Access in federal courts

State courts, including Ohio and Michigan, have held that the First Amendment grants a qualified post-trial right of access to juror names and addresses. (State ex rel. Beacon Journal Pub. Co. v. Bond; In re Disclosure of Juror Names and Addresses) The Ohio Supreme Court also found a qualified right of access to jury questionnaire forms, which courts use to determine whether potential jurors are suitable for service. In some states, the list of jurors' names is put into the case file, becoming public record after the trial ends.

A new federal court policy, however, mandates that documents containing identifying information about jurors or potential jurors are no longer included in the public case file and are unavailable to the public, either electronically or at the courthouse. Citing "security and law enforcement issues unique to criminal case file information," the Judicial Conference -- the principal policy-making body of the federal court system -- adopted the restriction in March 2004 as part of its guidelines permitting electronic access to criminal case records in federal courts. (See http://www.privacy.uscourts.gov/crimimpl.htm)

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

Karen Redmond, a public information officer for the Administrative Office of U.S. Courts in Washington, D.C., said despite the new policy, the press should still have access to jurors' identities after a trial is over. Juror names are available in the jury management 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 the names 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 Law reporter visited the federal district courts in Washington, D.C., and Alexandria, Va., and requested the names of jurors from the jury management database in specific criminal and civil cases. Clerks at both courts denied the requests, saying the public does not have access to the jury management database.

"We never give out jury names" without an order from the judge, said Alohna Jones, jury administrator at the federal district court in Washington.

Phone calls to federal district courts around the nation yielded similar 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's authorization. Others simply referred press inquiries to other officials.

"Everything in this office is extremely confidential," said Peggy McCarragher, jury administrator for the federal district court in San Diego. She said all media requests had to go through the court clerk's office.

Edward Adams, the public information officer for the Alexandria federal court, said he discloses the names and addresses of jurors who served on a case unless the court empaneled an anonymous jury, which is rare. He said "as a courtesy" he informs the 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 to reporters who ask," he said.

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

On the day the jury began deliberating, the media notified the court clerk's office that it would seek to intervene in the case to challenge the judge's refusal, she said. It turned out to be unnecessary.

"At the end of the day, I learned from the court clerk that the judge had changed his mind and would release the names of the jurors after they had rendered their verdict," said Shafritz, who along with colleague Robert Hemley was prepared to argue that withholding the jurors' identities implicated First Amendment rights 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 of the 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 selecting potential jurors. Title 28, Section 1863 (b)(7) of the U.S. Code, which governs jury plans, mandates that each court determine when "the names drawn from the qualified jury wheel" will be made public. "If the plan permits these names to be made public, it may nevertheless permit the chief judge of the district court . . . to keep these names confidential in any case where the interests of justice so require," the law states.

The Administrative Office of U.S. Court is advising federal trials courts to review their jury plans in light of the March 2004 policy keeping juror names out of the public case files, said Senior Program Specialist David Williams. He noted that some federal circuit courts recognize a qualified right of access to juror information.

Under Vermont's jury plan, the names of potential jurors are not made public, Wasko said. "But once a jury has been selected, there is a right to know and I don't think the judge can hold on to that [information] forever," he said.

Reporters may be able to get the names of jurors in federal cases predating the 2004 policy simply by digging through the case file. For example, the bulging file on U.S. v. Watson in the federal district court in Washington, D.C., contains the full names of potential jurors in the 2003 case, in which a North Carolina tobacco farmer was convicted of making bomb threats on the National Mall. Handwritten notes on the sheet indicated which people were chosen as 12 jurors and two alternates in the trial of farmer Dwight Watson, who turned out to be carrying insect repellant. (The file also contained notes from the jurors, signed by the foreman, including one that said, "May we see the Raid can.")

Another way to identify jurors is through jury selection. Because the U.S. Supreme Court held in Press Enterprise Co. v. Superior Court of California ("Press Enterprise I") that the First Amendment requires the jury-selection process -- called voir dire examination -- to be open to the public, reporters can learn jurors' names during the proceeding or by obtaining a copy of the transcript. The Times of Trenton reported that it tracked down several jurors who sat on the Parkin trial by the phonetic spelling of names said aloud in open court.

Reporters covering the 1993 federal racketeering trial of the founders of Crazy Eddie's electronics store were not so lucky. The judge asked the press to leave the overcrowded New Jersey courtroom during jury selection to accommodate the high number of potential jurors. When the media asked for the jurors' names and addresses at the end of the trial, the judge responded by sealing the transcript of the voir dire proceedings and other records. The U.S. Court of Appeals for the 3d Circuit reversed, holding the judge failed to make findings to justify the sealing. (U.S. v. Antar)

Sometimes, potential jurors are referred to by number rather than name during voir dire to protect their privacy. This method left The New York Times to speculate on the identities of jurors during the recent fraud trial of former HealthSouth CEO Richard Scrushy in Birmingham, Ala.

"[J]uror No. 467, who expressed doubt over unanimity in her note to the judge last week, may be one of three black women on the jury," the Times reported May 31.

As dissent among the Scrushy jurors appeared to threaten a mistrial, the newspaper used information from jury-selection transcripts to compile profiles of the 12 jurors, charting their gender, marital status and hobbies. One man, married with two young children, "[l]ikes to hunt and fish," the Times reported; another juror, the mother of a young child, enjoyed "shopping, sewing and architecture." The jury acquitted Scrushy of all charges in June.

Referring to jurors by number rather than name can raise concerns for a fair trial as well as for public access, since it may lead a jury to think it has reason to fear the defendant. The Ohio Supreme Court in 2001 upheld the use of an anonymous jury in the murder trial of a man convicted of gunning down his stepfather. Because the defendant did not object to the trial court's practice of keeping the names and addresses of all jurors secret, the high court refused to consider the propriety of the rule, "even though we recognize that [it] implicates important concerns that would clearly be worthy of review by this court if the issue had been properly presented." (Ohio v. Hill)

In the Martha Stewart case, where jurors were selected in the judge's robing room, the press learned the identities of the jurors at the end of the trial. The judge's practice was to poll the jury members by name when they returned a verdict, media lawyer Schulz said.