Appeals court dismisses media challenge to anonymous jury

NINTH CIRCUIT–In early June, the U.S. Court of Appeals in San Francisco (9th Cir.) unanimously dismissed a news media challenge to secrecy orders in the Unabom case that sealed jurors’ names and some legal filings until trial proceedings ended.

According to the court, there was no need to decide whether the trial judge’s orders were legal because they were lifted after defendant Theodore Kaczynski pleaded guilty. Nevertheless, the court stated, “High-profile criminal cases are a staple of broadcast and print news, and one can reasonably expect courts to issue closure orders in such cases in the future.” In particular, the court noted that “Kaczynski’s impending trial attracted extraordinary attention from the news media, the general public and crackpots nationwide, and managed to stir up ‘deep passions’ unusual even for high-publicity trials.”

The court held that the district court found substantial evidence that many people associated with the trial had received threats or had been harassed by the press and members of the public, and concluded that the jurors would be subject to similar threats and harassment unless their identifying information was withheld until after discharge. Moreover, the court noted that the district court found that it was not just that certain individuals had been threatened or harassed, but that the intrusions were of a distinctly menacing and pervasive nature.

The court noted that “while there will, no doubt, be other high- profile criminal trials that share a few of this case’s more unusual elements, it is highly unlikely that any will substantially mirror the circumstances presented here.” The court also stated that if Kaczynski or the government were again to move to impanel a partially anonymous jury, they would have to offer up new evidence that the case still stirred up “deep passions” despite the passage of time.

Charity Kenyon, lawyer for the Unabom Trial Media Coalition, told the Associated Press that she was relieved that the court declared the case moot, without setting standards for future cases that could have broadened judges’ power to impose secrecy in high-profile trials.

The Unabom Trial Media Coalition is made up of the Associated Press, four newspapers and several radio and TV stations that covered Kaczynski’s trial. The Reporters Committee for Freedom of the Press, along with other media groups, filed an amicus brief in support of the coalition.

In October 1997, federal District Judge Garland Burrell ordered that prospective jurors’ names and other identifying information be withheld. Burrell said jurors could otherwise face unwanted attention. The order was backed by both prosecution and defense lawyers. Jurors’ names were released after Kaczynski pleaded guilty in January 1998 to bombings that killed three people and injured 23.

In addition to keeping the jury anonymous, Burrell sealed records that contained statements by Kaczynski about other bombings, and a defense motion about the specifics of a proposed mental-state defense. Those records were also released after the guilty pleas. (The Unabom Trial Media Coalition v. U.S. District Court for the Eastern District of California; Media Counsel: Charity Kenyon, Sacramento)