A three-judge panel of the District of Columbia Court of Appeals weighed Tuesday whether the questionnaires of jurors who convicted the killer of former intern Chandra Levy should be made public.
The Washington Post, Associated Press, Gannett Co., Inc. and The Reporters Committee for Freedom of the Press filed a motion last November in U.S. v. Guandeque seeking the release of trial evidence and questionnaires filled out by potential jurors during the selection process known as voir dire. Guandeque, an illegal immigrant from El Salvador, was found guilty of Levy's death and sentenced to 60 years in prison.
The issue of evidence was resolved before the end of the trial, but Judge Gerald I. Fisher kept the 11-page, 55-question questionnaires sealed, electing instead to release only each juror's age, gender, occupation and educational level.
The Washington Post appealed the ruling, urging the appellate court to release the questionnaires of the 16 jurors and alternates ultimately empanelled to hear the case.
At Tuesday's hearing, counsel for the government conceded that Fisher erred in sealing the documents, since the 1984 landmark U.S. Supreme Court case Press-Enterprise Co. v. Superior Court created a presumption of access to voir dire proceedings under the First Amendment. Most of the hearing was spent discussing what action the appellate court should direct Fisher to take now, given his pledge to the jury that questionnaire answers would remain confidential.
Washington Post lawyer Bruce Brown said the trial court should review the information and only redact that which is deemed to threaten legitimate privacy interests.
"If the court felt there were close calls, let jurors appear [in the judge's chambers] to explain why the information should be redacted," Brown said.
The government's counsel requested that the court examine "the timeliness issue," arguing that The Post did not act quickly enough to now claim relief, noting that the paper did not request access to the questionnaires of the 16 jurors until after the trial began, despite its knowledge before jury selection began that the court intended to keep the documents confidential.
"It's hard to imagine The Post's inaction equates to a waiver," Court of Appeals Judge Stephen H. Glickman said in response.
The government's counsel said the request was untimely once the jury was sworn in, making it too late to "unscramble the egg."
Brown, when questioned about the motion's timing, said, "Press-Enterprise applies whether anyone intervenes or not."
"Let's not lose sight of the fact that Press-Enterprise can still take place right now," he later said.
Brown explained that the The Post was delayed in filing a formal motion because it first tried to obtain a resolution through informal means, including communications with the court's public affairs officer.
The three-judge panel did not set a time frame for issuing a ruling.