Identifying the jury

Journalists sometimes must fight for the right to learn jurors' names
Feature
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60
Kevin Delaney

AP Photo

Nathaniel Fujita, center, stands with his attorneys as he is sentenced in 2013.

In the midst of the high-profile criminal trial of Nathaniel Fujita, a man eventually found guilty of first degree murder in the death of his former high school girlfriend, The Boston Globe made a motion for post-verdict access to the jury list from the case. The Globe’s purpose in seeking the list, which would identify the names and addresses of the jurors who served in the case, was simple: to gauge whether the jurors would be willing to discuss the trial after entry of the verdict.

After being granted the names and addresses of only two of the jurors, The Globe’s motion made its way to the Supreme Judicial Court of Massachusetts. In a decision issued earlier this year, the Massachusetts high court sided with The Globe — ruling that the public has the right to learn the names of jurors who have been empanelled and rendered a verdict in criminal cases. The court specified, “Only on a judicial finding of good cause, which may include a risk of harm to the jurors or to the integrity of their service, may such a list be withheld.”

The Globe’s quest for the jury list from Commonwealth v. Fujita raises important questions about journalists' right of access to juror names, and when that right can be outweighed by competing concerns like privacy and safety.

The public right of access to juror names

According to Ken Paulson, the dean of the College of Media and Entertainment at Middle Tennessee State University and the former editor-in-chief of USA Today, there are benefits to allowing access to juror names.

Paulson wrote in an email: “It's imperative that we know the identity of jury members. If convicted, a citizen loses his or her freedom, potentially for years. That process should never go unscrutinized, meaning that courtrooms should be open and the identities of jurors should be ascertainable.”

The benefits of disclosing juror names were seen during the 2006 corruption trial of former Illinois Governor George Ryan. There, the Chicago Tribune revealed that two jurors had concealed arrest records during the jury selection process. The revelations led U.S. District Court Judge Rebecca Pallmeyer to dismiss both jurors eight days into deliberations. Because a verdict had not yet been reached, however, Judge Pallmeyer was capable of replacing the jurors with alternates and narrowly avoided having to declare a mistrial.

Despite the benefits, courts often struggle with the issue of whether to disclose juror names. According to Gayle C. Sproul, a partner at the law firm Levine Sullivan Koch and Schulz, “judges are very protective of jurors” and their personal privacy. Additionally, citing the potential of jury tampering, courts often worry that disclosing juror names during proceedings will interfere with the accused’s Sixth Amendment right to a fair trial.

Nevertheless, although the Supreme Court has never directly addressed the issue, it is generally believed that journalists and the public possess the right of access to juror names. Courts have found this right by invoking federal and state statutes, local court rules, the common law, and the First Amendment.

For courts finding a common law right of access to juror names, the Supreme Court’s 1978 decision in Nixon v. Warner Communications, Inc., offers relevant precedent. In Nixon, the Supreme Court concluded there was a general, common law right “to inspect and copy public records and documents, including judicial records and documents.”

Relying on precedent from Nixon, the U.S. Court of Appeals for the Fourth Circuit (covering Maryland south to South Carolina) in In re Baltimore Sun Co., a case decided in 1988, found a common law right of access to juror names after the jury has been seated. The court observed: “We recognize the difficulties which may exist in highly publicized trials . . . and the pressures upon jurors. But we think the risk of loss of confidence of the public in the judicial process is too great to permit a criminal defendant to be tried by a jury whose members may maintain anonymity.”

Applying the same standard, however, the Supreme Court of Pennsylvania in 2007 in Commonwealth v. Long ruled there was no common law right of access to the names of empaneled jurors. In reaching its decision, the court concluded that such lists were not public judicial records and thus the presumption of access under Nixon did not apply.

In the First Amendment context, courts routinely apply what’s called the “experience and logic” test to find a qualified First Amendment right of access to juror names. Under this two-part test, courts ask (1) whether “the place and process have historically been open to the press and general public,” and, if so, (2) “whether public access plays a significant positive role in the functioning of the particular process in question.”

On the first prong, courts usually reference the fact that jurors have historically been known in their communities. For example, in the 2002 case of State ex rel. Beacon Journal Publ’g Co. v. Bond, the Supreme Court of Ohio described how during “the treason trial of Aaron Burr . . . Chief Justice John Marshall printed the names of the jurors in the court’s reported decision.” Similarly, in Commonwealth v. Fujita, the Supreme Judicial Court of Massachusetts discussed how “the identities of the jurors who acquitted” the British soldiers charged with the Boston Massacre “were known to the community.”

On the second prong, courts routinely cite the benefits of knowing juror names. As the U.S. Court of Appeals for the First Circuit (covering much of New England) explained in the 1990 case of In re Globe Newspaper Co., “Knowledge of juror identities allows the public to verify the impartiality of key participants in the administration of justice, and thereby ensures fairness, the appearance of fairness and public confidence in that system.”

This view, however, is not universal. In rejecting the First Amendment right of access to juror names, the Supreme Court of Delaware in 1989 wrote in Gannett Co. v. State, “Announcement of jurors’ names in court promotes neither the fairness nor the perception of fairness, when the parties are provided with the jurors’ names and all proceedings are open to the public.”

And although most courts find a right of access to juror names, Sproul cautions that the right is never absolute. “These [the common law and First Amendment rights] are qualified rights,” Sproul said. “So the government, the prosecutor, or whoever it may be will have the ability to . . . make some sort of showing of a definite harm that will befall jurors if their identities are known.”

In the past, courts have cited concerns of jury safety and jury tampering as reasons for delaying, or prohibiting altogether, the release of juror names.

Mark J. Prak, a partner in the law firm Brooks Pierce echoed Sproul’s sentiment. “I think the result in any case will depend upon the facts that are actually presented in support of the notion that the juror’s names and addresses should be kept secret,” Prak said. “As a general matter, these things are open and not secret.”

Prak acknowledged, however, that there may be cases in which courts have a reason not to disclose juror names, a scenario that concerns him. “Cases in which there is a bona fide systemic reason for an argument to be made that what’s traditionally been public should now be somehow kept secret are the things that start us down the path of acquiring bad habits,” Prak said.

Another issue that arises is exactly when the right to access juror names applies. The answer, quite frequently, differs by court. For example, citing the need to root out corruption and bias in a jury, the U.S. Court of Appeals for the Third Circuit (covering Pennsylvania, New Jersey and Delaware) wrote in a 2008 case that the right attaches no later than the swearing and empanelment of the jury. In contrast, in 1987 the United States District Court for the District of Massachusetts, referencing jurors’ concerns for privacy, found the right attaches seven days after the verdict has been rendered.

Publishing juror names

Of course, many jurors are willing to speak with the media after the entry of a verdict.

“An amazing number of jurors are willing to talk after a decision,” Al Tompkins, a senior faculty member at The Poynter Institute, said. “They want the world to understand why they made the decision they did.”

When jurors are not willing to talk, however, some question whether it is appropriate for journalists to name jurors.

Because jurors do not volunteer for their roles, many journalists question whether they should be thrust into the limelight. According to Tompkins, both before and after a verdict is rendered, most newsrooms air on the side of caution when making these decisions.

“Generally, there is a policy against publishing juror names,” Tompkins said. “Among journalists, there genuinely is the feeling that there is no good, compelling reason to identify these people.”

An example of when a newspaper broke with tradition occurred in 2007, when the Connecticut Post included on its front page a graphic that listed the names (and, in some cases, the hometown and place of business) of jurors seated in a sentencing trial. The Connecticut Post’s decision received attention from numerous media outlets, including a story written by Tompkins for Poynter.

MariAn Gail Brown, who wrote the story accompanying the graphic, defended the Connecticut Post’s decision. In an interview with Poynter Online she said: “A trial is a public event . . . . I believe our story upholds our obligation to inform our readers. It’s more than a little disturbing the Constitutional rights some people are so willing to toss out in the name of misguided fear.”

For his part, Tompkins doesn’t foreclose the possibility of publishing a juror’s name. “There should be room for exceptional cases . . . where you would identify a juror without their permission given extraordinary circumstances,” Tompkins said. Such a scenario, according to Tompkins, could exist where a journalist learns that a juror has been bribed, possesses some sort of conflict of interest, or lied during the voir dire process.

Tompkins’s views on the subject are shared by attorney Mark J. Prak. Speaking on whether members of the news media should publish juror names, Prak said, “Just because one has the right to do something, doesn’t mean that one should.” He added, “When journalists do things gratuitously it can have its implications on the continuation of the freedom.”