IN THE SUPREME COURT OF OHIO
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THE STATE OF OHIO, Appellant, v. CLIFTON HILL, Appellee.
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Case No. 00-591 On Appeal from the Fairfield County Court of Appeals, Fifth Appellate District Court of Appeals Case No. 98-CA-67
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MERIT BRIEF OF AMICI CURIAE,
REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS,
AMERICAN SOCIETY OF NEWSPAPER EDITORS,
AND THE SOCIETY OF PROFESSIONAL JOURNALISTS,
IN SUPPORT OF APPELLEE, CLIFTON HILL
Attorneys for Amicus Curiae,
Reporters Committee for Freedom of the Press:
Lucy Dalglish, Esq.
(Counsel of Record)
Gregg Leslie, Esq.
Ashley Gauthier, Esq.
Reporters Committee for Freedom of the Press
1815 N. Fort Myer Dr., Suite 900
Arlington, VA 22209
(703) 807-2100
Fax (703) 807-2109
Of counsel for amici:
Attorneys for Society of Professional Journalists
Bruce W. Sanford, Esq.
Robert D. Lystad, Esq.
Bruce D. Brown, Esq.
Baker & Hostetler LLP
1050 Connecticut Avenue NW, Suite 1100
Washington, DC 20036
(202) 861-1500
Attorneys for the American Society of Newspaper Editors
Richard Schmidt, Esq.
Kevin M. Goldberg, Esq.
Cohn & Marks
1920 N Street NW, Suite 300
Washington, D.C. 20036
Telephone: (202) 293-3860
Attorneys for Appellant, State of Ohio:
David L. Landefeld
Fairfield County Prosecuting Attorney
Gregg Marx (Counsel of Record)
Fairfield County Assistant Prosecuting Attorney
323 E. Main Street
Lancaster, OH 43130
(740) 653-4259
Fax (740) 653-4708
Attorneys for Appellant's Amicus Curiae,
Ohio Prosecuting Attorney's Association:
Dan Gattermeyer
Butler County Prosecuting Attorney
Daniel Eichel (Counsel of Record)
First Assistant Prosecuting Attorney and Chief, Appellate Division
Government Services Center
315 High Street, 11th Floor
Hamilton, OH 45012-0515
(513) 887-3474
Fax (513) 887-3489
Attorneys for Appellee, Clifton Hill:
James E. Phillips
Timothy Hoover
Vorys, Sater, Seymour & Pease, LLP
52 E. Gay Street
P.O. Box 1008
Columbus, OH 43216-1008
(614) 464-6400
Fax (614) 464-6350
Carol Wright
61 E. Lincoln Street
Columbus, OH 43215
(614) 224-2999
TABLE OF CONTENTS
TABLE OF AUTHORITIES
INTEREST OF THE AMICI CURIAE
STATEMENT OF FACTS
ARGUMENT
2. The presumption of openness applies to jury selection
B. Following U.S. Supreme Court precedent, state and federal courts have consistently held that anonymous juries are unconstitutional except in the most extreme circumstances.
C. Even if the prosecution sought an anonymous jury, the judge would have had to hold a hearing and rule whether an anonymous jury was appropriate.
D. Anonymous juries preclude public oversight of the judicial process.
CONCLUSION
PROOF OF SERVICE
APPENDIX
Commonwealth v. DuPont, 1998 Mass. Super. LEXIS 476 (1998)
TABLE OF AUTHORITIES
Cases
Capone v. U.S., 56 F.2d 927 (7th Cir. 1932) ................................................................................15
Commonwealth v. Angiulo, 615 N.E.2d 155 (Mass. 1993) .........................................6, 8, 9, 13, 14
Commonwealth v. DuPont, 1998 Mass. Super. LEXIS 476 (1998) ..........................6, 9, 10, 11, 14
Globe Newspapers Co. v. Superior Court, 457 U.S. 596 (1982) ................................................3, 4
In re Baltimore Sun Co., 841 F.2d 74 (4th Cir. 1988) ....................................................................8
In re Globe Newspaper, 920 F.2d 88 (1st Cir. 1990) ...................................................................16
In re Oliver, 333 U.S. 257 (1984) ...................................................................................................4
People v. Luciano, 14 N.E.2d 433 (N.Y. 1938) ............................................................................15
Press-Enterprise v. Superior Court ("Press-Enterprise I"), 464 U.S. 501 (1984) .................2, 4, 5
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) ...................................................3, 4
State v. Accetturo, 619 A.2d 272 (N.J. Super. 1992) ..............................................................11, 12
State v. Clifford, 733 N.E.2d 621 (Ohio App. 1999) ....................................................................15
State ex rel. Beacon Journal Pub. Co. v. Kainrad, 348 N.E.2d 695 (Ohio 1976) ........................15
State ex rel. Nat'l Broadcasting Co. v. Court of Common Pleas, 556 N.E.2d 1120, 52 Ohio St. 3d 104 (1990) ...................................................................12, 14, 15
U.S. v. Barnes, 604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907 (1980) ...........................6
U.S. v. Crockett, 979 F.2d 1204 (7th Cir. 1992) .............................................................................7
U.S. v. Doherty, 675 F.Supp. 719 (D. Mass. 1987) ......................................................................16
U.S. v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995) .........................................................................6, 7
U.S. v. Krout, 66 F.3d 1420 (5th Cir. 1995) .............................................................................7, 14
U.S. v. Paccione, 949 F.2d 1183 (2d Cir. 1991) .........................................................................6, 7
U.S. v. Ross, 33 F.3d 1507 (11th Cir. 1994) .........................................................................6, 7, 11
U.S. v. Sanchez, 74 F.3d 562 (5th Cir. 1996) ..........................................................................6, 7, 8
U.S. v. Scarfo, 850 F.2d 1015 (3d Cir. 1988) .................................................................................7
U.S. v. Talley, 164 F.3d 989 (6th Cir. 1999) ...............................................................................6, 7
Valentine v. State, 396 So.2d 15 (Miss. 1981) ..............................................................................14
Other Authorities
Abramovsky & Edelstein, Anonymous Juries: In Exigent Circumstances Only,
13 St. John's J.L. Comm. 457, 466-67 (1999) ..............................................................................15
INTEREST OF THE AMICI CURIAE
The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors that works to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970.
The American Society of Newspaper Editors is a professional organization of more than 900 persons who hold positions as directing editors of daily newspapers in the United States and Canada.
The Society of Professional Journalists is dedicated to improving and protecting journalism. It is the nation's largest and most broad-based journalism organization, dedicated to encouraging the free practice of journalism and stimulating high standards of ethical behavior. Founded in 1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to a well-informed citizenry; works to inspire and educate the next generation of journalists; and protects First Amendment guarantees of freedom of speech and press.
Amici's interest here is in preserving public access to court proceedings, specifically, in preserving access to jury selection. The public has an interest in ensuring that trials are open, fair and consistent with First and Sixth Amendment principles. Since the press frequently covers legal proceedings as a representative of the public, the press shares an interest in ensuring access to court proceedings. Thus, amici submit this brief to support the defendant's argument that it is unconstitutional to empanel an anonymous jury in all cases, without a finding by the trial court that there is a significant and constitutionally valid need for an anonymous jury.
Although this Court may consider other issues on appeal raised by the parties, this brief addresses only the issue of anonymous juries.
STATEMENT OF FACTS
This case involves the criminal prosecution of Clifton Hill. The facts relevant to the anonymous jury issue are as follows:
Hill was indicted on four counts: Aggravated Murder, Grand Theft of a Motor Vehicle, Fleeing, and Having a Weapon Under Disability. Hill was tried in Fairfield County. The judges of the Fairfield County Court of Common Pleas use anonymous juries in all trials. The names, addresses and phone numbers of jurors are kept secret from defendants, lawyers, and the judges. The judge did not make a finding that an anonymous jury was necessary; an anonymous jury was used automatically. The Order that amended the Fairfield County local rules to provide for an anonymous jury in all cases is attached hereto in the Appendix at page A1.
ARGUMENT
With no apparent fact-finding or empirical evidence, Fairfield County has instituted a practice of selecting anonymous juries in all civil and criminal cases. This practice is directly contrary to controlling U.S. Supreme Court authority, which has squarely held that jury selection is open to the public absent specific findings articulating a compelling interest requiring closure, and which further requires that any closure order be narrowly tailored to meet that articulated interest. Press-Enterprise v. Superior Court ("Press-Enterprise I"), 464 U.S. 501 (1984).
In this case, there are no findings demonstrating any interest, let alone a compelling one, that would justify selection of an anonymous jury in all cases. For the following reasons, amici urge the Court to find that the trial court's failure to make specific findings regarding the need for an anonymous jury was a structural error that requires a new trial for Clifford Hill.
A. The First Amendment creates a strong presumption of access to criminal trials, including jury selection.
Open judicial proceedings are an essential element of our legal system and our American way of life. As a matter of constitutional, statutory and common law, courts have consistently held that judicial proceedings must be in public. Moreover, the U.S. Supreme Court has unequivocally held that this same presumption of openness applies to the jury selection process. Fairfield County's practice of selecting secret juries in all cases is contrary to these well-established principles.
1. Criminal proceedings are presumptively open
In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the U.S. Supreme Court established beyond a doubt that the public and the press have a First Amendment right to open criminal trials. In Richmond Newspapers, at the defendant's request, a Virginia trial court ordered that a murder trial be closed to the public and the press. In reversing that decision, the Supreme Court emphasized the unvarying history of open judicial proceedings in this country:
. . . the historical evidence demonstrates conclusively that at the time when our organic law were adopted, criminal trials both here and in England had long been presumptively open. This is no quirk of history; rather it has long been recognized as an indispensable attribute of an Anglo-American trial. Both Hale in the 17th century and Blackstone in the 18th saw the importance of openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality.
448 U.S. at 569. The Supreme Court continued:
From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice.
Id. at 573 (emphasis added).
The Supreme Court later noted in Globe Newspapers Co. v. Superior Court, 457 U.S. 596 (1982), that there are numerous public policy reasons supporting open judicial proceedings. "[Access allows] the public to participate in and serve as a check upon the judicial process -- an essential component of our structure of self government." 457 U.S. at 606. The Court also noted that "[p]ublic scrutiny of a criminal trial enhances the quality and safeguard the integrity of the fact-finding process, with benefits to both the defendant and society as a whole." Id.
Public scrutiny also promotes fairness by operating as a restraint on possible abuses of judicial power, as well as providing a safeguard against "any attempt to employ our courts as instruments of persecution." In re Oliver, 333 U.S. 257, 270 (1984).
Public confidence in judicial proceedings is also enhanced by openness. In Press-Enterprise I, supra, the U.S. Supreme Court considered whether the public had a right to attend jury voir dire in a high profile rape/murder trial in California. In holding that the proceedings should be open, the Court explained another benefit from public proceedings:
The value of openness lies in the fact that people not actually attending trials can have confidence that the standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system.
464 U.S. at 509 (original emphasis).
Finally, open proceedings have a "community therapeutic value." Richmond Newspapers, supra, 448 U.S. at 571. Open proceedings provide an outlet for the public's concern and emotions that result from criminal acts. Openness also vindicates the concerns of the victims of crime, the community and defendants in knowing that the criminal system operates fairly and justly. Press-Enterprise I, supra, 464 U.S. at 509.
There is no doubt that the public's presumptive right of access to judicial proceedings is the hallmark of our judicial system and our democratic society.
2. The presumption of openness applies to jury selection
The U.S. Supreme Court has unequivocally held that the presumptive right of public access to judicial proceedings applies with equal force to jury selection. As noted above, in Press-Enterprise I, the Supreme Court was faced with this issue in connection with voir dire and held that "the process of selection of jurors has presumptively been a public process." The Press-Enterprise I Court noted the strong historical roots underlying this presumption of openness for jury selection, which dates back to the 16th century. 464 U.S. at 508.
The overwhelming interests of the public in open jury selection was also recognized by the Supreme Court: such "public proceedings vindicate the concerns of the victim and community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected." Id. at 508 (emphasis supplied). The Court continued: "This open process gave assurance to those not attending trials that others were able to observe the proceedings and enhanced public confidence." Id. Thus, the Supreme Court concluded that while "[n]o right ranks higher than the right of an accused to a fair trial," the "primacy of the accused's right is difficult to separate from the right of everyone in the community to attend the voir dire which promotes fairness." Id.
As the cases that follow demonstrate, this important presumption of access to jury selection proceedings has been repeatedly recognized nationwide. As set forth below, under the U.S. Supreme Court's controlling case, Press-Enterprise I, this presumption cannot be overcome absent a strong showing of a compelled interest in closure, which was not even attempted in the instant case. For these reasons, the State of Ohio's appeal of the reversal of Clifton Hill's conviction by the Court of Appeals should be denied.
B. Following U.S. Supreme Court precedent, state and federal courts have consistently held that anonymous juries are unconstitutional except in the most extreme circumstances.
Anonymous juries are an aberration in our judicial system and a relatively new phenomenon. The first fully anonymous jury ever empaneled was in the 1977 trial of drug kingpin Leroy Barnes in New York City. United States v. Barnes, 604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907 (1980). The court believed that Barnes was unusually dangerous and that the extraordinary measure of hiding juror identities was necessary under such circumstances. Thereafter, anonymous juries were used sparsely, primarily in criminal cases where the defendant was notoriously dangerous and where the court reasonably believed that a fair trial could not be held unless juror identities were protected. In many cases, the defendant had previously tried to bribe, intimidate, or harm jurors, actions that justified juror anonymity.
But even when courts permit anonymous juries, their use is limited. Courts generally recognize that anonymous juries raise severe constitutional concerns, and therefore, their use should be limited to the most extreme circumstances. U.S. v. Sanchez, 74 F.3d 562 (5th Cir. 1996); Commonwealth v. Angiulo, 615 N.E.2d 155 (Mass. 1993); Commonwealth v. DuPont, 1998 Mass. Super. LEXIS 476 (1998).
The federal circuit courts have held that an anonymous jury should not be empaneled unless there is a strong reason to believe the jury needs protection and the court takes reasonable precautions to preserve the fundamental rights of the defendant. U.S. v. Talley, 164 F.3d 989 (6th Cir. 1999); U.S. v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995); U.S. v. Ross, 33 F.3d 1507 (11th Cir. 1994); U.S. v. Paccione, 949 F.2d 1183 (2d Cir. 1991). A court may permit an anonymous jury in cases:
(1) with very dangerous persons who were participants in large scale organized crime, and who participated in mob-style killings and had previously attempted to interfere with the judicial process; (2) where defendants have had a history of attempted jury tampering and serious criminal records; or (3) where there have been allegations of dangerous and unscrupulous conduct by the defendant, coupled with extensive pre-trial publicity.
Talley, 164 F.3d at 1001 (citing Paccione, 949 F.2d at 1192).
It is clear that courts have not allowed anonymous juries to be used in all cases. In U.S. v. Sanchez, 74 F.3d 562 (5th Cir. 1996), the court reversed a conviction and remanded the case for a new trial because the trial court improperly empaneled an anonymous jury without finding that any of the requisite factors were actually present in the case. The Sanchez court noted that the circuit had already addressed the constitutionality of empaneling anonymous juries in criminal trials and found that anonymous juries could be properly used only in limited circumstances.
[I]n United States v. Krout . . . we recognized that "the decision to empanel an anonymous jury . . . is a drastic measure, which should be undertaken only in limited and carefully delineated circumstances." Accordingly, this court approved the use of anonymous juries only "when needed to ensure against a serious threat to juror safety, if the courts also protect the defendants' interest in conducting effective voir dire and maintaining the presumption of innocence." . . . Krout's narrowly conscribed approval of anonymous juries concurs with the reasoning of other federal circuits that have addressed this issue.
Sanchez, 74 F.3d at 564 (citing U.S. v. Paccione, 949 F.2d 1183 (2d Cir. 1992); U.S. v. Scarfo, 850 F.2d 1015 (3d Cir. 1988); U.S. v. Crockett, 979 F.2d 1204 (7th Cir. 1992); U.S. v. Ross, 33 F.3d 1507 (11th Cir. 1994); U.S. v. Edmond, 52 F.3d 1080 (D.C. Cir. 1995)).
The court decided that the Sanchez case was an ordinary criminal trial and did not warrant the use of an anonymous jury.
[T]he court's decision [to use an anonymous jury] cannot be upheld. Virtually none of the factors . . . justifying an anonymous jury exists in the present case. No one could demonstrate or even allege that Sanchez was either involved in organized crime or participated in a group that would attempt to harm the jurors. Likewise, . . . there was no evidence that Sanchez had attempted to interfere with the judicial process or witnesses. Finally, there was no indication that the jurors in this case would be subjected to the type of extensive publicity that might bring about intimidation and harassment. . . . We must conclude that Sanchez's right to be tried before a panel of identified jurors was not required to be sacrificed in this case.
Sanchez, 74 F.3d at 565.
The government argued that it was harmless error to try the case before an anonymous jury because the court conducted extensive voir dire. The government contended that the defendant was able to pick an unbiased jury, even if he didn't know the jurors' names and addresses or their spouses' or employers' names. The court, however, disagreed:
The defendant has a right to a jury of known individuals not just because information such as was redacted here yields valuable clues for purposes of jury selection, but also because the verdict is both personalized and personified when rendered by 12 known fellow citizens. Unless the type of circumstances listed in Krout exist, where the defendant has essentially compromised his right, he should receive a verdict, not from anonymous decisionmakers, but from people he can name as responsible for their actions. In closer cases on the merits of requiring anonymity, there might be room for a harmless error analysis, but this is not such a case. The conviction must be reversed and remanded for retrial.
Id.
Similarly, courts have agreed that juror information should be available, not only to the defendant, but also to the public. In re Baltimore Sun Co., 841 F.2d 74 (4th Cir. 1988). Unless there is a real threat of violence or corruption, juror information should not be withheld.
State courts have similarly limited the use of anonymous juries. In Commonwealth v. Angiulo, 615 N.E.2d 155 (Mass. 1993), Gennaro Angiulo was charged with racketeering activities, conspiring to murder and being an accessory before the fact to the murder of Angelo Patrizzi. The court reversed the conviction and ordered a new trial because the trial court erred in empaneling an anonymous jury. Angiulo, 615 N.E.2d at 520.
The court found that the use of an anonymous jury violated a state statute that specifically provides that juror lists must be given to defendants in capital cases. Nevertheless, the court also addressed the constitutional issues raised by the use of anonymous juries.
Although the judge's failure to follow the mandate of § 66 requires the reversal of the defendant's conviction, we nonetheless discuss the defendant's constitutional claims primarily because we deem it appropriate to outline the circumstances in which a trial judge may allow the empanelment of an anonymous jury. The need to give trial judges guidance in the future in regard to crimes not involving life imprisonment warrants this discussion. Thus, we address also the trial judge's failure to handle the anonymous jury issue in accordance with the mandates of Federal constitutional law.
Id. at 526.
The court examined basic principles of constitutional law and found that an anonymous jury is constitutionally valid only when the trial court completes a rigorous examination of the facts and determines, after giving the defendant a full opportunity to be heard, that an anonymous jury is absolutely necessary to protect jurors from harm. Id. at 526-27.
[T]he Federal courts clearly have set forth the substantive rule of constitutional law governing juror anonymity: First, the trial judge must make a finding of necessity (which was not made in the present case). Next, the trial judge must take reasonable precautions to minimize the burden on the presumption of innocence occasioned by jurors' anonymity (which, as the text of this opinion describes, the judge failed to do).
Id. at 527 n.21 (citations omitted).
The court also noted practical problems with the use of anonymous juries. The court realized that trial counsel were unable to determine whether they had previous encounters with some of the jurors because of their anonymity. In particular, there was a question whether counsel had dealt with the son of a prospective juror who worked for the district attorney's office, and with the husband of a prospective juror who worked as a police officer. Such questions warrant the disclosure of jurors names and addresses. Id. at 525.
Another case that required a new trial due to improper use of an anonymous jury was Commonwealth v. DuPont, 1998 Mass. Super. LEXIS 476 (1998).(1) In DuPont, the defendant was charged with numerous violent crimes. At trial, juror surnames and addresses were redacted from the questionnaires provided to the defendant. The Commonwealth did not request redaction of the jurors' surnames and addresses. Rather, the judge acted sua sponte. The judge made no written or oral findings as to a need for anonymity.
The court ordered a new trial, finding that "empanelment of an anonymous jury raises grave constitutional questions." The court found that an anonymous jury would pass constitutional scrutiny only when it is needed to protect against a serious threat to juror safety if the court also protects the defendant's interest in conducting effective voir dire and maintaining the presumption of innocence. Because there was no real threat in DuPont's case, an anonymous jury should not have been used.
There was no basis for the court to have inferred that Dupont was likely to engage in jury tampering, threaten a juror, or otherwise interfere with the judicial process. Further, there was no basis for the court to have believed that the jurors would be exposed to evidence that would depict a pattern of violence by the defendant such as would cause a juror to reasonably entertain a worry about personal safety.
***
In the instant action, no good reason existed for empaneling an anonymous jury. The court was not aware of any threat to juror safety posed by Dupont, and no need to protect jurors from harm or improper influence was alleged by the prosecution. The trial judge could not reasonably have ascertained a threat to jurors from the charges in the indictments.
DuPont, 1998 Mass. Super. LEXIS 476. The court examined the reasons why anonymous juries impair a fair trial. First, empanelment of an anonymous jury may undermine the presumption of innocence. Second, it may impair a defendant's right to a fair and impartial jury by denying information that might be helpful in the exercise of the right to utilize peremptory challenges or to seek that a juror be excused for cause. Third, juror anonymity makes it difficult for a defendant to know the identity of those persons who will be rendering judgment upon him.
The court was extremely concerned with the cavalier use of anonymity.
The empanelment of an anonymous jury is a procedure that creates a risk that jurors will acquire an unfavorable opinion of the defendant. "An anonymous jury raises the specter that the defendant is a dangerous person from whom the jurors must be protected, thereby implicating the defendant's constitutional right to a presumption of innocence."
DuPont, 1998 Mass. Super. LEXIS 476 (quoting U.S. v. Ross, 33 F.3d 1507, 1519 (11th Cir. 1994)). Thus, the court believed that it was entirely improper for the judge to empanel an anonymous jury without sufficient justification, especially where "a substantial government interest in protecting the identity of jurors [was] wholly lacking . . . ."
On the facts of this case, the empanelment of an anonymous jury without any reason for suspecting that withholding the identities of the jurors was essential to protect jurors from harm or improper influence, without any cautionary instructions, and without a thorough voir dire warrants a new trial. . . . Dupont has demonstrated that the constitutional error possibly weakened his case in some way as to require a new trial. It appears that justice may not have been done.
Id.
For similar reasons, a motion for an anonymous jury was denied in State v. Accetturo, 619 A.2d 272 (N.J. Super. 1992). In that case, the defendants were alleged members of the Lucchese organized crime family and were charged with conspiracy, racketeering, extortion and murder. The State moved for an anonymous jury, but the court denied the motion.
The court noted that there was no specific authority in New Jersey for empaneling an anonymous jury. Id. at 272. The State argued that, in the absence of any specific provision authorizing an anonymous jury, the court could order it as a matter of discretion in conducting the trial. Id. at 273. The court, however, rejected that contention. The court found that, even in cases where courts allowed anonymous juries, they limited their use due to constitutional concerns.
The question to be determined is whether, assuming the authority for an anonymous jury, the facts and circumstances in its support exist and if so, whether they outweigh any prejudice and other disadvantages which would arise. In the absence of specific state law on the subject, the State relies upon federal cases in its argument. Accepting these cases as setting forth the appropriate standards, it is concluded that the tests required to be satisfied have not been met and that, therefore, an anonymous jury is not appropriate in this case.
Id. at 274.
The court ultimately rejected the request for an anonymous jury because, "while the defendants in this case cannot be called the paragons of virtue, none of their convictions involve jury tampering or other conduct related to obstruction of justice. Moreover, no evidence has been presented that any of the defendants have engaged in such conduct in the past or that they plan to do so in the present case." Id. at 274-75. Without a sufficient justification for empaneling an anonymous jury, the jurors identities should be available.
It is clear that anonymous juries are to be used sparingly and only in rare cases where there is a clear and unambiguous threat to juror safety or the integrity of the judicial process. It is erroneous to use anonymous juries in every case, without considering the necessity for anonymity in a particular case.
It would be consistent with existing case law for this Court to hold that the Fairfield County policy of using anonymous juries in all cases is unconstitutional. In State ex rel. Nat'l Broadcasting Co. v. Court of Common Pleas, 556 N.E.2d 1120, 52 Ohio St. 3d 104 (1990), this Court stated that "[c]riminal trials have historically been open to the public, and public access has always been considered essential to the fair and orderly administration of our criminal justice system." State ex rel. Nat'l Broacasting Co., 556 N.E.2d at 1124. This Court noted that the defendant's right to a fair and public trial was intertwined with the public interest in open courts:
In State ex rel. The Repository v. Unger, supra, we recognized that a qualified right of access is also embraced by Section 16, Article I of the Ohio Constitution, the "open courts" provision of our Bill of Rights. Public access to criminal trials is also supported by the constitutional right of the accused to a public trial. "The underlying premise of a public trial is that the public is a party to all criminal proceedings. Criminal cases are prosecuted in the name of the people because crimes are public wrongs affecting all members of society."
Id. (citations omitted).
It would be consistent with this Court's prior ruling to find that courts should not use anonymous juries except under extreme circumstances. As this court has acknowledged, the judicial system should be open to the public, as the public "is a party to all criminal proceedings." If jurors' names cannot be kept from the public without constitutional justification, then they should not be kept from the public and the parties without justification.
C. Even if the prosecution sought an anonymous jury, the judge would have had to hold a hearing and rule whether an anonymous jury was appropriate.
The concept of due process is a fundamental principle of law. A court cannot deprive a person of a right without, at least, holding a hearing to determine whether there is a reason to do so. In the context of anonymous juries, a court cannot empanel an anonymous jury without first determining that it is necessary. Otherwise, there is a violation of due process.
The due process issue was discussed extensively in Commonwealth v. Angiulo, 615 N.E.2d 155 (Mass. 1993). In reversing a conviction because an anonymous jury has improperly been used, the court noted that it violated the notion of due process to empanel an anonymous jury without holding a hearing to establish that anonymity was necessary.
The Fourteenth Amendment to the United States Constitution embodies the notion, reaching back to Roman law, that a "shield of innocence surrounds a defendant on trial." . . . This so-called "presumption of innocence" is "a basic component of a fair trial under our system of criminal justice." . . . In Estelle, the Supreme Court of the United States held that a State may not -- consistent with the presumption of innocence -- create trial conditions that affect the jurors' perception of the defendant unless there is a substantial government interest in doing so.
The empanelment of an anonymous jury triggers due process scrutiny because this practice is likely to taint the jurors' opinion of the defendant, thereby burdening the presumption of innocence. . . . The due process clause precludes the empanelment of an anonymous jury at a criminal trial unless anonymity is necessary to protect the jurors from harm or improper influence.. . . Henceforth, we shall require that no anonymous jury is to be empaneled in the courts of the Commonwealth unless the trial judge has first determined on adequate evidence that anonymity is truly necessary and has made written findings on the question. Further, the due process clause requires that reasonable precautions be taken to minimize the effect of the jurors' anonymity on their perception of the defendant. . . .
Angiulo, 615 N.E.2d at 526-27 (citations omitted). See also Commonwealth v. DuPont, 1998 Mass. Super. LEXIS 476 (1998) (due process clause precludes the empanelment of an anonymous jury at a criminal trial unless anonymity is necessary to protect the jurors from harm or improper influence); U.S. v. Krout, 66 F.3d 1420, 1427 (5th Cir. 1995) ("The decision to empanel an anonymous jury . . . is a drastic measure, which should be undertaken only in limited and carefully delineated circumstances").
Similarly, the court in Valentine v. State, 396 So.2d 15 (Miss. 1981), held that jurors' names should be kept secret only in exceptional circumstances, after a full hearing.
Before the trial judge makes a determination not to make a jury list available to litigants or trial attorneys whose clients will have a cause for trial, he should cause the record clearly to demonstrate good and sufficient reason "in the interest of justice" . . . . Before making his determination to keep confidential or secret the names of the jurors drawn from the jury box, the litigants or counsel (in this case the defendant) should have notice that such action is being considered by the trial judge. Then the court should make its decision only after a hearing is accorded the defendant on the issue.
Valentine, 396 So.2d at 17.
This Court has required that a hearing be held before a judge may restrain the press from publishing jurors' names. State ex rel. Nat'l Broadcasting Co. v. Court of Common Pleas, 556 N.E.2d 1120, 52 Ohio St. 3d 104 (1990). This Court asked "whether the First Amendment allows [the trial judge] to impose, without a hearing, a prior restraint upon the taking of jurors' pictures outside the courtroom and the publication of their names and likenesses." Id., 556 N.E.2d at 1128. This Court found that such a restraint would, at a minimum, require a hearing to determine whether the order would be constitutional.
Before issuing any such order not to publish, it is obligatory upon the court to hold a hearing and make a finding that all other measures within the power of the court to ensure a fair trial have been found unavailing and deficient.
Id. at 1129 (quoting State ex rel. Beacon Journal Pub. Co. v. Kainrad, 348 N.E.2d 695, 697 (Ohio 1976)). See also State v. Clifford, 733 N.E.2d 621 (Ohio App. 1999) (finding that a court must make a finding of necessity before closing a trial).
In the present case, the trial court made no findings that an anonymous jury was necessary. No evidence of necessity was presented. In fact, the issue was not remotely addressed. The court empaneled an anonymous jury as a matter of routine, pursuant to a local rule. However, the local rule is contrary to fundamental principles of due process and constituted a structural error in Hill's trial.
D. Anonymous juries preclude public oversight of the judicial process.
Although courts have authorized the use of anonymous juries in exceptional circumstances, the results have sometimes been disastrous.
The trial of mobster John Gotti provides the best example of why anonymous juries are more prone to corruption. In Gotti's trial, the judge empaneled an anonymous jury due to fears that Gotti or his associates might threaten, intimidate, or otherwise tamper with the jury. Unbeknownst to the court, the prosecutors, or the press, one of the jurors was George Pape, a man with ties to an Irish-American organized crime group. Pape contacted Gotti's lawyers and took a bribe, resulting in Gotti's acquittal.(2) If the jurors had not been anonymous, the prosecutors or the press would have had the opportunity to investigate the jurors' backgrounds to prevent such corruption of the trial. Other notorious mobsters such as Al Capone(3) and Lucky Luciano(4)
were successfully tried without anonymous juries, and in retrospect, it is possible that their convictions are, at least in part, attributable to the fact that court openness prevented bribery or jury tampering.
In this case, no one knew the names, addresses, or phone numbers of the jurors. Such secrecy unfortunately allows for secret dealings that could undermine the goals of fairness and honesty in the judicial system.
As the U.S. Supreme Court has recognized, it serves the public interest to keep our courts open. Openness should not mean only that the public may go to the courthouse and sit in a courtroom. Rather, it is important to inspire public confidence in the judicial system by making all aspects of a trial open to the public. Revealing the names and characteristics of jurors is therefore required, as jurors play a pivotal role in any jury trial. One court explained why information about jurors can be of such great importance:
It is possible, for example, that suspicions might arise in a particular trial . . . that jurors were selected from only a narrow social group, or from persons with certain political affiliations, or from persons associated with organized crime groups. It would be more difficult to inquire into such matters, and those suspicions would seem in any event more real to the public, if names and addresses were kept secret.
In re Globe Newspaper, 920 F.2d 88, 94 (1st Cir. 1990); see also, U.S. v. Doherty, 675 F.Supp. 719, 723 (D. Mass. 1987) (jurors should be known because it provides an "independent, non-governmental verification of the utter impartiality of the process involved in selecting jurors and shielding them from improper influences").
Because jurors are the people who decide the fates of criminal defendants, they are an integral part of the judicial system. Hiding their identities from the parties and the public raises grave constitutional concerns and violates the general principle of open courts. Anonymous juries should be used, if at all, only in the most extreme circumstances.
CONCLUSION
Fairfield County's local rule requiring an anonymous jury in all cases is unconstitutional. Courts that allow anonymous juries have consistently recognized that anonymity must be justified by extraordinary circumstances. Juror anonymity should not be routine, as there are constitutional concerns regarding a defendant's right to a fair trial. Furthermore, the public has an interest in monitoring criminal trials, as they are held for the benefit of the public. Using an anonymous jury in the present case, sub judice, was structural error, as the trial court did not make the barest finding that juror anonymity was necessary.
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Respectfully submitted,
___________________________ Lucy Dalglish, Esq. (Counsel of Record)Gregg Leslie, Esq. Ashley Gauthier, Esq. 1815 N. Fort Myer Dr. Suite 900 Arlington, VA 22209 (703) 807-2100 Fax (703) 807-2109 Attorneys for Reporters Committee for Freedom of the Press Amici Curiae in Support of Appellee, Clifton Hill |
Attorneys for Society of Professional Journalists
Bruce W. Sanford, Esq.
Robert D. Lystad, Esq.
Bruce D. Brown, Esq.
Baker & Hostetler LLP
1050 Connecticut Avenue NW, Suite 1100
Washington, DC 20036
(202) 861-1500
Attorneys for the American Society of
Newspaper Editors
Richard Schmidt, Esq.
Kevin M. Goldberg, Esq.
Cohn & Marks
1920 N Street NW, Suite 300
Washington, D.C. 20036
Telephone: (202) 293-3860
PROOF OF SERVICE
The undersigned hereby certifies that a copy of the foregoing Merit Brief of Amici Curiae, Reporters Committee for Freedom of the Press, American Society of Newspaper Editors and Society of Professional Journalists, In Support of Appellee, Clifton Hill was served by overnight courier this 24th day of October, 2000 upon:
David L. Landefeld
Gregg Marx (Counsel of Record)
323 E. Main Street
Lancaster, OH 43130
(740) 653-4259
Fax (740) 653-4708
Attorneys for Appellant, State of Ohio
Dan Gattermeyer
Daniel Eichel (Counsel of Record)
Government Services Center
315 High Street, 11th Floor
Hamilton, OH 45012-0515
(513) 887-3474
Fax (513) 887-3489
Attorneys for Appellant's Amicus Curiae, Ohio Prosecuting Attorney's Association
James E. Phillips
Timothy Hoover
Vorys, Sater, Seymour & Pease, LLP
52 E. Gay Street
P.O. Box 1008
Columbus, OH 43216-1008
(614) 464-6400
Fax (614) 464-6350
and
Carol Wright
61 E. Lincoln Street
Columbus, OH 43215
(614) 224-2999
Attorneys for Appellee, Clifton Hill
______________________________
Lucy Dalglish (Counsel of Record)
for Amicus Curiae, Reporters Committee
for Freedom of the Press
Appendix:
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| [Appx: Decision in Commonwealth v. Michael Kevin Dupont, 1998 Mass. Super. LEXIS 476 (Aug. 24, 1998) not included in online version.] |
1. This case is part of the Appendix hereto and begins at page A2.
2. See, Abramovsky & Edelstein, Anonymous Juries: In Exigent Circumstances Only, 13 St. John's J.L. Comm. 457, 466-67 (1999).
3. Capone v. U.S., 56 F.2d 927 (7th Cir. 1932)
4. People v. Luciano, 14 N.E.2d 433 (N.Y. 1938)