A Washington, D.C., trial judge erred when he did not allow Washington Post reporters access to the questionnaires of jurors who convicted the killer of former intern Chandra Levy, D.C.’s appellate court ruled today.
The First Amendment right of access to the voir dire examination of potential jurors — well-established by the 1984 landmark U.S. Supreme Court case Press-Enterprise Co. v. Superior Court — extends to the questionnaires filled out by the 16 jurors and alternates empanelled last October to hear the case of United States v. Guandique, the District of Columbia Court of Appeals held. Guandique, an illegal immigrant from El Salvador, was found guilty of Levy’s death and sentenced to 60 years in prison.
Trial judge Gerald I. Fisher kept the 11-page, 55-question questionnaires sealed, opting instead to release only each juror’s age, sex, occupation and educational level. The Washington Post appealed Fisher’s order, and a coalition of news organizations, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief in support of The Post.
“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,” the Court of Appeals, D.C.’s only appellate court, said in In re Access to Jury Questionnaires. “It is evident that the jury questionnaires here were used to facilitate 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 presumption, then, is that the completed questionnaires, as a part of voir dire, should be available to the press.”
The ruling is the latest in a series of court decisions addressing access to juror information in high-profile trials. 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. She withheld the names of the jurors until the panel was dismissed in order to protect their privacy and Bonds’ right to a fair 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 leading 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.
The D.C. appellate court remanded the Guandique juror questionnaire case to trial Judge Fisher for a determination of exactly what material must be released. The case presented unique procedural difficulties because Fisher improperly promised the jury that its questionnaire answers would remain confidential, the appellate court noted during oral arguments in September.
In this evaluation, Fisher must start with the presumption that the completed jury questionnaires should be disclosed in their entirety, the appellate court said. If he finds 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 must be disclosed with any court-ordered redactions supported by specific individualized findings that redaction is necessary to protect special privacy interests of the jurors and narrowly tailored to serve that interest, the appellate court ruled.
Finally, the court rejected the government’s argument that The Post waived its right of access to the juror questionnaires by failing to file a formal appeal as soon as Fisher indicated he planned to restrict access. Soon after the trial began on Oct. 25, The Post made informal requests through the court’s public affairs officer, the customary procedure by which the news media seek court records in the D.C. trial court, and did not file a motion for leave to intervene in the case for access to the questionnaires until Nov. 3, the eighth day of the trial.
“To the extent that a common law and First Amendment right of access exists, it exists today for the records of cases decided a hundred years ago as surely as it does for lawsuits now in the early stages of motions litigation. Certainly, it is when the trial is unfolding that the public’s interest is greatest, but that interest does not necessarily end at the close of trial,” the court ruled.