A Maine law; and restrictions on interviews

State law may restrict how much information the public receives about a jury. In June, Maine legislators passed a law shielding the names of jurors and prospective jurors from the public even after their jury service ends.

Instead of requiring courts to explain why the names should be kept secret, the newly amended Title 14, Section 1254-B of the Maine Revised Statutes requires members of the public to show why jurors' identities should be revealed. Attorneys and litigants who act as their own attorney may have access to juror names and qualification forms for use during jury selection, but may not disclose the information to anyone without the court's permission.

Media lawyer Shafritz said the law allowing parties but not the public to know jurors' identities "seems like a direct burden on the First Amendment to prevent the news media from having the traditional access that it seems to have had to these names."

Two of the state's highest-ranking judges, Supreme Judicial Court Chief Justice Leigh Saufley and Superior Court Chief Justice Thomas Humphrey, publicly supported the bill, which apparently was born out of generalized concern for juror privacy.

Under the old law, juror names were available upon request after a trial was over unless a court found the information should be kept confidential "in the interest of justice." The language mirrors the federal law governing jury selection plans in federal district courts; Title 28, Section 1863 (b)(7) of the U.S. Code permits judges to keep juror names confidential "in any case where the interests of justice so require." Now, however, a state court in Maine may release the names of jurors only if it finds that disclosure "is in the interests of justice."

In deciding whether to disclose the names, Maine judges can consider the jurors' interests in safety and privacy, the desire to encourage "candid responses from prospective jurors," and the interest of the press and public in making sure "trials are conducted ethically and without bias," according to the new law.

"Frankly, I think it's a terrible standard because it basically leaves it entirely up to the courts to decide what's going to happen, and it pretty much makes it impossible, I would think, for us to pursue any kind of watchdog efforts on whether or not a jury was fair or representative of the community," said SPJ President Gratz.

He said a court likely would have to find that a trial had been compromised "before they'll even have a rationale to release us the information that would enable us to publicize that fact."

Gratz was unaware of any particular incident that prompted the legislature to reverse the presumption of openness. Indeed, the Portland Press Herald reported that the proposed limitations were "preemptive and not a response to specific problems."

"It sort of looked to me like a bill in search of a purpose," said Maine Association of Broadcasters president and CEO Suzanne Goucher, who said she was the only person to testify against the bill at a public hearing. She said the law "cropped up sort of as a surprise," given that there had been no publicized cases of jury tampering or threats to jurors.

Mal Leary, the president of the Maine Freedom of Information Coalition, however, said Chief Justice Saufley requested the bill because a juror had received a threat, although he could not recall the specific case. The Bangor Daily News reported that Saufley said harassment of jurors was not an issue in Maine.Mal Leary, the president of the Maine Freedom of Information Coalition,

Saufley declined to comment on the law after it was passed, but referred a reporter to Humphrey, the chief of Maine's trial courts. Humphrey could not be reached.

The Senate bill to amend section 1254-B was introduced in January, one month after an American Bar Association panel recommended that state courts keep jurors' home and business addresses and telephone numbers secret, even after a trial is over, unless there is "good cause" to require disclosure. The ABA House of Delegates, the association's policy-making board, approved the recommendation in February.

"We're trying to balance the litigants' right to select a fair and impartial jury and the press's right to report on what's happening in the courthouses, versus jurors' right to some degrees of privacy," American Jury Project chairwoman Patricia Lee Refo told The Associated Press.

But the Maine law goes even further than the ABA's recommendation. Not only are jurors' identities kept hidden from the public, but so are the contents of juror-qualification questionnaires, which reflect a potential juror's fitness to serve on a jury. Under the previous law, the forms -- like the jurors' names -- were available to the public upon request after the jury was discharged.

While the new law provides for the possible release of juror names under certain circumstances after jury service is over, it makes no such provision for the previously available juror-qualification forms.

The Maine Press Association took no position on the bill, according to its attorney, Michael Mahoney, but the Press Herald decried the proposed restrictions in a Jan. 25 editorial.

"It's not as though every potential juror's data will be automatically revealed. Very few trials reach the level of public scrutiny where anyone would ask for it," the editorial stated.

Access to jury information can provide the press and the public with a truer picture of the trial process, the Press Herald pointed out. "While no one should interfere with that process as it operates, once all the verdicts are in, openness is far superior to secrecy," it wrote.

Goucher noted that knowledge of jury composition has been used to uncover information such as racial bias in a jury trial. "The only way you get at that information is to know who sat on that jury - and so it's the only way truly to know that in the end, justice has been served," she said.

Even the bill's sponsor, Republican Sen. Peter Mills, reportedly opposed keeping juror names secret after their jury service has ended. But Saufley strongly favored the law, according to Leary, who called the chief justice "a very persuasive woman."

Gratz said he did not find the attitude of the courts surprising in light of what seems to be a general societal trend toward protecting personal information. "They have really elevated the notion of personal privacy, to levels frankly I think are unproductive," he said.

It is unknown how a legal challenge to the new law would fare, although federal case law provides some persuasive authority.

In the 1990 Boston Globe decision, the U.S. District Court of Appeals in Boston (1st Cir.), which includes Maine, reversed a judge's refusal to give the newspaper the names of jurors who sat on a high-profile criminal trial. There the court interpreted the interests-of-justice standard in Section 1863 (b)(7), the federal jury-plan law. A judge must find exceptional circumstances, such as a "credible" risk of jury tampering or a threat to a juror's personal safety, before withholding the names of jurors "in the interests of justice," the court said. (In re Globe Newspaper Co.)

"While we understand, and can sympathize with a juror's desire in a publicized criminal case such as this was to remain anonymous, the juror's individual desire for privacy is not sufficient justification by itself to withhold his or her identity. Nor is the judge's general belief that, as a matter of policy, it would be better to keep the names and addresses private," Judge Levin H. Campbell wrote for the majority.

Whether the same analysis would apply to a law that presumes secrecy unless the "interests of justice" require disclosure, however, is unclear. What is certain is that the statute will have an impact on the public's right to know.

"Clearly if I can't get the names of jurors, I can never tell anybody whether or not jury selection is being done properly. Essentially I'm then left to completely trust the courts," Gratz said. "The courts here [in Maine] are generally trustworthy, but that's not the way the system is supposed to work."

Restrictions on interviews

Obtaining the names of jurors may be only half the battle; persuading jurors to be interviewed if they have been advised by the court not to talk may be just as difficult.

Because the media has a First Amendment right to interview jurors after a verdict is issued, courts may not prohibit the press from talking to jurors post-trial without a compelling reason. Judges, however, may order jurors not to discuss what happened during deliberations, or remind them that what takes place in the jury room is confidential.

U.S. District Court Judge Garrett E. Brown Jr. reportedly told jurors who convicted former New Jersey public official Harry Parkin of corruption in March it was "the better and more prudent practice" not to give interviews to the press. He then refused to let anyone, including reporters, to leave the courtroom for 10 minutes while court staff escorted the jurors out of the building, The Times of Trenton reported.

When Times reporters later tried to approach them in the parking lot or call them at home, all but one juror refused to be interviewed. Reached by telephone, juror Mary Lee Devitis said she followed the judge's instructions and based her decision on the evidence, the Times reported. She would not discuss the deliberations, according to the newspaper.

Vermont jurors, who sentenced Donald Fell last month to be executed for the kidnaping and beating death of a 53-year-old woman, were similarly reticent when asked to comment, according to The Times Argus of Barre, Vt. Judge Sessions told jury members "that jury deliberations are 'confidential' and that the case they had just decided was 'not O.J. Simpson,'" the paper reported. The Burlington Free Press managed to interview one juror, David Noyes, who said the "brutality" and "senselessness" of Fell's crime and the effect it had on the victim's family "far outweighed . . . mitigating factors."

Courts may also restrict when the interviews can take place.

In 2002, the New Jersey Supreme Court upheld a ban on juror interviews in Rabbi Fred Neulander's first murder trial even after the judge declared a mistrial. The majority opinion by Justice Gary Stein reasoned that information revealed by the jurors could give prosecutors an unfair advantage in the retrial of the capital murder case -- a possibility deemed "extremely unlikely" by the two dissenting justices. The U.S. Supreme Court in 2003 declined to review the decision.

Two years earlier, a federal appeals court in New Orleans upheld U.S. District Judge Edith Brown Clement's refusal to disclose the names and addresses of jurors who sat on former Louisiana Gov. Edwin Edwards' September 2000 trial on witness-tampering charges (of which he was acquitted). It also upheld the judge's order to jurors not to discuss their deliberations with the media without her permission. (U.S. v. Brown) The case is one of several in the Fifth Circuit, which covers Louisiana, Mississippi and Texas, affirming limits on media access to jury information.

"It's really a shame that historians are not going to be able to go back and talk to people -- if they are willing to talk -- about how they reached their verdict in the case," said The (Baton Rouge, La.) Advocate Executive Editor Linda Lightfoot, referring to the anonymous jury empaneled by U.S. District Judge Frank J. Polozola in a separate Edwards trial involving gambling-license schemes.

Other courts, however, have invalidated restrictions on contacting jurors. In 1994, a Philadelphia federal appeals court struck down parts of the trial judge's order in U.S. v. Antar prohibiting the press from repeatedly trying to interview a juror or continuing to ask questions after a juror has ended an interview.

"[R]estrictions on post-trial interviews must reflect an impending threat of jury harassment rather than a generalized misgiving about the wisdom of such interviews," the court concluded.

Some would argue that jury duty is burden enough, and that those who serve should not have to be subjected to the additional pressures of public scrutiny. Schulz said most people can sympathize with the physical, emotional and financial hardships that jurors may face. "But jury duty is a public duty," he said.

"Our court system operates on a system of open justice, and understanding who the decision makers are and being able to talk to them about decisions that may seem problematic on their face is important,"said Schulz. "So I think we start to skew the very process when we start imposing secrecy.

"The privacy interests are relevant, but they shouldn't be the controlling factors. They need to be considered in the context of how the system works."

Cases cited:

In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 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) ("Press Enterprise 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)