Shrouded in the jury box

From the Summer 2008 issue of The News Media & The Law, page 6.

In 2003, as the federal court system prepared to beef up its collection of criminal cases on the Internet, broadening access to thousands of documents previously confined to clerks’ offices, the U.S. Judicial Conference gave pause to the side effects.

What if would-be criminals went scavenging through paperwork that would otherwise have collected dust on a remote courthouse shelf? Could names, social security numbers and bank accounts fall in the hands of identity thieves, or others who would put them toward misuse?

And so the Conference set about amending its access-and-privacy policy, demanding that the bulk of identifying personal information be redacted from public case files.

In a move that surprised open-courts advoactes, that included the names of federal jurors.

“Many of us testified regarding the electronic access policy,” Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, said. “It never occurred to me we would end up with anonymous juries as a result of the change.”

Five years later, the breadth of the impact of that shift toward juror anonymity isn’t clear. Particularly at the state level, but even among the federal districts, statutes and policies vary.

The U.S. Marshals Service recorded last year a total of seven instances of “inappropriate communications” — including threats toward jurors — throughout the federal court system. That was unusually high; between 2002 and 2005, there were only two or three cases a year.

But juror tampering was nonetheless high on the list of privacy concerns when the Conference went about updating its records policy in 2003, said Dick Carelli, spokesman for the Administrative Office of U.S. Courts.

As it stands now, the policy bans from the public case file all juvenile records, pre-sentencing reports, warrants that haven’t been served and “documents containing identifying information about jurors or potential jurors.”

That doesn’t keep reporters from hearing jurors’ names in court, Carelli cautioned. And it doesn’t stop them from asking a judge for the jury roster after a trial — which is when reporters are presumably most interested in knowing who sat on the panel.

What the rule could indicate, though, is how far the judiciary has yawed toward juror secrecy in recent decades.

Indeed, Carelli said, the 2003 rule change was meant to signal across the federal court system that judges should be cautious with so much identifying data in its hands: “The courts have been increasingly trying to make jury duty more appealing,” he explained.

A promise of anonymity, at least during the trial, is seen as one way of making that happen.

Where it all started

Decades after their 1977 debut at a New York drug lord’s trial, in U.S. v. Barnes, fully anonymous juries have found far broader purpose amid technology-era concerns: media excesses, witness intimidation and identity theft.

In the last decade, anonymous juries have become incrementally more routine, even in white-collar cases. One in Louisiana convicted former governor Edwin Edwards in a 2000 federal corruption case; in 2004 a federal judge in New York City ordered the media not to report the names of jurors in the obstruction trial of banker Frank Quattrone. That order was overturned on appeal.

Josh Marquis, a district attorney in Oregon who is on the board of the National District Attorneys Association, said jurors’ names are still withheld much more often in federal courts than at the state court level. In more than 20 years, he said, he’s never requested an anonymous panel.

“You’re talking about organized crime cases, cases where people are genuinely terrified — and with justification — that someone might target them,” Marquis said. “For the vast majority of the cases it’s unnecessary.”

Indeed, at the federal level, the Eastern District of Kentucky enacted a similar blanket rule just this summer refusing to give out juror names. That move was in response to a newspaper request for access.

Free press advocates quickly decried the rule and said it would collapse on appeal, but Chief Judge Jennifer Coffman insists its legal basis is sound.

Clampdown in Kentucky

In early June, [Louisville] Courier Journal reporter Andrew Wolfson wrote to a senior federal judge in Kentucky’s Eastern District asking for the names of jurors sitting in U.S. v. Gallion, a high-profile fraud case.

“We would not contact any jurors before a verdict is announced and the jurors are released by the court,” Wolfson said in the letter, explaining that he wanted to start tracking down phone numbers beforehand.

That request sparked a debate among the judges. Wolfson’s reply was dated June 24: “While you are certainly free to employ your own resources in order to learn the jurors’ identities and locations and contact them,” Judge Coffman wrote, “the court respectfully declines your request for a list of jurors.”

Along with her letter, Coffman issued an updated general order specifying that while lawyers can get juror information seven days before trial for voir dire — the jury selection process — “under no circumstance shall juror information be provided to any other person.”

The outcry over a public’s right of access to court hearings was swift. “I do think a blanket order like this without an opportunity for the public to be heard … appears contrary to First Amendment case law,” media lawyer Monica Dias told one newspaper.

But Coffman says the general order stemmed from ample case law research.

There are different levels of juror anonymity. Jurors might be referred to only by their first names, or by number; in some places their names are only redacted from the public case file, in keeping with the Judicial Conference policy.

Several years ago, after a handful of threats to jurors, both the eastern and western Kentucky districts started referring to jurors by numbers in court, Coffman said. Then a pair of back-to-back juror tampering reports prompted a 2007 general order restricting the lawyers’ access to their names.

“It’s not as thought it all happened at once,” Coffman said. “It’s happened incrementally.” She added, “This whole matrix wouldn’t have existed way back when.”

While there’s strong case law placing jury questionnaires and the voir dire process squarely in the open-trial domain, the public right to know, particularly during a trial, who sits in the jury box is widely seen as a qualified one. Courts have typically held that judges can pick anonymous juries if there’s a clear and articulated reason to worry about tampering or safety threats.

But Carelli said the general expectation is that federal jury lists become public upon request after the verdict, or once a “cooling off” period has passed.

Coffman, when asked by a News Media & The Law reporter if the order might hinder a free press or stop a journalist from turning up potential flaws in the jury system, said: “The attorneys are responsible for doing their juror research.”

So is the move toward totally anonymous juries an affront to the First Amendment? “We don’t think so,” Coffman said, “given the fact that all the proceedings are open to the public, and given the fact that we have this general order, plus what we say in court” advising jurors that they can choose whether to speak to reporters.

Contrast Coffman’s decision with that of the U.S. Court of Appeals in Philadelphia (3rd Cir.) which, in early August, filed a 118-page opinion in U.S. v. Cyril H. Wecht saying the media has a presumptive right of access to jury names.

Judge D. Brooks Smith found that juror names have been part of the public record for centuries, and the corruption trial of Wecht, a local coroner, was not a grave enough reason to ignore the tradition. The trial judge had ordered an anonymous jury, but the appeals court stepped in with an emergency order granting a media request for public access to the juror names.

“The prospect that the press might publish background stories about the jurors is not a legally sufficient reason to withhold the jurors’ names from the public,” Smith wrote. “Although such stories might make some jurors less willing to serve or more distracted from the case, this is a necessary cost of the openness of the judicial process.”

In the states

At the state level, the use and acceptability of anonymous juries is even less uniform than among the federal districts.

Take Indiana, where last year an appeals court refused to overturn the triple-murder conviction of Carl Major. The case, Major v. Indiana, involved a home-invasion robbery that turned deadly for three people in the Gary area; Major, sentenced to 175 years, appealed on several grounds.

One was the anonymity of the jury that convicted him.

The court agreed that trial judges ought not rely “solely upon a local rule authorizing the wholesale use of anonymous juries.” There needed to be a case-by-case analysis.

But the county where Major was tried had just such a rule.

In the written opinion, Judge Cale Bradford wrote that that local standard ought to be thrown out in favor of a statewide policy in line with the basic, general consensus among federal and state courts nationwide on anonymous juries: That they be used only in cases where “the trial court concludes that there is a strong reason to believe that the jury needs protection,” and where the judge takes “reasonable precautions” to “minimize the potential prejudice to the defendant.”

In other words, jurors shouldn’t be led to believe that their anonymity is meant to protect them from a dangerous defendant.

In deciding whether the jurors actually need protection, the Indiana court — like others before it and since — said judges might consider links to organized crime in the case, and if witness intimidation has been a problem.

Also, Bradford wrote, the judge could weigh “whether publicity regarding the case presents the prospect that the jurors’ names could become public and expose them to intimidation or harassment.”

There was scant consideration of the public’s right of access to a court proceeding.

The Utah Supreme Court took up media scrutiny in January in State v. Ross.

According to that opinion, denying in part Ross’s appeal of a murder conviction, the trial judge had opted for an anonymous jury specifically “to protect the jury from media exposure.” Justice Ronald Nehring recommended courts take up the same two-part test as in Major: articulating reasons to believe the jury could be at risk from “external sources,” and taking care that the defendant’s rights not be trampled.

Just how might a judge keep a jury from walking into court afraid of the defendant? One way, Nehring wrote, is to emphasize, as the trial judge in Ross did, that the media is the monster: The Ross jurors were told their anonymity was to protect their privacy and to shield them from “potential media harassment.”

Even where the Ross and Major courts advised caution in the use of anonymous juries, the main concern was for the defendant’s fair trial rights. The public right of access to courts, if mentioned at all, was viewed as a distant second priority.

The trend toward anonymity could foretell an increasingly difficult struggle for reporters making a case for transparency in the jury system.