A long, steady slide back to secrecy

From the Fall 2000 issue of The News Media & The Law, page 2.

"To work effectively, it is important that society's criminal process 'satisfy the appearance of fairness,' . . . and the appearance of justice can best be provided by allowing people to observe it." Richmond Newspapers v. Virginia, 448 U.S. 555, 571 (1980).

Pity today's court reporters.

In the 20 years since the Richmond Newspapers decision, in which the U.S. Supreme Court made it clear that criminal trials are presumptively open, justice has taken a long, steady slide back to secrecy.

In many jurisdictions, the days of reporters reviewing court files, interviewing parties and their lawyers, asking clerks and judges procedural questions and interviewing jurors after they have delivered their verdict are long gone.

Whether it is because judges fear a jury will be influenced by pre-trial coverage or because they just do not want to be annoyed by media coverage, judges are closing proceedings and gagging parties at an alarming rate. Reporters are forced to rely on leaks, rumors and innuendo.

Anonymous juries are increasingly common — and offensive. Once used as a last resort in cases involving mobsters, this practice is routine in too many courtrooms — despite the Supreme Court's admonition in Press-Enterprise I that "the process of selection of jurors has presumptively been a public process."

A misguided notion of "juror privacy" has supplanted the Supreme Court's declaration that openness "vindicates the concerns of the victims of the crime, the community and defendants in knowing that the criminal justice system operates fairly and justly."

As a federal court reporter in the late 1980s, I visited the federal courthouses in St. Paul and Minneapolis almost daily. One senior judge always encouraged his clerks to answer my questions and was frequently available to explain procedural issues to me. But when it came to juries, he went out of his way to thwart my efforts to talk to them.

The judge, the late Edward Devitt, refused to allow me to see lists of jury members — he said if I wanted to know who they were, I could sit in his courtroom and listen to voir dire.

Covering a routine verdict became a game of wits with this guy. When the son-in-law of an esteemed Minnesota politician was found guilty of numerous counts of fraud, the judge thanked the jury for their service and told them they were free to discuss their deliberations with anyone, but that they were not obligated to do so — a typical directive by a judge.

As the jury left the courtroom, I got up to wait for them to file out of the courthouse. I got to the courtroom door and discovered it was locked. The judge had instructed the bailiffs to lock me in the courtroom until the jury had left the building. Reporting from this judge's courtroom became a delicate dance of sitting near the door to listen to the verdict and dashing out before the bailiffs could pull out their key chains.

Today's judges are much more direct. They issue orders sealing pleadings and settlements, gagging parties and counsel, closing jury selection and banning media coverage. Most of the orders are of dubious constitutionality.

During the next two years, the Reporters Committee will explore this trend toward secrecy. The first in a series of "Secret Justice" reports appears in this issue as a pullout section on the use of anonymous juries. McCormick-Tribune Legal Fellow Ashley Gauthier's accompanying cover story explores the risks Americans take when they allow justice to be dispensed by a secret jury.

— Lucy Dalglish