D.C. appeals court: Judge should have released juror questionnaires in Chandra Levy trial

Right of access extends to surveys used to ‘facilitate’ voir dire
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AP Photo by Debbie Noda

Photos of Chandra Levy at a 2002 memorial service.

The previously secret questionnaires of jurors who convicted the killer of former Congressional intern Chandra Levy were recently made public after a court decision addressing the balance between the public’s right of access and the fair trial right of a defendant in a high-profile criminal trial.

Although the First Amendment right of access to the voir dire examination of potential jurors was firmly established in the 1984 landmark U.S. Supreme Court case Press-Enterprise Co. v. Superior Court, the high Court has not addressed how written juror questionnaires affect this right of access to jury selection. And courts’ use of the documents raises questions about the public’s continuing ability to monitor this important aspect of criminal proceedings.

The District of Columbia Court of Appeals resolved this question in January, however, when it ruled that juror questionnaires are subject to the presumption of public access and reiterated the rationale underlying the strong tradition of openness.

“The value of public trials is undisputed. The presence of the public and the press at criminal trials historically has been thought to enhance the integrity and quality of what takes place,” according to D.C.’s only appellate court in In re Access to Jury Questionnaires, which held that The Washington Post was entitled to view the Levy juror questionnaires.

Quoting Supreme Court jurisprudence, the D.C. court observed: “When it extended the First Amendment right of access to the voir dire examination of potential jurors, the Supreme Court noted the significance of jury selection both to the parties and to the proper functioning of the criminal justice system. Today, when attendance at court is no longer a widespread pastime, the public relies on the press for firsthand accounts of the justice system at work. Indeed, members of the press are treated as surrogates for the public, and their access cannot be foreclosed arbitrarily.”

As part of jury selection for the trial of Ingmar Guandique, which was held in the fall of 2010 in the D.C. Superior Court, prospective jurors completed an 11-page, 55-question form. The questionnaires asked potential jurors for standard demographic information as well as case-specific information, including their knowledge about the case, familiarity with the crime area and views on gangs and illegal immigration. Guandique, an illegal immigrant from El Salvador, was found guilty of Levy’s death and sentenced to 60 years in prison.

Attorneys for both sides used the completed surveys to examine members of the jury pool during the week-long voir dire process — a use that merely “facilitated the jury selection process by exposing any biases relating to, among other issues, Latino ethnicity, illegal immigration, and gang affiliation that otherwise would have been explored through oral questioning,” the D.C. appellate court ruled.

“That a significant part of voir dire in this case was conducted through written questionnaires and not orally is of no constitutional significance. We can think of no principled reason to distinguish written questions from oral questions for purposes of the First Amendment right of public access,” Associate Judge Kathryn A. Oberly wrote on behalf of the three-judge panel. “The presumption, then, is that the completed questionnaires, as a part of voir dire, should be available to the press.”

The decision follows the “encouraging trend” among many other jurisdictions nationwide that recognize juror questionnaires as “part and parcel of the overall jury selection process,” said Bruce L. Gottlieb, general counsel for Atlantic Media Company and the attorney who authored a friend-of-the-court brief in support of The Post on behalf of a coalition of news organizations, including The Reporters Committee for Freedom of the Press.

“Two decades ago, the Supreme Court affirmed the right of the press and public to attend jury selection, but what really matters is how local courts interpret that right,” Gottlieb said in an interview. The opinion reflects an understanding that “criminal justice proceedings must be conducted out in the open [so that] the media watchdogs are able to expose problems within the system.”

The court concluded that trial Judge Gerald I. Fisher erred when he sealed the questionnaires of the 12 jurors and four alternates and released only each juror’s age, sex, occupation and educational level. The appellate court thus ordered Fisher to determine exactly what material had to be released, a task complicated by the fact that he improperly promised the jury that its questionnaire answers would remain confidential.

Despite that guarantee, Fisher was required, in his evaluation, to start with the presumption that the completed jury questionnaires should be disclosed in their entirety, the appellate court said. If he found any responses that “touch on deeply personal matters that may warrant redaction,” Fisher should call those jurors into his chambers to give them an opportunity to voice on the record any concerns they may have about public disclosure of the information, it added.

The questionnaires had to be disclosed with any court-ordered redactions supported by specific individualized findings that redaction was necessary to protect special privacy interests of the jurors and narrowly tailored to serve that interest, the appellate court ordered.

Nearly a week after the ruling, Fisher called the 16 jurors and informed them that he was going to release their questionnaires to the media, according to a Washington Post article. The judge removed answers to only one question—whether the juror, any family member or close friend had been a victim of or accused of sexual assault—after some jurors expressed concern about the disclosure of that information, the newspaper reported.

The D.C. court’s ruling is the latest in a series of judicial decisions addressing access to juror information in high-profile criminal trials. U.S. District Judge Susan Illston in San Francisco, the federal judge overseeing United States v. Bonds, the perjury and obstruction of justice trial of Major League Baseball slugger Barry Bonds, made the questionnaires of jurors selected for oral questioning available for public inspection but not copying.

Illston’s decision turned on an evaluation of how the questionnaires were used — as substitutes for the oral voir dire process of all potential jurors who were seated for questioning.

In contrast, Illston declined to release juror questionnaires of those individuals who were not questioned during voir dire, noting that “although these individuals will have filled out questionnaires in preparation for possible participation in the voir dire process, they will not actually have participated in the criminal trial, and their questionnaires will have served no function in the selection of the jury.”

Illston then had to decide whether there were any overriding interests that weighed against disclosing the questionnaires. She concluded that the jurors’ privacy rights and Bonds’ right to a fair trial were “compelling government interests” that supported a temporary withholding of the jurors’ names until the panel was dismissed.

Addressing the right of public access to juror information in another high-profile criminal trial, a panel of the U.S. Court of Appeals in Chicago (7th Cir.) ruled that the judge overseeing the re-trial of former Illinois Gov. Rod Blagojevich on fraud and related charges had failed to make the necessary findings to overcome the presumption of access to juror names at the time of jury selection. In response, one of the country’s most prominent federal appellate judges wrote a vigorous opinion arguing that little public interest exists in knowing the names of jurors, and no presumption of access to juror names should be recognized.

Florida Circuit Court Judge Belvin Perry likewise sparked controversy last summer when he announced that the names of the 12 jurors who acquitted Casey Anthony of murder would be sealed for longer than usual because of concerns about their safety. The judge imposed the nearly three-month “cooling off period” in the hopes that the anger of those outraged by the contentious not guilty verdict would assuage over time.

More information is available in the “Access to Juror Questionnaires” report in the Reporters Committee’s Secret Justice series, available at http://www.rcfp.org/secret-justice-access-juror-questionnaires/introduction.