Summer 2005

The Reporters CommitteeFor Freedom of the Press

Summer 2005

The Reporters CommitteeFor Freedom of the Press

Secret Justice:

Secret Juries

Courts are finding ways to

shield jurors’ identities from

the news media and the

public, even in cases where

there is no threat of harm.

Judges tried to keep the jurors’

names secret in the Martha

Stewart and Frank Quattrone

cases, and four reporters were

held in contempt for contacting

jurors in the murder-for-hire

trial of Rabbi Fred

Neulander. Judges

often seem slow to

recognize that secret

juries jeopardize the public’s right

to know how its courts work.

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SUMMER 2005PAGE 2

The American judicial system has,historically, been open to the public,and the U.S. Supreme Court has con-tinually affirmed the presumption ofopenness. However, as technology ex-pands and as the perceived threat ofviolence grows, individual courtsattempt to keep control over proceed-ings by limiting the flow of information.Courts are reluctant to allow media ac-cess to certain cases or to certain pro-ceedings, like jury selection. Courtsroutinely impose gag orders to limitpublic discussion about pending cases,presuming that there is no better way toensure a fair trial. Many judges fear thathaving cameras in courtrooms will some-how interfere with the decorum andsolemnity of judicial proceedings. Suchsteps, purportedly taken to ensure fair-ness, may actually harm the integrity ofa trial because court secrecy and limitson information are contrary to the fun-damental constitutional guarantee of apublic trial.

The public should be the beneficiaryof the judicial system. Criminal pro-ceedings are instituted in the name of“the people” for the benefit of the pub-lic. Civil proceedings are available formembers of the public to obtain justice,either individually or on behalf of a“class” of persons similarly situated. Thepublic, therefore, should be informed— well informed — about trials of pub-lic interest. The media, as the public’srepresentative, needs to be aware ofthreats to openness in court proceed-ings, and must be prepared to fight toensure continued access to trials.

In this series, the Reporters Com-mittee takes a look at key aspects ofcourt secrecy and how they affect thenewsgathering process. We will exam-ine trends toward court secrecy, andwhat can be done to challenge it.

The previous installments of this“Secret Justice” series concerned anon-ymous juries (Fall 2000), gag orders ontrial participants (Spring 2001), accessto alternative dispute resolution proce-dures (Fall 2001), access to terrorismproceedings (Winter 2002), secret dock-ets (Summer 2003), judicial speech(Spring 2004), grand juries (Fall 2004),and celebrity trials (Spring 2005).

This report was researched and writtenby Kimberley Keyes, the 2004-2005 Mc-Cormick-Tribune Legal Fellow at the Re-porters Committee.

Secret Justice:A continuing series

By Kimberley KeyesAs the media continues to scrutinize

juries in high-profile cases, federal and stateauthorities are making it more difficult forthe public to identify those who sit in judg-ment of others.

Experts say the use of anonymous juries— whose individual identities are kept com-pletely secret, even from the parties to acase — is on the rise. Such juries are mostoften empaneled in cases involving orga-nized crime or terrorism, where the judgehas determined there may be a real risk ofjury tampering or threat to juror safety.

But even in cases where no such dangerappears to exist, courts and legislatures areusing other tactics to shield jurors’ identi-ties from the press. The measures — fromrefusing to release jurors’ names and ad-dresses and banning jury lists from publiccase files, to selecting juries behind closeddoors or ordering the press not to publishjuror names said aloud in open court —occur with alarming frequency as concernabout protecting personal privacy swells.

Free-press advocates say secret juriesjeopardize the public’s right to know.

“I don’t think most members of thepublic understand that personal privacy isone side of a two-sided coin — the otherside being the public interest — and everytime we turn over that side of the coin toprotect privacy, we lose the ability to pro-tect the public interest,” said Society ofProfessional Journalists President IrwinGratz, a news producer for the Maine Pub-lic Broadcasting Network. His state recent-ly passed a law keeping the names andaddresses of jurors secret even after theirjury service has ended.

Secret juries also can violate the FirstAmendment rights of the press. In March,a three-judge panel of the U.S. Court ofAppeals in New York City (2nd Cir.) inval-idated a judge’s order forbidding the mediafrom publishing the names of jurors re-vealed in open court during the trial offormer Credit Suisse First Boston execu-tive Frank Quattrone. (U.S. v. Quattrone)The same court ruled in 2004 that thejudge’s decision to ban the press from at-tending jury selection in Martha Stewart’strial was unconstitutional. (ABC v. Stewart)

Media lawyer David Schulz of LevineSullivan Koch & Schulz in New York said

Secret Juriesefforts by the courts to keep juror identitiesconfidential are usually a reaction to in-tense media coverage, particularly in high-profile cases.

“I think judges have natural instincts towant to protect jurors and avoid subjectingtheir private lives to the glare of nationalpublicity just because they’re called upon toserve on a jury,” said Schulz, who success-fully represented the media during the Stew-art trial.

The judge in the Quattrone case, forexample, said in shielding the jurors’ iden-tities he was trying to avoid a Dennis Ko-zlowski-style mistrial. The six-month-longfirst trial of the former Tyco executive hadended in a mistrial less than one week ear-lier, after newspapers published the nameof a juror who allegedly made an “OK”gesture to Kozlowski’s defense team. Thejuror reported receiving a phone call anddisturbing letter after her identity was re-vealed.

Despite the risks, uncovering juror iden-tities has both societal and practical bene-fits.

“Knowledge of juror identities allowsthe public to verify the impartiality of keyparticipants in the administration of jus-tice, and thereby ensures fairness, the ap-pearance of fairness and public confidencein that system,” a three-judge panel of theU.S. Court of Appeals in Boston (1st Cir.)said in 1990. The court overturned a feder-al judge’s refusal to give Boston Globe re-porters the names and addresses of jurorswho sat on a high-profile criminal trial. (Inre Globe Newspaper Co.)

People could suspect that only thosewith certain social, political or even crimi-nal connections were chosen as jurors onspecific cases, the appeals court stated. “Itwould be more difficult to inquire into suchmatters, and those suspicions would seemin any event more real to the public, ifnames and addresses were kept secret,” saidthe court.

Information about jurors enhances pub-lic knowledge of the court system, “and canbe important to public debate about itsstrengths, flaws and means to improve it,”the court said. Public knowledge of juroridentities also could deter potential jurorsfrom intentionally misrepresenting them-selves during jury selection.

SUMMER 2005 SECRET JUSTICE: SECRET JURIES PAGE 3

While the trial judge assumed the Globejust wanted to interview jurors about theirdeliberations, “other avenues of inquiry areconceivable,” the appellate court noted.“Juror bias or confusion might be uncov-ered, and jurors’ understanding and re-sponse to judicial proceedings could beinvestigated.”

Inquiring mindsIn 2001, The Philadelphia Inquirer inves-

tigated whether the jury forewoman in thefirst murder trial of Rabbi Fred J. Neuland-er actually lived in the New Jersey countywhere the trial took place, as state lawrequired. Days after the court had declareda mistrial due to a hung jury, the paperpublished an article naming the jury fore-woman and quoting her as saying she hadbeen “staying with a friend” in Philadel-phia.

“I just see that kind of story as doingmy job, basically,” said Inquirer reporterEmilie Lounsberry, one of the article’sauthors.

However, before the trial Superior CourtJudge Linda G. Baxter had ordered thepress not to contact jurors and not to iden-tify them in any way — and she refused tolift the orders after discharging the jury,due to the impending retrial.

As a result of the Nov. 16, 2001, article,which also included quotes from anotherjuror regarding the panel’s deliberations,Lounsberry and fellow reporters GeorgeAnastasia, Joseph A. Gambardello and

Dwight Ott were found in civil contemptfor violating Baxter’s orders. The contemptfinding came in spite of a ruling by the NewJersey Supreme Court that the prohibitionagainst naming jurors was unconstitution-al. (State v. Neulander)

The reporters were fined $1,000 eachand all except Gambardello were orderedto perform community service. A New Jer-sey appellate court overturned the con-tempt judgments against the reporters inMay 2004.

Lounsberry, who has covered courts off andon for 20 years, said it was “very unsettling tobecome a defendant for doing my job.”

“I really sympathize with what it’s like(for a judge) to manage a difficult trial,” shesaid, noting the proliferation of media cov-erage of court cases. “I understand judgesreally are trying to protect juries and trials- but there has to be some way for reportersto be unfettered in doing our job.”

Schulz said that historically, the namesof jurors were widely known, particularly insmaller communities. He pointed to thecase of Dr. Sam Sheppard, a suburbanOhio physician accused of killing his wife.Three Cleveland newspapers printed thenames and addresses of the 75 prospec-tive jurors called for the 1954 trial ofSheppard, whose story inspired the tele-vision series “The Fugitive.” (Sheppard v.Maxwell)

Half a century later, things are not muchdifferent, said Schulz: Big trials still capturethe public’s attention.

“What’s different today is the number ofpeople whose attention can be focused on asingle trial because of modern technology,”he said.

He said judges may also hope to discour-age jurors and potential jurors from seekingthe limelight in a celebrity trial, as wasevident during jury selection in the MichaelJackson trial. Two jurors who sat on thecase recently announced their intent towrite books about their experience.

But the negative impact of using secretjuries may outweigh any perceived benefit,according to Schulz.

“If we’re going to go to a system that sayswe’re going to have essentially a black box,and if you’re at a criminal trial and 12people are going to walk in and they’regoing to pass judgment and we’re not goingto tell you who they are or what issues wereimportant to them after the fact be-cause you not going to be able to talk tothem, it ’s going to fundamentallychange our understanding of how thecriminal justice system works and thepublic confidence in the reliability ofthe outcome,” he said.

Access in federal courtsState courts, including Ohio and Mich-

igan, have held that the First Amendmentgrants a qualified post-trial right of accessto juror names and addresses. (State ex rel.Beacon Journal Pub. Co. v. Bond; In re Disclo-sure of Juror Names and Addresses) The OhioSupreme Court also found a qualified right

The Second Circuitinvalidated a

judge’s orderforbidding the pressfrom publishing the

names of jurorsduring the trial ofFrank Quattrone,

left. The same courtlast year ruled thatbanning the press

from attending juryselection in MarthaStewart’s trial was

unconstitutional.AP PHOTOS

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SUMMER 2005PAGE 4

of access to jury questionnaire forms, which courts use to deter-mine whether potential jurors are suitable for service. In somestates, the list of jurors’ names is put into the case file, becomingpublic record after the trial ends.

A new federal court policy, however, mandates that documentscontaining identifying information about jurors or potential ju-rors are no longer included in the public case file and are unavail-able to the public, either electronically or at the courthouse. Citing“security and law enforcement issues unique to criminal case fileinformation,” the Judicial Conference — the principal policy-making body of the federal court system — adopted therestriction in March 2004 as part of its guidelines permit-ting electronic access to criminal case records in federalcourts. (See http://www.privacy.uscourts.gov/crimimpl.htm)

The federal district court in Trenton, N. J., cited the new policyin denying access to the names of jurors who sat on the publiccorruption trial of former Mercer County Chief of Staff HarryParkin earlier this year, the Times of Trenton reported.

Karen Redmond, a public information officer for the Admin-istrative Office of U.S. Courts in Washington, D.C., said despitethe new policy, the press should still have access to jurors’ identi-ties after a trial is over. Juror names are available in the jurymanagement database maintained by each federal district court,allowing reporters to find out juror information at the trial’s end,she said.

“That [policy] was designed so you wouldn’t be able to get thenames electronically prior to a verdict or off the case file,”Redmond said.

But it may not be so simple. In July, a News Media & The Lawreporter visited the federal district courts in Washington, D.C.,and Alexandria, Va., and requested the names of jurors from thejury management database in specific criminal and civil cases.Clerks at both courts denied the requests, saying the public doesnot have access to the jury management database.

“We never give out jury names” without an order from thejudge, said Alohna Jones, jury administrator at the federal districtcourt in Washington.

Phone calls to federal district courts around the nation yieldedsimilar results. Jury administrators in Boston, New York City,Cleveland, Madison, Wis., Wilmington, Del., and Birmingham,Ala., said they would not release juror names without a judge’sauthorization. Others simply referred press inquiries to otherofficials.

“Everything in this office is extremely confidential,” said PeggyMcCarragher, jury administrator for the federal district court inSan Diego. She said all media requests had to go through the courtclerk’s office.

Edward Adams, the public information officer for the Alexan-dria federal court, said he discloses the names and addresses ofjurors who served on a case unless the court empaneled ananonymous jury, which is rare. He said “as a courtesy” he informsthe trial judge of the request, but that in his three years at the court,no judge has declined to release the information.

“The short answer is, we have provided the names of jurors toreporters who ask,” he said.

In July, U.S. District Judge William Sessions, who presidedover the recent murder trial of Donald Fell — the first death-penalty case in Vermont in nearly 50 years — initially refused togive the names and addresses of the jurors to The Burlington FreePress, said the newspaper’s attorney, Megan J. Shafritz of Gravel& Shea.

On the day the jury began deliberating, the media notified thecourt clerk’s office that it would seek to intervene in the case tochallenge the judge’s refusal, she said. It turned out to be unnec-essary.

Even if a court can refuse to disclose jury information inan extraordinary case, it probably cannot stop reportersfrom trying to track down jurors on their own.

U.S. District Judge Edith Brown Clement’s orders tothe media not to “interfere with” or “circumvent” herdecision to empanel an anonymous jury in the September2000 trial of former Louisiana Gov. Edwin Edwards andhis associates was an unconstitutional prior restraint onnewsgathering, the U.S. Court of Appeals in New Orleans(5th Cir.) held, somewhat grudgingly, in 2001. (U.S. v.Brown)

Clement’s orders were not fully enforceable since thetrial court could not sanction violations that occurredoutside its jurisdiction. Additionally, the ambiguity of theterms “interfere” and “circumvent” rendered the ordersoverbroad. Finally, the directives could fail to protectjurors because “restraining the press from independentinvestigation and reporting about the jurors would notnecessarily deter defendants” from interfering with thejudicial process, the court said.

“With considerable doubt, we conclude that [the or-ders] were unconstitutional insofar as they interdicted thepress from independent investigation and reporting aboutthe jury based on facts obtained from sources other thanconfidential court records, court personnel or trial partic-ipants [who were subject to a gag order],” Judge Edith H.Jones wrote for the court.

Thus, it seems reporters are free to use time-honoredtechniques for gathering news on jurors, such as attendingjury selection and writing down the names called out, orwaiting until the trial is over and approaching jurors in thecourthouse parking lot. — KK

“At the end of the day, I learned from the court clerk that thejudge had changed his mind and would release the names of thejurors after they had rendered their verdict,” said Shafritz, whoalong with colleague Robert Hemley was prepared to argue thatwithholding the jurors’ identities implicated First Amendmentrights of newsgathering and access to criminal trials.

The federal district court in Burlington, Vt., releases jurors’names and the city or town in which they live within seven days ofthe end of the trial, according to Court Clerk Richard Wasko.Federal case law mandates such disclosure unless it is a “sensitive”case, he said.

Each federal district court has a “jury plan” for selectingpotential jurors. Title 28, Section 1863 (b)(7) of the U.S. Code,which governs jury plans, mandates that each court determinewhen “the names drawn from the qualified jury wheel” will bemade public. “If the plan permits these names to be made public,it may nevertheless permit the chief judge of the district court . . . tokeep these names confidential in any case where the interests of justiceso require,” the law states.

The Administrative Office of U.S. Court is advising federaltrials courts to review their jury plans in light of the March 2004policy keeping juror names out of the public case files, said SeniorProgram Specialist David Williams. He noted that some federalcircuit courts recognize a qualified right of access to juror infor-mation.

Under Vermont’s jury plan, the names of potential jurors arenot made public, Wasko said. “But once a jury has been selected,

Tracking down jurors

SUMMER 2005 SECRET JUSTICE: SECRET JURIES PAGE 5

there is a right to know and I don’t think thejudge can hold on to that [information]forever,” he said.

Reporters may be able to get the namesof jurors in federal cases predating the 2004policy simply by digging through the casefile. For example, the bulging file on U.S. v.Watson in the federal district court in Wash-ington, D.C., contains the full names ofpotential jurors in the 2003 case, in which aNorth Carolina tobacco farmer was con-victed of making bomb threats on the Na-tional Mall. Handwritten notes on the sheetindicated which people were chosen as 12jurors and two alternates in the trial offarmer Dwight Watson, who turned out tobe carrying insect repellant. (The file alsocontained notes from the jurors, signed bythe foreman, including one that said, “Maywe see the Raid can.”)

Another way to identify jurors is throughjury selection. Because the U.S. SupremeCourt held in Press Enterprise Co. v. SuperiorCourt of California (“Press Enterprise I”) thatthe First Amendment requires the jury-selection process — called voir dire exam-ination — to be open to the public, reporterscan learn jurors’ names during the proceed-ing or by obtaining a copy of the transcript.The Times of Trenton reported that ittracked down several jurors who sat on theParkin trial by the phonetic spelling ofnames said aloud in open court.

Reporters covering the 1993 federal rack-eteering trial of the founders of Crazy Ed-die’s electronics store were not so lucky.The judge asked the press to leave theovercrowded New Jersey courtroom dur-ing jury selection to accommodate the highnumber of potential jurors. When the me-dia asked for the jurors’ names and address-es at the end of the trial, the judge responded

by sealing the transcript of the voir direproceedings and other records. The U.S.Court of Appeals for the 3d Circuit re-versed, holding the judge failed to makefindings to justify the sealing. (U.S. v.Antar)

Sometimes, potential jurors are referredto by number rather than name during voirdire to protect their privacy. This methodleft The New York Times to speculate on theidentities of jurors during the recent fraudtrial of former HealthSouth CEO RichardScrushy in Birmingham, Ala.

“[J]uror No. 467, who expressed doubtover unanimity in her note to the judge lastweek, may be one of three black women onthe jury,” the Times reported May 31.

As dissent among the Scrushy jurorsappeared to threaten a mistrial, the newspa-per used information from jury-selectiontranscripts to compile profiles of the 12jurors, charting their gender, marital statusand hobbies. One man, married with twoyoung children, “[l]ikes to hunt and fish,”the Times reported; another juror, themother of a young child, enjoyed “shop-ping, sewing and architecture.” The juryacquitted Scrushy of all charges in June.

Referring to jurors by number ratherthan name can raise concerns for a fair trialas well as for public access, since it may leada jury to think it has reason to fear thedefendant. The Ohio Supreme Court in2001 upheld the use of an anonymous juryin the murder trial of a man convicted ofgunning down his stepfather. Because thedefendant did not object to the trial court’spractice of keeping the names and address-es of all jurors secret, the high court refusedto consider the propriety of the rule, “eventhough we recognize that [it] implicatesimportant concerns that would clearly be

worthy of review by this court if the issuehad been properly presented.” (Ohio v.Hill)

In the Martha Stewart case, where jurorswere selected in the judge’s robing room,the press learned the identities of the jurorsat the end of the trial. The judge’s prac-tice was to poll the jury members by namewhen they returned a verdict, media law-yer Schulz said.

Maine lawState law may restrict how much infor-

mation the public receives about a jury. InJune, Maine legislators passed a law shield-ing the names of jurors and prospectivejurors from the public even after their juryservice ends.

Instead of requiring courts to explainwhy the names should be kept secret, thenewly amended Title 14, Section 1254-B ofthe Maine Revised Statutes requires mem-bers of the public to show why jurors’identities should be revealed. Attorneys andlitigants who act as their own attorney mayhave access to juror names and qualificationforms for use during jury selection, but maynot disclose the information to anyone with-out the court’s permission.

Media lawyer Shafritz said the law al-lowing parties but not the public to knowjurors’ identities “seems like a direct bur-den on the First Amendment to prevent thenews media from having the traditionalaccess that it seems to have had to thesenames.”

Two of the state’s highest-ranking judg-es, Supreme Judicial Court Chief JusticeLeigh Saufley and Superior Court ChiefJustice Thomas Humphrey, publicly sup-ported the bill, which apparently was bornout of generalized concern for juror privacy.

In the high-profile trial of two formerTyco International executives, the NewYork Post and The Wall Street Journal

published the name of juror Ruth Jordan,right, during deliberations after she

allegedly made an “OK” hand gesture todefense attorneys in open court. The

newspapers argued that Jordan, whohad been holding out for acquittal during

deliberations, thus made herself part ofthe story. The judge later declared a

mistrial after Jordan said she received ananonymous phone call and an insulting

letter at her home. Worries of similarordeals prompted at least one other

judge to restrict access to jurors’ names.AP PHOTO

THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS SUMMER 2005PAGE 6

Under the old law, juror names wereavailable upon request after a trial was overunless a court found the information shouldbe kept confidential “in the interest of jus-tice.” The language mirrors the federal lawgoverning jury selection plans in federaldistrict courts; Title 28, Section 1863 (b)(7)of the U.S. Code permits judges to keepjuror names confidential “in any case wherethe interests of justice so require.” Now,however, a state court in Maine may re-lease the names of jurors only if it findsthat disclosure “is in the interests of jus-tice.”

In deciding whether to disclose thenames, Maine judges can consider the ju-rors’ interests in safety and privacy, thedesire to encourage “candid responses fromprospective jurors,” and the interest of thepress and public in making sure “trials areconducted ethically and without bias,” ac-cording to the new law.

“Frankly, I think it’s a terrible standardbecause it basically leaves it entirely up tothe courts to decide what’s going to hap-pen, and it pretty much makes it impossi-ble, I would think, for us to pursue any kindof watchdog efforts on whether or not a jury

was fair or representative of the communi-ty,” said SPJ President Gratz.

He said a court likely would have to findthat a trial had been compromised “beforethey’ll even have a rationale to release usthe information that would enable us topublicize that fact.”

Gratz was unaware of any particularincident that prompted the legislature toreverse the presumption of openness. In-deed, the Portland Press Herald reportedthat the proposed limitations were “pre-emptive and not a response to specificproblems.”

“It sort of looked to me like a bill insearch of a purpose,” said Maine Associa-tion of Broadcasters president and CEOSuzanne Goucher, who said she was theonly person to testify against the bill at apublic hearing. She said the law “croppedup sort of as a surprise,” given that there hadbeen no publicized cases of jury tamperingor threats to jurors.

Mal Leary, the president of the MaineFreedom of Information Coalition, howev-er, said Chief Justice Saufley requested thebill because a juror had received a threat,although he could not recall the specific

case. The Bangor Daily News reported thatSaufley said harassment of jurors was notan issue in Maine.Mal Leary, the presi-dent of the Maine Freedom of Informa-tion Coalition,

Saufley declined to comment on the lawafter it was passed, but referred a reporterto Humphrey, the chief of Maine’s trialcourts. Humphrey could not be reached.

The Senate bill to amend section 1254-B was introduced in January, one monthafter an American Bar Association panelrecommended that state courts keep jurors’home and business addresses and telephonenumbers secret, even after a trial is over,unless there is “good cause” to requiredisclosure. The ABA House of Delegates,the association’s policy-making board, ap-proved the recommendation in February.

“We’re trying to balance the litigants’right to select a fair and impartial jury andthe press’s right to report on what’s hap-pening in the courthouses, versus jurors’right to some degrees of privacy,” Ameri-can Jury Project chairwoman Patricia LeeRefo told The Associated Press.

But the Maine law goes even furtherthan the ABA’s recommendation. Not onlyare jurors’ identities kept hidden from thepublic, but so are the contents of juror-qualification questionnaires, which reflecta potential juror’s fitness to serve on a jury.Under the previous law, the forms — likethe jurors’ names — were available to thepublic upon request after the jury was dis-charged.

While the new law provides for the pos-sible release of juror names under certaincircumstances after jury service is over, itmakes no such provision for the previouslyavailable juror-qualification forms.

The Maine Press Association took noposition on the bill, according to its attor-ney, Michael Mahoney, but the Press Heralddecried the proposed restrictions in a Jan.25 editorial.

“It’s not as though every potential ju-ror’s data will be automatically revealed.Very few trials reach the level of publicscrutiny where anyone would ask for it,” theeditorial stated.

Access to jury information can providethe press and the public with a truer pictureof the trial process, the Press Herald pointedout. “While no one should interfere withthat process as it operates, once all theverdicts are in, openness is far superior tosecrecy,” it wrote.

Goucher noted that knowledge of jurycomposition has been used to uncover in-formation such as racial bias in a jury trial.“The only way you get at that informationis to know who sat on that jury - and so it’sthe only way truly to know that in the end,justice has been served,” she said.

The PhiladelphiaInquirer reported on

questions concerningwhether the jury

forewoman in the firstmurder-for-hire trial of

Rabbi Fred J. Neulander,right, actually lived in

the New Jersey countywhere the trial tookplace, as state law

required. Although thearticle appeared after a

mistrial over a hungjury, the judge had

refused to lift an orderbarring contact withjurors. Four Inquirer

journalists were held incivil contempt.

AP PHOTO

SUMMER 2005 SECRET JUSTICE: SECRET JURIES PAGE 7

Even the bill’s sponsor, Republican Sen.Peter Mills, reportedly opposed keepingjuror names secret after their jury servicehas ended. But Saufley strongly favored thelaw, according to Leary, who called thechief justice “a very persuasive woman.”

Gratz said he did not find the attitude ofthe courts surprising in light of what seemsto be a general societal trend toward pro-tecting personal information. “They havereally elevated the notion of personal priva-cy, to levels frankly I think are unproduc-tive,” he said.

It is unknown how a legal challenge tothe new law would fare, although federalcase law provides some persuasive au-thority.

In the 1990 Boston Globe decision, theU.S. District Court of Appeals in Boston(1st Cir.), which includes Maine, reversed ajudge’s refusal to give the newspaper thenames of jurors who sat on a high-profilecriminal trial. There the court interpretedthe interests-of-justice standard in Section1863 (b)(7), the federal jury-plan law. Ajudge must find exceptional circumstances,such as a “credible” risk of jury tamperingor a threat to a juror’s personal safety,before withholding the names of jurors “inthe interests of justice,” the court said. (In reGlobe Newspaper Co.)

“While we understand, and can sympa-thize with a juror’s desire in a publicizedcriminal case such as this was to remainanonymous, the juror’s individual desirefor privacy is not sufficient justification byitself to withhold his or her identity. Nor isthe judge’s general belief that, as a matter ofpolicy, it would be better to keep the namesand addresses private,” Judge Levin H.Campbell wrote for the majority.

Whether the same analysis would applyto a law that presumes secrecy unless the“interests of justice” require disclosure,however, is unclear. What is certain is thatthe statute will have an impact on the pub-lic’s right to know.

“Clearly if I can’t get the names of ju-rors, I can never tell anybody whether ornot jury selection is being done properly.Essentially I’m then left to completely trustthe courts,” Gratz said. “The courts here[in Maine] are generally trustworthy, butthat’s not the way the system is supposed towork.”

Restrictions on interviewsObtaining the names of jurors may be

only half the battle; persuading jurors to beinterviewed if they have been advised by thecourt not to talk may be just as difficult.

Because the media has a First Amend-ment right to interview jurors after a ver-dict is issued, courts may not prohibit thepress from talking to jurors post-trial with-

out a compelling reason. Judges, however,may order jurors not to discuss what hap-pened during deliberations, or remind themthat what takes place in the jury room isconfidential.

U.S. District Court Judge Garrett E.Brown Jr. reportedly told jurors who con-victed former New Jersey public officialHarry Parkin of corruption in March it was“the better and more prudent practice” notto give interviews to the press. He thenrefused to let anyone, including report-ers, to leave the courtroom for 10 minuteswhile court staff escorted the jurors out ofthe building, The Times of Trenton re-ported.

When Times reporters later tried to ap-proach them in the parking lot or call themat home, all but one juror refused to beinterviewed. Reached by telephone, jurorMary Lee Devitis said she followed thejudge’s instructions and based her decisionon the evidence, the Times reported. Shewould not discuss the deliberations, ac-cording to the newspaper.

Vermont jurors, who sentenced DonaldFell last month to be executed for the kid-naping and beating death of a 53-year-oldwoman, were similarly reticent when askedto comment, according to The Times Argusof Barre, Vt. Judge Sessions told jury mem-bers “that jury deliberations are ‘confiden-tial’ and that the case they had just decidedwas ‘not O.J. Simpson,’” the paper report-ed. The Burlington Free Press managed tointerview one juror, David Noyes, who saidthe “brutality” and “senselessness” ofFell’s crime and the effect it had on thevictim’s family “far outweighed . . . miti-gating factors.”

Courts may also restrict when the inter-views can take place.

In 2002, the New Jersey Supreme Courtupheld a ban on juror interviews in RabbiFred Neulander’s first murder trial evenafter the judge declared a mistrial. Themajority opinion by Justice Gary Stein rea-soned that information revealed by the ju-rors could give prosecutors an unfairadvantage in the retrial of the capital mur-der case — a possibility deemed “extremelyunlikely” by the two dissenting justices.The U.S. Supreme Court in 2003 declinedto review the decision.

Two years earlier, a federal appeals courtin New Orleans upheld U.S. District JudgeEdith Brown Clement’s refusal to disclosethe names and addresses of jurors who saton former Louisiana Gov. Edwin Edwards’September 2000 trial on witness-tamper-ing charges (of which he was acquitted). Italso upheld the judge’s order to jurors notto discuss their deliberations with the me-dia without her permission. (U.S. v. Brown)The case is one of several in the Fifth

Circuit, which covers Louisiana, Mississip-pi and Texas, affirming limits on mediaaccess to jury information.

“It’s really a shame that historians arenot going to be able to go back and talk topeople — if they are willing to talk — abouthow they reached their verdict in the case,”said The (Baton Rouge, La.) Advocate Exec-utive Editor Linda Lightfoot, referring tothe anonymous jury empaneled by U.S.District Judge Frank J. Polozola in a sepa-rate Edwards trial involving gambling-li-cense schemes.

Other courts, however, have invalidatedrestrictions on contacting jurors. In 1994, aPhiladelphia federal appeals court struckdown parts of the trial judge’s order in U.S.v. Antar prohibiting the press from repeat-edly trying to interview a juror or continu-ing to ask questions after a juror has endedan interview.

“[R]estrictions on post-trial interviewsmust reflect an impending threat of juryharassment rather than a generalized mis-giving about the wisdom of such inter-views,” the court concluded.

Some would argue that jury duty is bur-den enough, and that those who serve shouldnot have to be subjected to the additionalpressures of public scrutiny. Schulz saidmost people can sympathize with the phys-ical, emotional and financial hardships thatjurors may face. “But jury duty is a publicduty,” he said.

“Our court system operates on a sys-tem of open justice, and understandingwho the decision makers are and beingable to talk to them about decisions thatmay seem problematic on their face isimportant,”said Schulz. “So I think westart to skew the very process when westart imposing secrecy.

“The privacy interests are relevant, butthey shouldn’t be the controlling factors.They need to be considered in the contextof how the system works.”

Cases cited:

In re Globe Newspaper Co., 920 F.2d 88 (1stCir. 1990)

U.S. v. Antar, 38 F.3d 1348 (3d Cir. 1994)State v. Neulander, 801 A.2d 255 (N.J. 2002)Press Enterprise Co. v. Superior Court of

California, 464 U.S. 501 (1984) (“PressEnterprise I”).

State ex rel. Beacon Journal Pub. Co. v. Bond,781 N.E.2d 180 (Ohio 2002)

In re Disclosure of Juror Names and Addresses,592 N.W.2d 798 (Mich. Ct. App. 1999)

U.S. v. Watson, 1:03-cr-00146 (D.D.C 2003)Ohio v. Hill, 749 N.E.2d 274 (Ohio 2001)ABC v. Stewart, 360 F.3d 90 (2d Cir. 2004)U.S. v. Quattrone, 402 F.3d 304 (2d Cir. 2005)Sheppard v. Maxwell, 384 U.S. 333 (1966)U.S. v. Brown, 250 F.3d 907 (5th Cir. 2001)

In the days immediately following the terror-ist attacks of Sept. 11, 2001, the U.S. govern-

ment embarked on an unprecedented path of se-crecy. The atmosphere of terror induced publicofficials to abandon this country’s culture ofopenness and opt for secrecy as a way of ensur-ing safety and security.

In the four years since Sept. 11, an astonish-ing amount of information has been taken awayfrom the American people.

And yet, no one has demonstrated that an ig-norant society is a safe society. Citizens are bet-ter able to protect themselves and take actionwhen they know the dangers they face.

Each year, the Reporters Committee haschronicled and analyzed the actions taken by theBush administration to restrict information fromreaching the public.

The result is Homefront Confidential.

Sixth Edition available Sept. 11, 2005.

Don’t Accept Ignorance

Order your copy ofHomefront Confidential

by calling theReporters Committee

at 800-336-4243.Or read it on the Web at:

www.rcfp.org/homefrontconfidential

Prepared by

The Reporters Committee

for Freedom of the Press

SEPTEMBER 2005

HomefrontConfidential

How the War on Terrorism

Affects Access to Information

and the Public’s Right to Know

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