Court opens post-trial questioning of jurors

PENNSYLVANIA — Post-trial questioning of jurors about allegations of juror misbehavior should be open to the press and the public, the U.S. Court of Appeals in Philadelphia (3rd Cir.) ruled in early January.

Robert Simone was convicted of racketeering and extortion in December 1992 in federal court in Philadelphia.

After the verdict, one of the jurors said that other jurors watched television reports, read the newspaper and discussed the case, despite the trial judge’s instruction not to do so.

On January 19, Simone asked the trial court to examine the jurors in camera to investigate the alleged misbehavior. Two months later, the court agreed to investigate the charges and Philadelphia Newspapers, Inc., owner of the Philadelphia Inquirer and the Philadelphia Daily News, requested access to the hearing. On March 21 Central States Publishing, owner of Delaware County Daily Times, and Legal Communications, owner of the Legal Intelligencer, also filed motions seeking to attend the questioning.

The court denied the media’s motions on March 22, finding that the presence of the press in the proceeding would interfere with the jurors’ candor and that any public interest was outweighed by the “interest of justice to conduct a hearing in the least coercive atmosphere.” The media immediately requested that the proceedings be stayed. The court also denied this motion and began to question the jurors.

The same day, the media filed an appeal and a motion for a stay of the hearings in the U.S. Court of Appeals in Philadelphia (3rd Cir.) The appeals court granted the stay that afternoon.

When the district court was notified of the stay, it said it had no further need to question the jurors.

On April 1, with the media appeal pending, the district court released the transcript of the examination of the jurors, with their names removed.

In early January the appellate court reversed the order closing the hearings, holding that the right of access applies to post-trial proceedings of this nature, citing the “experience and logic test” under Press- Enterprise v. Superior Court (Press Enterprise II). It found the lower court’s findings inadequate to support closure proceedings of the questioning of the jurors and that the release of the transcript cannot cure restrictions on the right of access.

(U.S. v. Simone; Media Counsel: Samuel Klein, Mary Kohart, Philadelphia)