Secret Juries

By Kimberley Keyes

As the media continues to scrutinize juries in high-profile cases, federal and state authorities are making it more difficult for the public to identify those who sit in judgment of others.

Experts say the use of anonymous juries -- whose individual identities are kept completely secret, even from the parties to a case -- is on the rise. Such juries are most often empaneled in cases involving organized crime or terrorism, where the judge has determined there may be a real risk of jury tampering or threat to juror safety.

But even in cases where no such danger appears to exist, courts and legislatures are using other tactics to shield jurors' identities from the press. The measures -- from refusing to release jurors' names and addresses and banning jury lists from public case files, to selecting juries behind closed doors or ordering the press not to publish juror names said aloud in open court -- occur with alarming frequency as concern about protecting personal privacy swells.

Free-press advocates say secret juries jeopardize the public's right to know.

"I don't think most members of the public understand that personal privacy is one side of a two-sided coin -- the other side being the public interest -- and every time we turn over that side of the coin to protect privacy, we lose the ability to protect the public interest," said Society of Professional Journalists President Irwin Gratz, a news producer for the Maine Public Broadcasting Network. His state recently passed a law keeping the names and addresses of jurors secret even after their jury service has ended.

Secret juries also can violate the First Amendment rights of the press. In March, a three-judge panel of the U.S. Court of Appeals in New York City (2nd Cir.) invalidated a judge's order forbidding the media from publishing the names of jurors revealed in open court during the trial of former Credit Suisse First Boston executive Frank Quattrone. (U.S. v. Quattrone) The same court ruled in 2004 that the judge's decision to ban the press from attending jury selection in Martha Stewart's trial was unconstitutional. (ABC v. Stewart)

Media lawyer David Schulz of Levine Sullivan Koch & Schulz in New York said efforts by the courts to keep juror identities confidential are usually a reaction to intense media coverage, particularly in high-profile cases.

"I think judges have natural instincts to want to protect jurors and avoid subjecting their private lives to the glare of national publicity just because they're called upon to serve on a jury," said Schulz, who successfully represented the media during the Stewart trial.

The judge in the Quattrone case, for example, said in shielding the jurors' identities he was trying to avoid a Dennis Kozlowski-style mistrial. The six-month-long first trial of the former Tyco executive had ended in a mistrial less than one week earlier, after newspapers published the name of a juror who allegedly made an "OK" gesture to Kozlowski's defense team. The juror reported receiving a phone call and disturbing letter after her identity was revealed.

Despite the risks, uncovering juror identities has both societal and practical benefits.

"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," a three-judge panel of the U.S. Court of Appeals in Boston (1st Cir.) said in 1990. The court overturned a federal judge's refusal to give Boston Globe reporters the names and addresses of jurors who sat on a high-profile criminal trial. (In re Globe Newspaper Co.)

People could suspect that only those with certain social, political or even criminal connections were chosen as jurors on specific cases, the appeals court stated. "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," said the court.

Information about jurors enhances public knowledge of the court system, "and can be important to public debate about its strengths, flaws and means to improve it," the court said. Public knowledge of juror identities also could deter potential jurors from intentionally misrepresenting themselves during jury selection.

While the trial judge assumed the Globe just wanted to interview jurors about their deliberations, "other avenues of inquiry are conceivable," the appellate court noted. "Juror bias or confusion might be uncovered, and jurors' understanding and response to judicial proceedings could be investigated."

Inquiring minds

In 2001, The Philadelphia Inquirer investigated whether the jury forewoman in the first murder trial of Rabbi Fred J. Neulander actually lived in the New Jersey county where the trial took place, as state law required. Days after the court had declared a mistrial due to a hung jury, the paper published an article naming the jury forewoman and quoting her as saying she had been "staying with a friend" in Philadelphia.

"I just see that kind of story as doing my job, basically," said Inquirer reporter Emilie Lounsberry, one of the article's authors.

However, before the trial Superior Court Judge Linda G. Baxter had ordered the press not to contact jurors and not to identify them in any way -- and she refused to lift 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 another juror regarding the panel's deliberations, Lounsberry and fellow reporters George Anastasia, Joseph A. Gambardello and Dwight Ott were found in civil contempt for violating Baxter's orders. The contempt finding came in spite of a ruling by the New Jersey Supreme Court that the prohibition against naming jurors was unconstitutional. (State v. Neulander)

The reporters were fined $1,000 each and all except Gambardello were ordered to perform community service. A New Jersey appellate court overturned the contempt judgments against the reporters in May 2004.

Lounsberry, who has covered courts off and on for 20 years, said it was "very unsettling to become a defendant for doing my job."

"I really sympathize with what it's like (for a judge) to manage a difficult trial," she said, noting the proliferation of media coverage of court cases. "I understand judges really are trying to protect juries and trials - but there has to be some way for reporters to be unfettered in doing our job."

Schulz said that historically, the names of jurors were widely known, particularly in smaller communities. He pointed to the case of Dr. Sam Sheppard, a suburban Ohio physician accused of killing his wife. Three Cleveland newspapers printed the names and addresses of the 75 prospective jurors called for the 1954 trial of Sheppard, whose story inspired the television series "The Fugitive." (Sheppard v. Maxwell)

Half a century later, things are not much different, said Schulz: Big trials still capture the public's attention.

"What's different today is the number of people whose attention can be focused on a single trial because of modern technology," he said.

He said judges may also hope to discourage jurors and potential jurors from seeking the limelight in a celebrity trial, as was evident during jury selection in the Michael Jackson trial. Two jurors who sat on the case recently announced their intent to write books about their experience.

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

"If we're going to go to a system that says we're going to have essentially a black box, and if you're at a criminal trial and 12 people are going to walk in and they're going to pass judgment and we're not going to tell you who they are or what issues were important to them after the fact because you not going to be able to talk to them, it's going to fundamentally change our understanding of how the criminal justice system works and the public confidence in the reliability of the outcome," he said.