.
THE COURT: It is not 13, it is 12, is that what
you are saying?
MR. CLEMENTS: 1 was right the first time. Dr.
Murray's conclusion in Murray Exhibit 1 is that judicial
elections are very partisan, very hard fought and very
close. People need to campaign actively and 1982 would
probably be a somewhat better year for Democratic candidates
that 1980. These conclusions primarily were based on his
analysis of previous election returns and expectations of
what would happen in the November election. The facts, data
and opinions on which he based his conclusions and opinions
are those he normally uses in assessing elections. I think
Murray — Deposition Summary — Clements {4-274
Ms. McDonald misread. He believes his conclusions are
reasonably accurate projections of what actually occurred.
The basis for Dr. Murray's conclusions and opinions
regarding Murray Exhibit 1 is the match up of his projection
in the election results and he thinks after the facts that
his conclusions hold up well. Dr. Murray authored Murray
Exhibit 2 — and this is Defendants’ Exhibit 13 — written
for candidates running in the 14 county Appellate Districts
for the Appeals Courts 1 and 14 in Harris County. There
were several candidates and a document was prepared to
generally familiarize -——
MS. McDONALD: Excuse me. Are you offering 137
MR. CLEMENTS: Not vet. I am qualifying it.
Generally fait iaridad with them with the politics
of the Appellate elections. The document relays past
election returns particularly from 1980 and makes some
projections or forecasts about 1982. These topics
occasionally are addressed by persons in Dr. Murray's
profession. The conclusions Dr. Murray reached are listed
on page 6. The reports that he authored speak for
themselves. Dr. Murray Exhibit 2 states that based on
analysis of all 17 contested judicial races in Harris County
in 1980, using precinct level data, Dr. Murray drew the
following conclusions: One, the great majority of voters
cast straight ticket votes in all judicial elections. Of
CAT AN ideas BET tos Sa Ro EL Bde mr a NT en
Murray — Deposition Summary — Clements {4-273
more than 720,000 Harris County voters about 530,000 voted
for all one parties’ judicial candidates or the cther. Two,
there are more straight ticket GOP voters than Democrats.
About 270,000 voters voted for all Republican candidates.
Two hundred sixty thousand voted for all Democrats. Three,
125,000 voters did not vote in any judicial races, fatigued
or confused by the long ballots they just skipped these
contests before returning in the main to vote in District
Attorney, Sheriff, Tax Assessor races.
MS. McDONALD: Is this 13 now?
MR. CLEMENTS: Yes.
MS. McDONALD: You are reading a summary of a
report. You said you were qualifying.
MR. CLEMENTS: I am sorry, we got into that. I am
not, this is a summary of the report. I tender Exhibit 13.
THE COURT: No. 13 I am not going to admit. 1
don't care about any Appellate Court. I would send it to
Judge Vella if he wants me to. Judge Vella is worried about
Appellate Courts. I don't need any summary of any Court of
Appeals race for 14 counties. I don't have any objection to
the figures that you gave me, if they are part of the report
about how many people voted in Harris County. how many
pecple voted the straight ticket, how many people skipped
Judicial races. I may do that next time.
MR. CLEMENTS: Your Honor, these are offered
24
25
Murray — Deposition Summary — Clements 4-276
principally because that contain Dr. Murray's analysis of
what occurred in each of the elections at the Trial Court
level and the Appellate Court level. But they are not
geared toward a particular person's race. They tend to be
historical and analytical, and tc some degree
prognosticative since he is forecasting what he thinks will
happen in "82, "84. And then the reason we are offering
them in sequence is he is issuing reports every two years.
So in effect he comments on his projections for ‘82 when he
issues his report in ‘84. And it goes on that way.
Well, are you overruling the offer of that?
THE COURT: I am denying anything that has to do
with the Court of Appeals race. |
MR. CLEMENTS: Okay. We will not even offer
Murray Exhibit ——
THE COURT: Unless you want me to take it and send
it to Judge Vella.
MR. HICKS: I will object.
THE COURT: I believe he has already ruled anyway,
hasn't he?
MR. CLEMENTS: He has already ruled.
4 MR. HICKS: Halfway.
MS. McDONALD: As I understand it, Your Honor,
Wood 13, that is the number we have it as.
MR. CLEMENTS: Right.
Murray - Deposition Summary — Clements 4-277
MS. McDONALD: Will not be admitted; is that
carrect?
THE COURT: Correct. Now. meanwhile, back at the
ranch.
MR. CLEMENTS: Meanwhile, back at the ranch.
Murray Exhibit 3, Dr. Murray authored Murray Exhibit 3,
which is Defendants’ Exhibit 14. The document was prepared
for some people working for Judge Bird, a Domestic Relations
Court Judge. It addresses general questions about getting
elected in judicial races in Harris County. Murray Exhibit
3 reviews past voting patterns and makes projections for the
upcoming 1984 election. Few people might concern themselves
with these issues. His conclusions were an attempt to
assess the general patterns of voting in the county, putting
stress on a large number of straight ticket voters and made
some suggestions about how to organize to maximize the vote
for Judge Bird. HMMost of the factual basis is past election
returns in Harris County.
Let me go into this as further qualifications.
Most political scientists would draw on the same data base
if they were trying to understand elections. He might
modify his conclusions and inferences with hindsight, but
at the time he felt this was the most reasonable set of
conclusions. The basis for this answer is his experience in
local elections in politics.
24
25
Murray — Deposition Summary — Clements 4-278
We tender Defendant bkiocod Exhibit 14.
MS. McDONALD: Again. Judge. what he said is that,
what Professor Murray said is that Wood's 14 was prepared
for, "some Tolks working for Judge Bird who was a Domestic
Relations Court Judge." He further said, "the purpose for
which it was prepared was general guestions about getting
elected in judicial races in Harris County." He further
says that it was about how to organize to maximize the vote
for Judge Eird. I don't know who Judge Bird is, not that it
makes any difference. And then also he says in hindsight
that he would modify this somewhat, but at the same time he
felt that it was the most reasonable set of conclusions.
This is something that he did for Judge ERird. That is very’
interesting but it is not a business record. If it is a
business record. I have a case full of business records,
things that I have done for lawyers and for clients. They
ask me an opinion, I give them an opinion. But because 1
give ABC company an opinion. that has nothing to do with the
issues in this lawsuit. Judge Bird's name has not been
raised once, and it doesn’t address at all the issues that
we have to address in considering or applying Gingles. So
it is totally irrelevant.
THE COURT: Overruled. Go ahead.
MS. McDONALD: So 14 will be admitted?
THE COURT: Yes.
24
25
Murray — Deposition Summary — Clements 4-279
MR. CLEMENTS: Dr. Murray authored Murray Exhibit
No. 4. He prepared it for the 21 Judge Judicial Committee
cf Democratic Judges that faced election challenges in
November, 1986. It reviews the voting history in the
county, particularly the results of the 19856 joint campaign
effort. The topics in Murray Exhibit 4 are occasionally
addressed by persons in his profession. His conclusions are
stated in pages 13 through 17, emphasizing the strength of
the straight ticket voting, but the success of most of the
Democratic Judges in securing a significant swing vote. He
discusses the problems of minority candidates that were
members of the judicial committee. The facts. data and
opinions in Murray Exhibit 4 were based on his analysis of
the 1986 election results. The facts, data, or opinions on
which Dr. Murray relied on drawing his inferences or
conclusions in forming his opinions in Murray Exhibit 4 are
of a type reasonably relied on by persons in his profession,
although the analysis may be much more detailed. He stands
by the conclusions and opinions drawn. Although we have
some hindsight and some additional elections since 19846. the
conclusions reached are still fundamentally sound.
We offer Defendants’ Exhibit 15.
MS. McDONALD: Your Honor, we have objections on
the same basis. Again, this is a report —— there has been
much discussion about this, this is a report that was done
Murray — Deposition Summary — Clements 4-280
for the 21 members of the judicial committee. And we, you
have heard the testimony that these are Demopbcratse and these
were all incumbents, and you have heard testimony that all
incumbents won. except for the three Black Democrat
incumbents. I think really this exhibit should be
llconsidered in connection with the next one, which is Murray
9, because it appears to me that Murray 5 was the charge 1
suppose that was given to him, that is what he was asked to
do. If we don't know what he was asked to do, then we
cannot test his analysis. We don't know whether he was
asked to consider the race of the three Black incumbents.
We don't know whether he was asked to consider is there
polarized voting? If there is, how can I overcome it? All
I know is he did a report for a group of candidates, and
that's it. You only get out of a report what goes intc the
report. If I ask you by that, like garbage in. garbage out
in a computer, vou have to plug in certain things. You then
get a conclusion. If you don’t plug in the factor of race,
which is what we are talking about, then the answer that
comes out is not very relevant because the proper question
have not been inguired of the person who was going to do the
report. So again, I contend that it is probative of
nothing. Further there is one sentence that Mr. Clements
left out, and Dr. Murray did say that this is a fairly quick
study done immediately after the election. It goes to
Bre Tenino eas ae;
Murray — Deposition Summary — Clements 4-281
weight, but again it is our position it is not probative and
it has not been characterized as an opinion. Again. 1 mean
as a business record. If these are business records, Your
Honor, then it seems to me every opinion that I give a
client is a business record. And I don't think, I don’t
think that is the case.
THE COURT: If we would abolish lawyer-client
immunity, we wouldn't have any problem.
M5. McDONALD: That is true. Your Honor. That is
another reason why it wouldn't be admissible. That is only
if I did it, but this is not a business record. This was a
report that he was commissioned to do, and people do them
all the time. That doesn’t make it a business record. And
further, and I think most importantly, it is not probative
because it is clear the proper question were not answered.
And again, I think what goes in comes cut. and i¥f you get a
report, the value of the report can only be judged by what
charge was given to you. And if that charge was not given,
then I consider it very irrelevant in this case. And the
report is very nice, but has nothing to do with what we are
dealing with.
THE COURT: fiverrulad. Go ahead.
MK. CLEMENTS: I only have two more exhibits to
qualify, Judge.
Dr. Murray authored Murray Exhibit 5, a report
24
25
Murray ~ Deposition Summary — Clements 4-282
prepared before the 1986 election for the judicial
committee. Between the 21 Judge Democratic group, Murray
Exhibit 5 previews the upcoming 1986 election. These topics
are occasionally addressed by other political scientists.
After reviewing past election returns Dr. Murray made a
number of suggestions about the problem, on pages 146 through
20, indicating all candidates faced tough competitive races
in Harris County and that a collective effort on the part of
each party was going to be important. Most of his opinions
or conclusions were based on an analysis of past elections
results. The facts. data or opinions upon which Dr. Murray
relied in drawing his inferences and conclusions and forming
his opinions constitute the basis jon which he normally draws
opinions about elections. Pre—-election analyses are
speculative, but in this case his projections were markedly
close to the mark. He has the benefit of actual election
results from November, 19846, to compare with the projections
in June.
We offer Defendant Wood Exhibit 16.
MS. McDONALD: Judge, once again I must object for
the record. Again as ——
; THE COURT: I will consider as the objection what
vou have stated insofar as the rest of them are concerned,
whether or not they are business records, whether or not
they are probative, and whether or not they are relevant.
24
25
Murray — Deposition Summary —- Clements 4-283
If you have an additional objection to this one I will hear
that.
M5. McDONALD: I have another one. and that is
that he himself says as to whether or not this is something
that persons in his professions normally rely upon. he says
he can only speak for himself, as to whether this is the
type reasonably relied upon in his possession, profession.
He said that there was only suggestions about problems,
indicating that all candidates faced tough competitive
races. That was my point, that again there was no special
attention given to the Black incumbents and any conclusions
that he reaches regarding hem may be nice, but it was
nothing that was in the charge that was given him to prepare
the report.
THE COURT: Overruled.
MR. CLEMENTS: Dr. Murray authored Murray Exhibit
6, which is Defendant Wood's Exhibit 17. The document was
prepared for a reader on American and Texas politics to be
published, or available in local book stores on September
20, 1989. In fact that has now been published. This
document addresses the selection of Judges in Texas. This
his profession. The article speaks Tor itself. it
addresses competitive elections in the state and
indicating that these elections have become increasingly
Muriray — Deposition Summary — Clements
partisan, that more and more interest groupe are
involved. A number of problems —
MS. McDONALD: Are you going on now to summarize
the report’
Fik. CLEMENTS: No. And a number of
emerged with regard to judicial
Murray's conclusions in Murray Exhibit 6 are based partly on
recent election returns and on commentary by other observers
.
of the Texas judicial system. The facts, data or opinions
on which he based these conclusions are of the type
reasonably relied on by persons in his profession. His
conclusions are recent and he has not changed his mind on
the subjects. Exhibit 6 is a recent piece of work and
reflects his current thinking.
We offer Defendant's Exhibit 17.
MS. McDONALD: Your Honor, just for the record,
think it goes just to the weight that should be given, it
does say on page 22 that they are, the topics covered are
addressed by a minority of persons in his profession. So
that is my only objection.
THE COURT: It goes to weight. Overruled. It
will be admitted.
MR. CLEMENTS: And. Your Honor. we offer
Defendant's Exhibit 21 and 28, which is the summary and the
original exhibits to that report.
FI Ty DT A Se eT EET Err
Murray — Deposition Summary — Clements {4-285
MS. IFILL: Aren't there other things on there?
MR. CLEMENTS: There are. We are only offering
Exhibit 58. Your Honor. to show the documents qualified,
which includes others. This only is relevant, this document
will only become relevant to the issue of whether or not Dr.
Murray in this deposition qualified the data set which was
provided toc Dr. Engstrom which we objected. He did not
qualify in any way in this report, and this is really
relevant only to show that that is the case. And, you know,
unless that issue concerns Your Honor, you can put it aside
and never look at it, but it needs to be in the record.
MS. McDONALD: Your Honor, I have a problem; just
a minor problem with it. If it 1s a question ——
THE COURT: Does anybody have any more picture
shows? Let's take these things out. Go ahead, unhook them.
MS. McDONALD: The documents that Mr. Clements is
referring to are a catch-all set of documents, Your Honor.
And it says, at the end of the deposition, and it requested
all documents provided since January 1, 1984, to any of the
following regarding elections or election returns, voting
districts or demographics that relate to any race or
minority language, discrimination and/or voting patterns and
results in Harris County. And then there is a whole list
that goes on, probably a whole page of persons that he
lists. Now, that is fine, but then he never identifies
TET PO Rn TN ym Ur mre — | a —— RD TT mm
Fn ik ES TE PRISE LYSE EAR) ba CN CI
24
25
Murray — Deposition Summary — Clements 4-286
which of these documents he gave to whom. I don't. I mean
my name is even on the list and there is a whole bunch of
documents and I don 't:know to whom he gave these documents.
iI don't see how they will help the Court at all. 1 don"t
see how anyone can determine what they are.
THE COURT: You are offering them for the record.
they will admitted for the record. Go ahead.
MR. CLEMENTS: Your Honor, 1 would like to read a
very brief part of only one of the exhibits. two pages. Hot
that brief, but —
M5. McDONALD: Are you offering 187
MR. CLEMENTS: Yes, we offered 18. We are not
offering 18. because it wasn't addressed in the deposition.
MS. McDONALD: He didn't have it before him?
MR. CLEMENTS: Yes. He cidn’'t have it before him
at the time his deposition was taken, so we are not offering
Exhibit 18.
This is from Defendant's Exhibit 15, the summary
wrap up of the 1986 election, called Judicial Elections in
Harris County, a review of the Judges’ Committee campaign
effort. The report itself is 17 and a half pages long. I
am going to read only a part of it.
If our basic strategy seemed to be sound. what
about the tactics? Most of the money spent by the proaram
went to three programs, the general party effort to get out
24
25
Murray — Deposition Summary — Clements 4-287
the vote, identifying and mailing swing voters and
electronic media targeted largely at White middle-class
voters. The McClung organization performed well in the
telephone areas and George Strong did an excellent job in my
opinion with our media. We got our message out to the
people we wanted to reach and it worked. We were also able
to counter the GOFF effort to tag us as soft on crime.
Despite the mass mailing and hard TV ads promoting this
line, there is no evidence that it worked. Our veteran
Democratic criminal Judges ran strongly, a good sian that
the crime issue did not help our GOFF contenders. The
overall success of the Judges Committee 1986 must be
balanced against our major failing, the defeat of the three
Elack Judges. Why did this happen? My analysis Leads me to
reject the simplest theory, racism. There are certainly
many races in Harris County. but I can find little evidence
of a concerted effort to seek out the Black Judges on cur
list and vote against them. And he has a table of precinct
by precinct results. The precincts with a history of racist
tendencies, support for Wallace in 1968, opposition to well
known Black candidates in city elections, gave Judges
Plummer, Fitch and Williams reasonably strong support in
19846. The major damage occurred in upper income areas where
split ticket voters gave much lower percentages to Judge
Plummer and somewhat lower support to Judges Fitch and
24
25
Murray - Deposition Summary — Clements 4-288
Williams than was given other Democratic incumbents. Why
this drop in support among upper income swing voters? 1
would suggest it was a combination of factors. The Black
Judges were not as well known as most of the other Democrat
incumbents, having come recently to the bench via
appointment. As newcomers they were not able to raise the
funds to conduct as vigorous a campaign in these areas as
some of the other Democratic Judges. Flus there hard work
to increase minority interest in this election almost
certainly reduced their capability toc campaign personally in
White swing areas. And their support in the Houston Bar
poll was not as high as that of most of the other Democratic
Judges. And this hurt in a year where the Bar polls had
more visibility than usual. Finally they all had credible
opponents with reasonably smooth names. Realistically the
Black Judges would have faired much better if their
opponents had been —— and he lists a number of unsuccessful
Republican challengers’ names. I will spell them, Jeu,
J-E-U, Haljmarson, H-A-L-J-M-A-R-5-0-NM, Dodier, D-0-D-I1-E-R
or Jaroszewski, J-A-R-0-5-Z-E-W-5-K-I and low Black voting
hurt the Black Judges.
’ Finally we must look at the GPC matter. My
recommendation early in the year was that it would be very
dangerous, iT not suicidal, if the gay political Caucus
endorsed only Democratic Judges, as was the case in 1984.
24
25
Murray — Deposition Summary — Clements 4-289
This would have opened us up for a broadside attack late in
the campaign as the gay ticket. With hindsight we know this
was not a problem. Many Democratic candidates did not have
the GPC endorsement and three Republican judicial candidates
were endorsed. So as it turns out there was no down side to
having the GFC endorsement this year, and it was important
that one's opponents not be on the GPC slate. Unfortunately
the BFC endorsed Mr. Atkinson against Judge Fitch, Mr.
Anderson against Judge Williams. My guess, based on the
results in Montrose precincts like 34 and 37 is that the GPC
swung about 3,000 votes when the endorsed Republicans, which
means a difference of 6.000 in the final results. Of
course, if we had gotten those 6,000 votes Judges Williams
and Fitch would have won. The net result is their having
GPC endorsed opponents was good for the Democrats in general
but failed for them individually.
There is a great deal of interesting material in
these exhibits, but that closes our reading from them, Your
Honor. 1s there something you wish to add?
MS. McDONALD: Your Honor, one other point, if I
may. With respect to Murray —— Wood 16, which is Murray 5,
at the end, and I understand the Court has overruled my
objection, as you look at it please read especially the last
page, because Dr. Murray states that his suggestions that he
has laid out are contained in an accompanying report, and
RE TP reg TY Ter.
{4-290
that is not part of Wood 16. So again it is not a complete
document as well. That is another basis for our objection.
And Mr. Clements summarized or read a portion of his Ely
but it is interesting that Dr. Murray never said there was
no racially polarized voting. And that is the issue that we
have, that is one of the issues that we have to address in
this Court. And he certainly did not engage in the
regression type of analysis that at least two experts have
testified to and another one I think is going to testify to.
He didn't do it. 65o it is very nice, but we say it has no
probative value.
THE COURT: Call your next witness.
MR. CLEMENTS: Your Honor, Defendant Intervenor
Wood rests. subject to the Senator Washington Beth ine. any
rebuttal, of course.
THE COURT: Mr. Clements. sometimes you need to go
to a political convention and when they call on Texas you
should rise and say Madame Speaker, Mr. Speaker, the State
of Texas casts umpteen votes, you know, for Joe Elow, 21
votes for something. the voice sounds good. Farticularly at
this time of day, about 5:35. All right. Where do we go
from here? Mr. Rios?
MR. RIOS: We don't have anymore witnesses. Your
Honor, except Sandy Torres, and unfortunately he is not
going to be back until next week. So we won't have him.
24
25
4-291
THE COURT: He really found a home in Ireland”
MR. RIOS5: That's right. We are not presenting
any oral testimony on Houston and Dallas. We have the
exhibits. they speak Tor themselves.
THE COURT: All right. You have nothing further
then? Now we come to either the State or Houston.
MR. HICKS: That is us. May I bring my books up?
You are really going to love this.
MR. TODD: Judge, while Mr. Hicks is getting that
cut, let me advise the Court that the additional witnesses
we were contemplating calling tomorrow, I believe Mr. Mow
got together with Mr. Cloutman and we are endeavoring to put
together a summary of the deposition to introduce as
testimony in that abbreviated form Tor the sake of time. I
think Mr. Mow is working on that at the moment. I assume he
will be successful and that we will be able to present Judge
Marshall ‘= testimony by way of summary rather than by live
testimony. 3
MR. CLOUTMAN: That is agreeable, Your Honor. And
llwe will stipulate that he will be mercifully short. I think
we can do it.
{Brief pause.)
MR. HICKS: Your Honor. do you actually want the
video tape in evidence? We will mark it. Your Honor, maybe
before we just actually get the witness up there I can go
24
25
through the exhibits.
THE COURT: Okay. Fine. Let me get some idea of
what you have, Mr. Hicks. What do you propose witness wise?
I know you have got exhibits.
MR. HICKS: How many and how long?
THE COURT: Yes. What are we looking at?
MR. HICKS: I think we are going to finish
tomorrow. We have Dr. Dyer to testify today. and then we
have six witnesses tomorrow, several of whom will be very
short. Dr. Taebel and David Richards will be expert
witnesses that will be somewhat longer, and 1 think we will
finish.
THE COURT: Okay.
MR. HICKS: We are not, although the first set of,
there is three volumes of exhibits and the first set has 1
through 6. There is no Exhibit 1. Just for good luck.
THE COURT: We are not going to roll snake eyes
with this bunch. | :
MR. HICKS: I just hope I don't roly 7 the Tirst
time. And then there is no Exhibit 1X. or 14. No. 13 is
also admitted for good luck. This is really for the benefit
ef counsel here, so they will know something about what we
are not doing. There is no Exhibit 6. Otherwise 2 through
40.
THE COURT: All right.
24
25
4-293
MR. HICKS: Also as an initial matter, the parties
have signed stipulations of fact that has to do with Dr.
Dyer‘'s testimony. Rather than having you sign it, if I can
just read it into the record.
THE COURT: Fine.
MR. HICKS: Really interesting. Section entitled
THE COURT: 1 love stipulations.
MR. HICKS: This saves about six witnesses. The
section titled Counties, Cities and Alphabetical Roster in
the Texas Legal Directory which are based on an accurate
computerized Bar membership records provided by the State
RBar of Texas are valid listings of all attorneys licensed
and practicing law in Texas. including those who receive
their licenses in the calendar year January through December
prior to the date of publication of the directory. All the
attorneys for all parties and intervenors signed this
stipulation.
Our first witness is Dr. Dyer. Mr. Guajardo is
going to be questioning him.
THE COURT: If you would, please raise your right
hand and take the oath.
{Witness sworn.)
JAMES ALAN DYER. WITNESS, sworn
EXAMINATION
Dyer — By the Court 4-294
BY THE COURT:
GG. Tell me your name, where you live and what you do,
please?
A. James Alan Dyer. I live in College Station, Texas. 1
actually live in Bryan, Texas, and teach at Texas A & M
University.
G. An Aggie?
A. I teach there, I didn't ——
Q@. Okay. Give me a little about your background, doctor,
iT you would. please.
A. Okay. I am a political science professor and I work at
the Public Policy Researchers Laboratory as a senior study
director in Charge of the survey program. I got my BA from
Indiana University back in 1967, finished my PhD. at the
University of Minnesota in 1975. I started teaching at
A & M in 1973 and have lived in Texas the whole time. My
major area of research has been in the area of public
opinion, American politics and survey research and
methodology.
G. What is the name of the swimmer, didn't he go to
Indiana University?
+A. I think he was a little bit after my time. Was it Mark
Spitz?
THE COURT: Yes, Uh-huh. He is making a comeback,
or trying to. All right. Fine. Go ahead.
SA TIA [A TS" AWE fT TT,
yp et
Dyer — By the Court 4-293
MR. GUAJARDO: Your Honor, the State of Texas No.
37 is Dr. Dyer’'s vita. I offer it into evidence.
THE COURT: No. 37 will be admitted.
DIRECT EXAMINATION
BY MR. GUAJARDO:
@. What current professional positions do you hold.
doctor?
A. As 1 indicated, 1 am an Associate Frofessor of
Political Science at Texas A & M, 1 am Senior Study Director
of the Public Policy Researchers Laboratory. and 1 am a
director of the Texas Rook.
GC. What does the Public Policy Researchers Laboratory do?
A. We do a lot of varied kinds of policy related empirical
research, a great deal of that having to do with various
types of survey research. As a part of the survey operation
we conduct the Texas Poll, do a quarterly survey of public
opinion in Texas which is published in the major newspapers
in the state. In addition to that we do a large number of
cther survey research projects, including the follow up
surveys for the Texas Department of Commerce. Texas
Department of Commerce surveys. We surveyed about 32,000
people last year 13 weeks after they got out of the job
training program. We do, this year we have done
approximately 14 survey projects ranging everywhere from
32,000 down to S00 for a local school district. We have
Dyer — Direct - Guajardo 4-296
done work for the National Science Foundation, a survey of
women researchers, survey for the Research Triangle
Institute in North Carolina under a subcontract to them for
a project they were doing for the Department of Housing and
Urban Development. We did a project for the Texas
Commission on Alcohol and Drug Abuse that involved
interviewing 5,000 people statewide for that survey. We
have done several surveys for the Texas Transportation
Institute that are done in behalf of the Highway Department.
That gives you some idea of the variety of activities,
survey related activities we do.
G@. And you have been retained by the State defendants to
conduct a telephone poll to determine the number of eligible
attorneys in counties in this suit?
A. That's correct.
GC. How does that poll compare with some of the polls you
have just discussed?
A. It is somewhat smaller in scope than say the JTFA one.
It 1s very similar, really, in a lot of respects. It was
about the same size as the typical survey in terme of the
time spent and the amount of effort involved, and that sort
ef thing. It was easier than some such as easier than the
RTI survey, but that is primarily, I don’t know what else to
say about it. Very standard for the project. for our
operation.
14_
Dyer — Direct - BGuajardo 4-297
MR. GUAJARDO: Your Honor. I move to gualify De.
Dyer as an expert.
THE COURT: I will recognize him as such.
MR. GUAJARDGO: At this time I would like toc coffer
Defendant's Exhibit No. 4, which is not only the actual
results of the survey. but tables, backup data and the
description of the procedures of the survey. I understand
there is a relevancy objection, but the reason I am offering
it now is because Dr. Dyer is going to be testifying to some
matters in it.
THE COURT: Yes?
MS. IFILL: ~The Houston Lawyers’ Association.
plaintiff intervenors, cbject to the admission of this
exhibit on the ariunds it is irrelevant. The pool of
qualified minority candidates is in no way relevant to this
lawsuit. Dr. Dyer, I assume, is going to testify that there
are no minority lawyers who are eligible, and from the
testimony we have heard over the last several days it is
clear there are at least some qualified minority candidates
to run for District Judge. at least in Harris County, and
have run in every contested race since 1980. That is
sufficient for this lawsuit.
THE COURT: I am going to overrule your objection.
Go ahead, Mr. Guajardoc. You have the same cobjection, Dallas
has the same objection, believe it or not. as Harris County.
2H
25
Dyer — Direct - BGuajardo 4-298
Okay.
BY MR. GUAJARDO:
a. Dr. Dyer, I would like to start off with a discussion
of methodology of the poll. Could you describe what the
survey instrument is?
A. The survey instrument is the questionnaire that is used
by each of the interviewers who actually conduct the
interview. That is the script they read and it is the paper
place they mark the responses to the questions on.
Gi. What was the first step you took in creating your
survey instrument?
A. There was a meeting with the Attorney General's staff
outlining the information that was required in the survey.
Particularly the one area of concern here was outlining the
particular legal requirements for being a candidate or a
person who could run for District Court Judge. That was a
legal issue that, of course, we had no background in. And
that information was provided by the Attorney General's
office. Taking that information we constructed the
questionnaire based on these legal limits. We constructed
some other questions based on our experience as people that
write a lot of guestions, and also some questions,
particularly ones involving race and ethnicity is the one we
commonly use in most of our surveys. As a part of that we
developed an introduction and some additional instructions
Dyer — Direct —- Buajardo 4-299
of what to tell interviewers in case certain questions came
up. The instrument itself was evaluated internally by our
staff reading it, checking it, pretested it with five
attorneys that were not in the areas being surveyed. Some
adjustments were made to the language to insure that the
questions were understandable, easily read, that we could
get valid responses from them. The instrument was returned
to the Attorney General's staff which approved it without,
as I recall, any objection. And at that point we printed
the instrument.
GG. All these steps were undertaken, 1 gather. to reduce
biases in your survey?
A. Yes.
CG. The guestions in a survey like this are very straight
forward. Basically we are asking for factual information,
unlike the situation you sometimes get in where you are
asking for opinions, where a very small word changes can
have an enormous impact on the way people respond.
Basically we wanted to get questions that were straight
forward, could be understood well by people answering them
and could get the responses that were meaningful without
biasing them in any way.
@. Did you at any point test whether those conditions were
met?
A. Well, I think the largest here, other than the pretest
24
25
Dyer — Direct - Buajardo {4-300
we have already discussed, was simply the fact that our
staff and your staff looked them over and really we could
not find any Shiic ations of any in which responses tc these
questions would be biased.
GQ. The next area 1 would like to discuss —— by the way,
the questionnaire itself 1s appended to the attachment 1.
The next area I would like to discuss is sampling. What
would you consider the universe of the poll?
A. The universe of the poll were initially all lawyers in
18 counties that were originally identified as, my
understanding was part of the suit. The document you have
there refers to 12 counties, it was reduced to that number
when that document was prepared and I understand there are
two in there that sare now irrelevant. But it was all_the
lawyers. The conclusions about the group. the group that we
are really concerned with, are primarily the ones that were
eligible. However, the initial starting point were all
lawyers in those 18, 12 or 10 counties. J
GG. And how did you get the lawyers in those counties?
A. All right. The first step was the Texas Bar
Association Director for 1988, which was provided to us by
the Attorney General's staff. Using the county ordered
iist of attorneys from those volumes, that constituted what
we considered the list or the universe that we were going to
sample. It was from that list then that all selections for
24
25
Dyer — Direct -— BGuajardo 4-301
the interview were made.
GQ. Is it from that list that you determined the sample
size
A. The Bar Association had provided through the Attorney
General's staff a computer printout indicating the size of
the population of attorneys at that time. The document that
that came from was dated 5/31 1989. We used that to
determine the population in each of the counties. The size
itself of the sample was determined by estimating the number
that we would need to sample in order toc have a confidence
interval of at least, of no more than plus or minus 2 and a
half percent which meant that in the sample that we drew
that we would have an error due to sampling within plus or
minus Z and a half percentage points around the actual value
that we found.
@. Why did you choose 2 and a half percent?
A. In discussions with your staff it was considered a
reasonable target given the purpose for which the data was
to be placed and the costs that would be involved in
gathering data. It is a reasonable, accurate number. In
fact, all of the, all of the numbers which come in with that
were considerably lower confidence intervals.
GQ. Is 2.35 percent of confidence interval standard in
polls?
A. Well, it depends a lot on the purpose. It is probably
Dyer — Direct -— Guajardo {4-202
better than most of the time. For example, the Texas poll.
the standard confidence interval we used is 3 percent. Many
surveys, o00, which is what I would normally do in a smaller
area, would have a confidence interval of about 5 percent,
plus or minus 5 percent. So that would be better tham it
would be typical. But clearly for this purpose we needed
one with a smaller confidence interval.
GG. You actually treated the counties differently as far as
this sampling?
A. Right.
BG. Will you explain that?
A. Each sample, basically each county was a separate
sample. And once we determined the number that we needed to
sample from each county, we then decided how we would go
about sampling it. Basically half of the counties, there
are five of them and the remaining ten or si» of them in the
document you have there. We ended up trying to talk to,
trying to reach every lawyer in the county. The remaining
ones wae et not need to sample all the lawyers, so we simply
decided, we took what is called a systematic sample of the
names from that list. The systematic involved determining a
skip interval. Simply put if you need half of them you take
avery other one. Although you do start with a random
starting point, either the first or the second one, but this
provides for a random sample of the list that is actually
24
25
Dyer — Direct — Guajardo {4-303
stratified by the order on the list. This means that it
insures that the sample in no way over or under represents
any part of the list. It is a standard procedure, probably
the most commonly used sampling methodology, sampling from a
list.
@. The next step would be the interviewing process. Can
you describe this?
A. Okay. The first thing that we do in setting up the
interviewing process is to have a training session for the,
in this case about, there were 15 interviewers and the
supervisors. All of our interviewers when they are hired
are given a four hour set of basic interviewing
instructions. Then as they get more experienced some of
them are given additional training in handling refusals and
various other things. In addition each separate project
will have a training period. The length of it depends a lot
on how complex the project is. If we have an hour, we did
one that lasted two days but those would be extremely rare.
After the training period then these interviewers were ready
to go. What we did was took the names that had been
selected out of the book and wrote what is called a call
record form. The name of the person to be contacted and the
telephone number, if it was available and in the directory.
We then assigned some of the interviewers to begin calling
directory assistance for those names not listed with
24
25
Dyer — Direct -— Buajardo 4-704
telephone numbers. The interviewers would begin the
interviewing process by taking a stack of these call
records, the ones with names on them, and begin the
interviewing process. The interviewers are instructed in a
centrally monitored phone room. Protocol, the standard
operating procedures that we Tollow is that at least 20
percent of the interviewers of the shift are monitored.
Monitored being involved having someone listen to one or
more of the interviews conducted by that person during one
of the shifts and filling out a Torm which indicates any
problems that they might be having, including any,
particularly centering on errors in questions and that sort
of thing. If problems come up then they can be corrected
quickly. The interviewing itself, when a person is called
on this particular interview we ask to speak to the
attorney. If the attorney was not available we asked to
speak to that person, usually that person's secretary or
legal aide. 1f the person, then the person. if we were
interviewing the attorney we simply ask them the questions.
If the legal aide was interviewed we asked them to answer
the questions about the attorney. If the legal aide or
secretary wasn t able or unwilling to do that we arrange to
call back when the attorney was available and try to reach
the attorney. The interview in either case would be
completed. The numbers that we could not reach. we would
Dyer — Direct -— Guajardo 4-305
try again. All disconnects we try at least one cther time
toc make sure it really wasn't mis—dialed. We also have to.
we also try five times to reach any number that rings but no
answer during different shifts during the week. One call
coming in the evening, Since we presume most of the numbers
were business numbers. So we tried, everybody had five
chances to be put in, to be called. At the end of the shift
the interviewers take their completed forms and their call
record forms for uncompleted calls for any reason up, the
supervisor sorts them out into those that have to be called,
those that might have scheduled call backs are put into
piles which indicate when they are going to be called so
that the supervisors for those shifts can make sure they are
called, and retire any numbers that might be completed or
disconnects or bad numbers. At that point we began to have
to replace parts of the sample or some of the numbers that
were inoperative or bad, or we could not use in the final
sample for one of the several reasons. 8
Q. Are those what you called retired numbers?
A. Yes, just a number retired once it is done, regardless
of what happened to it. Numbers that had to be replaced
were attorneys for whom phone numbers could not be
determined. In other words, they were listed in the
directory with no number, and attempts to find them through
directory assistance failed, attorneys for whom numbers were
TE RCA TN TT 4 NT AMA Cpe
Dyer — Direct - Guajardo 4-306
disconnected and no new numbers were available from
directory assistance, attorneys for whom there was no answer
after five attempts, attorneys who recently moved out of the
county they were listed in under the Texas Legal Directory,
attorneys who refused to provide necessary information, and
attorneys who did not meet the criteria for judicial
eligibility. That is, they had not practiced in the county
for the past, had not practiced Tah for the past four years,
they were not citizens of the State of Texas and had not
lived in the county for the past two years or were not older
than 25 years of age.
G3. Dr. Over, let me go back. You have created a survey
instrument; is that correct?
A. Right.
@. And then you determined the size of the sample that was
necessary in order to meet the 2.5 confidence interval, and
you sampled the ten counties. Did you get in all those
counties sufficiently large sample size to meet that 2.5
interval requirement?
A. Yes. We completed a large enough sample so that all
the confidence intervals for all the counties reporting were
2.5 or less.
@. Would you like some water?
A. Did you notice?
MR. HICKS: May I approach the witness with some
Dyer — Direct - Guajardo 4-307
® 1 ||water?
2 THE COURT: You may.
3 A. I was wondering, I was really getting nervous when I
4 |saw them passing notes back there. Thank you.
5 ||[BY MR. GUAJARDO:
6 @. The next thing you did is you created, you went toc the
7 Texas Legal Directory and created your sampling size in
8 those counties that you were not going to call everybody?
B A. Yes. That's right.
10 G0. How did that list get to the people who were actually
11 ||doing the interviewing?
12 A. As I indicated, we had a clerk who wrote the name and
13 || the telephone number of the samplang person onto the call
14 ||record form. And those were then taken to the supervisors
15 ||lwho then distributed them to the interviewers.
16 G8. You testified eaklieh that call backs were done. about
17 llcall backs. Were the ones that were a requirement or call
18 ||back, was the call back always done at the same time it was
19 ||loriginally made?
20 A. Oh, no. They were definitely not. They were rotated
21 || throughout the shifts. Since most of these calls, unlike
22 ||lmost of our surveys, are done during the day. they were
23 rotated between morning and afternoon shifts, and then if
24 lone call was done at night it would be done either at night
25 |lor on one of the weekend shifts.
© ——— EN TT SJ re A STAR, TTT TR TE wr i ST mp vi a —— AE 4 Thay APIA ES £3 yy. IN TC PE em pepe ER Ty LT I TN Sen NL wi SS Ne, Sf ST, + rs A PT ST rT a
ORES SOE ST pi PS : > 3
24
25
Dyer -— Direct -— Guajardo 4-308
a. In vour opinion were the interview procedures just
described standard in the industry?
A. Yes, they are very standard.
Gl. And the information that is call back and the record
forms were carefully gathered; right?
A. Yes. Frocedures in general were. 1 iwould say our
procedures are as good or better than most survey operations
that I am aware of.
Gi. The next step then would be data entry; correct?
A. Data entry, well, once the interview instruments are
actually selected they are edit checked by a supervisor.
Edit check means simply reading through them to make sure
all the questions were answered and there were no problems.
On a survey as simple as this there was unlikely to be any
problems. However. sometimes we encounter them, somebody
may skip a question or something. Then they are sent to
data entry. Data entry, there are two passes through the
data. It is entered twice. i1t is entered first by somebody
into a computer. It is entered a second time into the same
computer by a different person. The second time it is
entered the data entry is compared with the first. And if
there is a discrepancy the operator is notified and they
have to make a correction. The reason for that is to make
sure that, it really reduces the possibility of data entry
error to almost nothing. Once the data was entered then it
Dyer — Direct —- Guajardo 4-309
was all checked and then we could begin processing.
GG. And what computer program did you use?
a. In this particular case we used the statistical
analysis system, or 5A5, which is one of the probably two
most commonly used statistical systems in the country. This
was again a very straight forward little program, just
necessary to read in the data and produce the tables on
which the tables in this document are produced.
Gi. Okay. And that S5A5 computer program generated the
tables that are appended here?
A. That's correct. And in the attachment, the actual
printout from the computer are provided there. The data
were then taken from those and put into the table you see
present here.
@. Can you turn to table number 1, Dr. Dyer? Can you
describe what is in table number 17?
A. Table 1 is the basic data that we set out to collect.
This table includes only those people who are eligible.
That is, only attorneys who made it through the screening
questions for eligibility. The list is by county. The
first county is Bexar County. The total AARBRr of lawyers
in this sample was 492. We found the percent of attorneys
indicating they were Hispanic or whose offices indicated
they were Hispanic, 11.4 with a plus or minus 2.4 percent
confidence interval. The percent total Black was found to
Dyer — Direct — Guajardo 4-310
be 1.2, with an estimated confidence level of .8. And so on
dowrin the list. Dallas, 4935, Hispanics 2.4, 1.2 confidence
interval. Percent Black 1, with .1 confidence interval, and
SO On.
@. As you said earlier, all the counties meet the 2.57
A. That's right. The confidence interval actually range
from 2.4 in Bexar County as the high, down to a low 1 guess
of .5 for Jefferson County on the Hispanic, and the range
is, well, that incorporates, encompasses the range for the
Black as well.
@. Can you turn to table number 2, please? What is table
number 2, can you describe the table number 2 for the
record, please?
n
A. Table number 2 used the dats that was presented in
table 1 to produce the numbers estimated, eligible Hispanic,
eligible Black and total eligible attorneys in each of those
counties, using the Texas Bar Association data on the
number of attorneys and data from the survey on proportion
of attorneys we interviewed who were under the eligible. We
were able to estimate then the number of the total
population in Bexar County that were eligible. Then taking
ithe percentage of eligible attorneys who were found to be
Hispanic, we were then able to compute by taking a
percentage of the eligible attorneys who were Hispanics, we
were able to estimate the number of eligible Hispanics.
24
25
Dyer — Direct - Buajardo 4-311
Taking the number of the proportions of the percent of Black
eligible attorneys we were able to estimate then the actual
number of Black attorneys in Bexar County. Well, in all the
counties. If you look at Bexar County. the Bar Association
reported 3,344 lawyer population. We estimated 2,784 to be
eligible. 11.4 percent were Hispanic, which meant 317 were
eligible Hispanics. 1.2 percent were Blacks, which meant 34
Blacks we estimated to be eligible in Bexar County.
@. Can you go through each county and read the eligible
Hispanic and Black?
THE COURT: I can read them. Thank you, Mr.
buajardo. They are not written in Roman figures, they are
Arabic and I can read them.
BY MR. GUAJARDO:
GC. Can you turn now to table number 37 What is the
purpose of table number 37
A. The purpose of table number 3 was to provide some
comparisons with some other data that was available from
other sources. I might point out that one of the reasons to
do the survey was that no data was available on this
information on eligible attorneys. We had some indication
from Bar Association membership surveys, two really
membership surveys that included all the attorneys. One of
the surveys that we had some data on included not only all
attorneys in these counties but all attorneys in the state.
24
25
Dyer — Direct - Guajardo {4-312
However, one of the things that is useful is to try in =
sense triangulate or make it is to check what you have done
in terms of other sources of possible evidence for the
plausibility of it. And the other, another source of data
was some analyses done by the Attorney General staff on
Hispanic surname lists of people who were judged to be
eligible in terms of having lawyers long enough. What we do
in this table is simply present those findings. I might
point out that if you look at the bottom there. which is a
summary of them all, our survey found that that listed 12
counties, there were 3.4 Hispanics. According to the
Hispanic surnames there would have been 3.9. In the data
collected for the State Bar Association through a mail
survey they found 3.7. In terms of the percent HRlack we
found 2.3, the Bar Association reported 2.5 and the Bar
survey found 1.4. But that is statewide, and I would expect
that the counties that Wars invetusd in our sub-sample were
somewhat heavily Black than the rest of the state, which
might account for the discrepancy. Again the point here is
simply in some sense a reality check to make sure that what
we found was not out of line with what we expect to find
given other findings in the area.
@. Now move toc table number 4, please.
A. The purpose of this table is to document very
thoroughly exactly what happened to all the numbers that
TT CT, SNM A TUN MURA C3 CONN Rpt TT A re
24
25
Dyer — Direct - Buajardo 4-313
were called in the survey. ve called a total of in these 12
counties 6,764, or attempted to call. We were able to find
and determine complete interviews withi68.4 pareand of the
attorneys or their offices. We had 9.6 of the people, of
the numbers, were not listed in the directory and we were
not able to find the numbers through directory assistance.
A total of 1.1 percent of all the numbers called couid not
be, could not be called back, they were people who we had to
talk to the attorney and they were not available in the
period. We had 1.5 percent who refused to participate. We
had Z.46 that were disconnected or bad numbers in some way.
However, we had specific information that somebody told us
that this person had moved, left, died, were no longer
practicing. We did not count those. Thay were ineligible,
we didn’t count them in the eligible because we did not have
specific, we wanted to interview them or our information was
often was too sketchy to be that sure of it, but we had
reason to believe they were. Then we had 10.5 that were
just disconnected, bad numbers, in which we had no idea
where they went.
Let me comment on a couple, two points on this.
One is the very low refusal rate. Normally in surveys of
any type you have a certain number of people that won't
respond in a statewide general telephone poll. We did very
well with 75 percent, or 20 percent refusal. Or 25 percent
24
25
Dyer — Direct — BGuajardo 4-714
refusal is very good. And so that this is extremely low.
surprisingly low. Cooperation was very good.
THE COURT: It doesn’t surprise me a bit. Lawyers
will talk to anybody for long periods of time. Witness this
case, you know.
5. I would agree. wcept none of these were bzing paid.
THE COURT: There is a bunch of them here that are
not being paid, they have come to testify and they still
like to talk a long time.
A. At any rate, they talked to us, so there was very
little, which I think is particularly interesting in cases
where we are concerned that there may be some particular
reason people are not, or refusing to cooperate with a
survey. There was no evidence of that. The second point is
that in terms of the ability to contact, the Texas Rar
Association mail survey contacted 46 percent of the people
that they attempted to contact and at least reading what
they said in the Rar Journal were very happy with that. The
659.4 percent here was certainly lower than I would have
anticipated going into this, to be quite honest about it. 1
think the main thing to remember is that because of the
eligibility requirements that imposed having lived. or
required them having live in an area for a certain period of
time, two years, that evidence that people are moved out of
the area probably indicates that a fair number of people
A oy A Sy Sr
rays ENE SE HR EAE . =
24
25
Dyer — Direct - BGuajardo 4-315
that we could not find were not in the area any longer. We
made good faith efforts to try to reach everyone. We
followed procedures that would be considered standard in
terms of trying to do so, and this is what was available.
RY MR. GUAJARDO:
GQ. How would you compare the response rate in this poll
for example with the Spang—-Hill poll or the Rar Association
Pall?
A. As] indicated, I would say theirs was low for a mail
survey. Normally by rule of thumb anything less than 50
percent for a mail survey is again problematic, or if that,
I don't know, 50 percent is kind of a magic number in people
when people are talking about mail surveys. It may suggest
that lawyers are harder to find than we might anticipate,
from their data as well as ours. So our survey was much,
had a much better response rate than that, much better
response rate or much better ability to find than really
most, or certainly RY general population survey would have.
But in terms of certain professional populations it probably
was a bit lower. I would have guessed going in we might
have BO percent we could find, just as an educated guess.
But in general it was a good response rate, and particularly
heartening was the Sack that the refusal rate was not a
major contributor for the problem that we had in finding
people.
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Dyer — Direct —- Buajardo 4-316
® 1 a. In your opinion did you take all the necessary steps to
2 [|insure the poll met, was reliable in accordance with
3 ||standard procedure?
4 A. Certainly in accordance with standard procedures.
5 || There are 1,000 ways, I mean if vou put on one end of the
6 [||[continuum hiring private detectives to try toc find somebody
7 land on the other end just calling up as many as you can get
8 lon the Tirst call, we were in a very reasonable position
g ||lwith what we did.
10 GG. Are you Tamiliar with a bivariate regression analysis?
1 A. Yes.
12 G8. How would you compare. or how would the statistical
13 ||methodology you used compare with that, as far as
14 ||reliability, however you want to characterize it, the
15 ||methodology used in bivariate regressions?
16 fi. What we were doing is somewhat simpler, and that is
17 ||Just instead of trying to estimate a relationship between
18 || two properties we were trying to give an estimate of a
19 ||particular value. Hoth of the techniques, or both of the
20 || types of analysis have essentially the element in common
21 ||that they both assume a certain amount of random error, so
22 ||¥hat any parameter estimate in regression analysis or any
23 ||parameter estimate here is basically an assumption that
24 || there is error out there, and it is a random error factor
25 || that we have to accept.
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Dyer — Direct - Guajardo {4-717
MR. GUAJARDO: I will pass the witness.
CROSS EXAMINATION
EY M5. FINKELSTEIN:
@. EHriefly. Judge. Doctor, do you remember me from vour
deposition?
A. Yes.
Gi. Okay. I just have a very Tew questions. You said you
used the Texas Legal Directory to get the address and phone
numbers?
A. That's correct.
@. That you called? You are familiar, aren't you. with
the location of counties in Texas?
A. Generally speaking. yes.
a. Is Tarrant County right next to Dallas County?
A. Yes, it is.
a. And those are both counties that are involved in this
lawsuit?
A. That's correct.
@. So when you are calling lawyers you would call them at
their office address; isn’t that correct?
A. That's correct.
@. So if they lived in the other county, for example if an
attorney has an office in Dallas County and his home is in
Tarrant County you could well have been calling them in a
county where they would not have been eligible to run even
24
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Dyer — Cross — Finkelstein 4-318
though in fact they would have been eligible to run in their
home resident county.
A. That's correct. I mean if I could simply say that Tor
any group like that, for whatever reason that might have
been excluded. there are two things that would have to
happen for them to affect these results. One, they would be
a very large group. relatively large group. The second.
that they be quite a bit different from what the rest of the
county was like. So unless it is a major factor I would
not, or in my estimate of the situation the number of cases
where that would be true would be sufficiently small. I
don't know that I would want, I can't exactly imagine the
argument that you make to say that group should be
overwhelmingly more minority than the group that live in the
county.
MS. FINKELSTEIN: Judge. I would note that we did
have some testimony earlier this week to that point.
THE COURT: You did on Tarrant and Dallas
counties. I believe there were two that were mentioned, as
a matter of fact.
BY MS. FINKELSTEIN:
+3. You found that, the result of your studies showed
except for Crosby County there was at least one minority
attorney in each county that would be eligible to run for
the position of District Judge; is that correct?
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Dyer — Cross — Finkelstein 4-319
A. That's correct.
a. And just to remind you, Crosby County is only relevant
in this case as it relates to Lubbock County. Just two more
questions.
THE COURT: You have never been to Crosbyton?
MS. FINKELSTEIN: You are right. I have been to
Lubbock.
BY M5. FINKELSTEIN:
@. Doctor, assume with me that you have a county, please,
that has in it 100 lawyers, and assume with me that one of
them is Black and that there is a race for District Court
and that that Black attorney, one Black attorney runs
against an Anglo attorney. If everything is equal, wouldn't
you have a 50-50 chance the Rlack attorney would win and a
20-50 chance the White attorney would win, just like
flipping a coin”?
A. Unless that is a trick question, 1 think —
@. Tell me what, given that situation, what does it matter
what the eligible pool of Black lawyers is in the county, if
you start with me from what I assuming”?
MR. GUAJARDO: Your Honor, we didn’t offer Dr.
Dyer for this purpose.
THE COURT: If he can answer the question. he can
answer the question.
A. The question 1 guess is size of the pool of the
Dyer — Cross — Finkelstein 4-320
» 1 ||lminority attorneys in the county affect the outcome of the
2||-—— I am sorry, repeat your question.
3 i 6Y M5. FINKELSTEIN:
4 a. The question is does that have any relevance to what it
5|{lis that we are looking at in this lawsuit, which is when you
6 ||have got a contest shouldn't everybody come out equal?
7 A. Well, I am remarkably ignorant of exactly what it is,
8 ||lwhat the issues are. I understand in general terms what the
0 ||issues are, but I am not sure of the law involved as to in
10 {|what way the number of attornevs. I would make the
11 ||observation that obviously if the pool of minority attorneys
12 ||1s too small, that Trom a variety of standpoints the types
13 ||lof candidates or the viability of the candidates you get out
14 of that pool will be affected. Beyond that 1 really don’t
15 ||know how it affects the issues in this case.
16 @. Now, doctor. in your deposition we talked a little bit
17 ||about what were the reasons that the pool of eligible
18 ||[candidates, minority candidates, might be so small in Texas.
19 ||Do you remember we talked about that?
20 A. Yes, 1 do.
21 @. Would you mind explaining, repeating your opinion for
22 || the Judge?
23 A. Well, I was asked and made a point then that I didn't
24 |lconsider myself an expert in this at all, but I was asked if
25 ||it was not likely that discrimination in the past had
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Dyer — Cross — Finkelstein 4-321
something to do with it and I allowed having been in Texas
this many years I am sure it has had something to do with
Blacks and Hispanics going to law school.
@. Or not going to law school.
A. Or not going toc law school. I would, having said that
I would qualify that. I think that in the sense, I mean
that certainly was true. I don't really know the major
dynamics now of why Blacks and Hispanics aren't going to law
school. 1t seems to have less to do with legal limits of
any kind and differential drop out rates and all kinds of
things which I have absolutely no expertise to comment on,
even as an informed citizen.
MS. FINKELSTEIN: Thank you, doctor.
THE COURT: Mr. Guajardo?
MR. GUAJARDO: I just have one question.
REDIRECT EXAMINATION
BY MR. GUAJARDO:
@. Do the two Hlack lawyers that are in evidence here
affect the validity of this poll in any way?
A. No. 1 made the point that unless you could really
demonstrate this was a very large phenomenon, a couple of
isolated cases don't really affect it at all. There are,
there are situations of all kinds one could imagine, but
they would be marginal and wouldn't affect it. Anytime you
have a survey or any type of analysis that is very dependent
»
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Dyer -— Redirect — BGuajardo 4-322
on a small number of cases and would affect it greatly. vou
have a very serious problem in terms of drawing conclusions
from it. But this type of analysis really isn’t that
sensitive to that.
MR. GUAJARDO: Pass the witness.
THE COURT: Okay. Thank you very much. 1
or
) ow
we
appreciate it. See you all in the morning, not unti
Thank you.
(Court recessed for the evening.)