Appeals court invalidates prior restraint against publication of juror names

• A judge’s order not to publish juror names revealed in open court during the trial of Frank Quattrone violates the First Amendment, according to a Second Circuit panel.

March 24, 2005 — A judge’s intent to avoid a mistrial linked to the publicity of a juror’s name failed to justify an order forbidding the press from publishing the identities of potential jurors revealed in open court in the trial of former Credit Suisse First Boston executive Frank Quattrone, a New York federal appeals court panel ruled Tuesday.

The U.S. Court of Appeals (2nd Cir.) held that the prior restraint imposed by District Judge Richard Owen against the media last April violated both the free speech and free press clauses of the First Amendment.

“While we appreciate the district court’s efforts to avoid an unfair or disorderly trial, the freedoms of speech and press invariably must inform a court’s choice of remedy,” Judge Sonia Sotomayor wrote for the three-judge panel.

During jury selection in the retrial of Quattrone, Owen stated the names of 12 potential jurors in open court. He then announced that “it’s an order of this court that no member of a press or media organization is to divulge at any time until further order of this court the name of any prospective or selected juror.”

A coalition of media organizations objected. At a hearing the next day, Owen explained he wished to avoid a situation like the case of former Tyco executive Dennis Kozlowski, whose six-month trial ended in a mistrial after newspapers published the name of a juror who allegedly made an “OK” gesture to the defense. That juror reported receiving a phone call and disturbing letter, which prompted the trial judge to declare a mistrial less than a week before Quattrone’s retrial.

Owen refused to lift his ban, saying the press could publish the jurors’ names after the trial ended. Twelve media organizations, including The New York Times, The Washington Post and The Associated Press, appealed to the Second Circuit. In the meantime, Quattrone was convicted of obstructing a federal stock investigation and sentenced to 18 months in prison. Although Owen’s order became moot once the trial ended, the appeals court decided the case because the issue could arise in future trials.

The appellate court noted that the record did not show that publicity would hurt Quattrone’s chances for a fair trial. Instead, Owen “based the prior restraint entirely on the incidents of the Kozlowski trial.” The court further stated that although Owen had rejected a defense request for an anonymous jury, he failed to consider other alternatives — such as changing the trial venue or sequestering the jury — as required by First Amendment law. Finally, the court deemed it “significant” that the names were read aloud in open court, noting that “any member of the public present in the courtroom could have learned the jurors’ names and disseminated that information as widely as possible.”

Forbidding the media from communicating information revealed in open court was “an independent constitutional harm . . . [that] rendered the district court’s violation of the First Amendment even more plain,” the court held.

Attorney David Schulz of Levine Sullivan Koch & Schulz, who helped represent the media coalition, has said that while the names of prospective jurors are routinely made public during jury selection, “the press historically has refrained from publishing” them.

(U.S. v. Quattrone, Media Counsel: Floyd Abrams, Cahill Gordon & Reindel, New York) — KK

Related stories:

• Media groups protest prior restraint in Quattrone case (04/14/2004)
• Judge in Quattrone case refuses to withdraw prior restraint order (04/16/2004)

© 2005 The Reporters Committee for Freedom of the Press

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