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Federal judge unseals jury questionaires in Bonds trial

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A federal judge in San Francisco ruled Monday that completed juror questionnaires in the upcoming criminal trial of former professional…

A federal judge in San Francisco ruled Monday that completed juror questionnaires in the upcoming criminal trial of former professional baseball player Barry Bonds will be available to the public, but the names of the jurors will remain sealed until after the trial.

Bonds, Major League Baseball's all-time leader in home runs, played his final game with the San Francisco Giants in September 2007 and was indicted two months later on charges that he lied about using steroids to a federal grand jury in 2003. Bonds is charged with four counts of perjury and one count of obstructing justice. His rescheduled trial is set to begin on March 21.

Bonds' trial was previously set for 2009, but was postponed due to the government's filing of an interlocutory appeal. Because of the appeal, the court did not rule at that time on a request by the Associated Press, ESPN, The New York Times Co. and other media organizations to vacate the court's previous ruling that questionnaires of potential jurors would be filed under seal.

Last month, the media asked the court to reconsider the juror questionnaire issue. On Monday, U.S. District Court Judge Susan Illston rescinded her previous sealing order. In her 10-page opinion, Illston held that, in light of the longstanding principle that the press and the public are able to attend and report on voir dire, the process of jury selection,"copies of the jury questionnaires filled out by individuals who actually are 'called to the jury box for oral voir dire,' will be made available for public and press review during oral voir dire."

The court's order specified that 10 copies of the questionnaires would be available to the public and press at the time of the juror questioning. "The questionnaires are a proxy for an extended oral voir dire, and should be treated as such," Illston wrote. The press and public may view, take notes on and report on the written questionnaires, but as with voir dire generally, they may not photograph the completed questionnaires, the opinion said.

Duffy Carolan, partner at Davis Wright Tremaine and counsel for the media entities in the case, said she is extremely happy with this ruling. "The court recognized that, even though the Ninth Circuit hasn't addressed this issue specifically or the U.S. Supreme Court . . . the right of access to written questionnaires is grounded in federal constitutional law," she said.

Although the juror questionnaires will be available during the voir dire process, Illston ruled that the names of the jurors will not by released until after the trial. Illston's opinion said that she assumed that the presumption of access applied to juror identities, but that specific circumstances justified not disclosing the names until after the trial.

Noting the "very high profile" nature of the case, she wrote: "[T]he parties and the Court are concerned about the possibility that any members of the public, press or non-press, will interact with jurors during the trial in ways that might invade the privacy of the jurors and ultimately negatively impact the fairness of the proceedings." She cautioned about the possibility of jurors being "harassed or offered money to provide information about themselves or the case."

Additionally, Illston was concerned that a juror would be approached by someone and notified of inadmissible evidence either in person or, for example, by someone "posting a short message on the juror’s Facebook page."

In other ways, the court went out of its way to ensure that the media had access to the trial. Illston's opinion said she is allowing the proceedings to be broadcast live on a video and audio feed to the courthouse press room and will permit the use of laptops and smart phones in the court room so reporters can file their stories directly from the trial.

Carolan noted how significant and rare this meaningful access is to a lot of her clients. She described how difficult it normally is for journalists to use "these ordinary tools of the trade" to report from a trial. "This doesn't always happen; nice to see."