For at least six years, the district clerk in Brazoria County used a highly unusual and possibly illegal system to assemble jury panels. Under state law, jurors are supposed to be selected at random from the pool of those who’ve been called to jury duty. But Rhonda Barchak, a Republican who served as district clerk in the fast-growing county that stretches from the Houston suburbs to the Gulf Coast, had her own method. Barchak, who resigned in late August after having held the post since 2010, divided up jurors by geographical region, and then by race, to assemble panels for criminal, civil, and family-law trials. As a result of her idiosyncratic system, thousands of verdicts could potentially be overturned, and the county could face an avalanche of lawsuits claiming wrongful convictions.
Brazoria County district attorney Tom Selleck first acknowledged what he termed “irregularities” in an August 25 public statement, writing that “jury trial panels may have been assembled in a manner inconsistent with applicable statutes and law.” Two days later, Selleck announced that he had asked the Texas Rangers’ Public Integrity Unit to investigate. “The law requires jurors be selected at random,” said Selleck, also a Republican, “and it is this process that is alleged to have been conducted improperly.”
Civil rights activists, who have protested several times in front of the Brazoria County courthouse, allege that Barchak was rigging juries to put non-white defendants at a disadvantage. While Barchak has remained silent since stepping down, her attorney, Chip Lewis, gave Texas Monthly an account—published here for the first time—of her method of selecting jurors, asserting that her only aim was to assemble a “representative cross section” of the county’s population.
As in all Texas counties, eligible Brazoria residents are summoned to jury duty at random, based on an electronic list provided by the Texas Secretary of State. But when the selected jurors in Brazoria arrived for duty—usually on Monday mornings at the county courthouse in Angleton—Barchak’s method of dividing them up for trials diverged sharply from the systems used by other Texas district clerks, who typically draw cards randomly from a stack or use technology to automate a random selection.
According to Lewis, a defense attorney who has represented such high-profile clients as Enron chief executive Ken Lay, convicted murderer Robert Durst, and Mexican drug kingpin Osiel Cárdenas Guillén, Barchak would take the full stack of around 200 to 250 juror cards into a back room, where she and other county employees would first sort them into two piles: Pearland residents and non-Pearland residents. (The city, with a population of 122,000, is the conservative county’s largest, accounting for one third of its population. It is also one of the most politically moderate parts of the county.)
Next, Lewis said, Barchak would subdivide the two geographical piles into white and non-white jurors. She now had four stacks of cards: Pearland whites, Pearland non-whites, non-Pearland whites, and non-Pearland non-whites. Those stacks would then be used to assemble the venires (panels from which juries are drawn) for the week’s trials. The process by which Barchak assembled the final stack is unclear. But if she was aiming for a venire that reflected the county’s population, she had a problem: Brazoria County’s population has become more diverse, changing from 51 percent non-white to 57 percent non-white in the years since 2015. A venire evenly divided between white and non-white residents would have meant underrepresentation of people of color on juries.
Lewis said Barchak knew nothing about the trials for which jurors were being selected. The reason she divided the cards into four categories, he said, was to ensure a representative distribution of potential jurors. Texas does not specify the randomization method that clerks must use, he said, so Barchak’s system was fairer than simply shuffling the cards. “The process she’s doing gives the jury a better chance of being a cross section, which is what we’re supposed to do with a jury pool,” Lewis said. “Just taking the cards and shuffling them—maybe they shuffled well, and maybe they didn’t.”
Lewis claimed that Barchak’s system ensured greater minority representation on juries than a random shuffle, while also providing greater representation of rural areas. “The community [stretches] from Pearland to Freeport,” he said. “As a defense lawyer, I don’t want twelve people from Pearland judging my guy from Freeport. There’s a large cultural difference between Pearland and Freeport”—a small rural town—“although they’re in the same county.”
Selleck, the district attorney, confirmed for the first time on Friday that Barchack sorted juror cards into the four categories Lewis described. “I believe that’s generally the case,” he said. Citing the Texas Rangers’ ongoing investigation, which is expected to wrap up by the end of this month, Selleck would not comment further about what Barchak did with those four piles of cards, or about any other details of the case.
Barchak’s methods were widely known to county officials, Lewis said. “Multiple judges, prosecutors, defense attorneys, and dozens of other county employees were privy to the process of jury empanelment,” he said, “and no one ever expressed any dissatisfaction or complaint about the process, as the process did not disenfranchise [any] potential jurors.” Top officials, including Brazoria County Judge Matt Sebesta, declined requests for an interview.
Texas Monthly contacted 38 current and former district court employees to try to confirm Lewis’s description of Barchak’s system; all either failed to respond or declined to comment. The district clerks of nearby Wharton, Montgomery, and Matagorda counties said they had never heard of anyone using Barchak’s method. As in most small Texas counties, where juror cards are still used—some larger counties have switched to electronic systems, which generate randomized venires—all the cards are typically either shuffled in one big stack or mixed up on a table to create a stack. Barchak’s method, said Matagorda County district clerk Janice Hawthorne, “takes away the whole random process.”
In additional to potentially violating state law, Barchak’s system appears to differ from her own jury plan, which she submitted to the Brazoria County Commissioners’ Court for approval in 2018. The approved plan stipulated that the district clerk would “randomly select panels of prospective jurors.” Paula Hannaford, director of the Center for Jury Studies at the National Center for State Courts in Virginia, said Barchak would likely have needed specific authorization to diverge from the standard randomization process. “Without having a very explicit statutory or court authorization for doing that, it strikes me as being legally problematic.”
Lewis said that Barchak began using the system around 2015, when the Texas Legislature outlawed the controversial “key man” method of grand jury selection, under which jury commissioners picked friends and colleagues to serve on grand juries, which determine whether there is enough evidence to file charges against someone. But the Legislature did not alter the system for selecting regular trial juries, and it remains unclear why Barchak would have changed her method at that time. Lewis said Barchak received no training on how to randomize the cards, and that she learned the technique from other county employees. Lewis declined to provide the names of those employees. Nate Moore Sr., who served as deputy district clerk for sixteen years under Barchak’s predecessor, said the county had no consistent system for selecting the venires. Sometimes the cards were shuffled, and sometimes they were organized according to the order in which the jurors arrived for duty. At no point did they sort jurors by race or geographic region, he said. “It was a good system. I don’t know why [Barchak] moved away from it.”
Jeff Purvis has practiced law in Brazoria County for more than two decades, first as a prosecutor and then as a defense attorney. He began hearing rumors about Barchak’s system around the time of the DA’s announcement in August. “My question is, why did it have to be so complicated?” he said. “I just have to believe there was some purpose behind dividing the jurors between Pearland and the rest of the county. That is, by definition, not random.”
In late August the Commissioners’ Court appointed former municipal judge Donna Starkey as interim district clerk. Among the district clerk candidates in next year’s election is Barchak’s former chief deputy, Republican Cayla Meyers, who recently resigned. Starkey and Meyers declined to speak about Barchak’s system. Meyers’ attorney, Dan Cogdell, wouldn’t describe the system, but said it involved an attempt to ensure a more diverse venire. “Their attempt was to increase the racial inclusiveness,” Cogdell said, “not decrease the racial inclusiveness.”
If courts find Barchak’s method illegal or unconstitutional, thousands of criminal, civil, and family court verdicts could be subject to appeal, and the county may be open to civil liability. “There are parents out there who had their rights terminated,” Purvis said. “A mother might say, my child was taken away from me, and that was illegally done by a jury. There’s a tremendous amount of liability on the part of the county.”
Veteran Texas attorney David Sheppard, who recently retired after practicing criminal law for more than forty years and was as an adjunct lecturer at the University of Texas School of Law, said he had never heard of a system like Barchak’s. He rejected Lewis’s explanation that Barchak never received proper training and said her system likely violated state law.
“You don’t need training to read the Code of Criminal Procedure,” Sheppard said. “It’s not that hard.”