Trying blind

Secret juries continue hearing major cases.

From the Fall 2007 issue of The News Media & The Law, page 23.

By Corinna Zarek

With national security and terror cases on the rise, courts keeping juror identities secret for safety reasons leave reporters with less access to those deciding high profile cases.

While not a new practice, allowing jurors’ identities to remain secret has historically been rare, typically occurring in high profile cases receiving great media attention, cases involving organized crime and, most recently, cases involving issues of national security or terrorism.

Secret juries preclude journalists from conducting their own background checks on jurors — which in the 1987 racketeering trial of mobster John Gotti might have avoided what legal scholars believe was jury tampering that led to a “not guilty” verdict.

Knowing jurors’ identities gives reporters important access to the persons involved in the public justice process, said Dave Tomlin, the associate general counsel for The Associated Press.

“The public has to witness the process in order to trust it and ensure it is operating in the way it is supposed to,” he said. “If important decisions are made by a jury of peers who aren’t named, it throws a cloak over the process of justice and turns the proceeding into a secret one that undermines the entire justice process.”

Mob Mentality

Anonymous juries have long been requested — and often used — in cases involving organized crime. Historically, these are cases in which a court is concerned about jury tampering and juror safety, fearing threats and retribution against jurors.

“You see (them) in organized crime cases where you’re worried about the jury’s safety,” said Greg Reinert, a spokesman for the U.S. Attorney’s office in Camden, N.J.

Recently, a Chicago federal court ordered a secret jury in an organized crime case that resulted in five convictions for a racketeering conspiracy involving illegal gambling, extortion, loan sharking and 18 unsolved murders. Termed the “Family Secrets” case, it was the first that Chicago Sun-Times reporter Steve Warmbir covered involving an anonymous jury.

The 10-week trial involved a jury of five men and seven women who on Sept. 28 found three mobsters responsible for 10 murders. Although his reporting wasn’t affected by their anonymity throughout the actual trial, Warmbir had expected it to be an issue after they reached their sentence — and it was. The court provided a room where jurors could talk with the media after they announced their verdict, but Warmbir said none chose to speak at that time.

“This was a heavily covered story with a swarm of media,” he said. Warmbir had hoped jurors would want to talk since they decided “such an historic case,” but they left through a separate entrance, he said.

Sun-Times reporters stationed outside were able to catch several jurors as they left, but only one granted a short interview. The juror, who refused to provide her name, said that she did not have any fear over reaching their verdict, convicting three men of racketeering and murder. 

Prior to the jury returning its verdict, the Chicago Tribune filed a motion asking the court to unseal the juror names, but the court rejected its bid, ruling the newspaper had not established a qualified right of access to that information.

Whether the jurors will eventually speak with the media is “certainly up to them,” Warmbir said, but he hopes they will consider it. “I’m sure there are a lot of concerns they have in terms of their safety.”

Tamper, Tamper

Juror safety was also recently a consideration in the New Jersey court that will hear the trial of six men accused of plotting to kill military personnel at the Fort Dix army base in central New Jersey. Attorneys on both sides conferred with the judge before the trial to discuss the possibility of empaneling an anonymous jury.

“It’s not particularly common, but given the media attention in this case, we were all aware that it might be a possibility,” said Rocco Cipparone, counsel for one of the six accused men.

All defense counsel objected to a secret jury in this case, Cipparone said, but the judge granted the prosecutor’s request for an anonymous jury, noting the coverage the case was already receiving. “In this case, my sense of the court’s rationale is the level of media attention the case has already gotten and to shield jurors from the media attention,” he said.

But, Cipparone argued, the secret jury “wasn’t particularly warranted because there was no reason to believe the defendants would tamper with the jury.”

Tomlin, who works with AP reporters covering trials across the country, said it is important that courts don’t use conjecture in calculating a risk to jurors. “I understand a jury must not be tampered with and there are specific times they might need protection, but speculating that jurors might be at risk or inconvenienced is inappropriate,” he said.

Alternatively, jurors who legitimately fear retribution may see a need to take steps to keep their names private. Two jurors in a Connecticut death penalty case were recently excused for fear of their safety after the Bridgeport-based Connecticut Post revealed the names of the 18 jurors and alternates slated to decide whether a defendant was guilty of the brutal execution-style slaying of a mother and her eight-year-old son.

Though the judge hadn’t ordered the jurors’ identities to remain sealed, more than one juror said he or she was surprised to see the names disclosed in the newspaper. The remaining jurors and alternates determined the disclosure would not affect their ability to serve and remained on the jury.

The Post defended its act, pointing out that the judge hadn’t raised any concerns over juror safety in this case. “How do you know if the jury is impartial if you don’t know who they are and something about them?” editor James H. Smith asked.

Shedding Light

Real people who are members of a defendant’s community make up a jury, and access to those people is necessary to ensure the justice system is working properly, Tomlin said.

“The extraordinary steps designed to put a black curtain around these people undermines the system and public trust,” he said.

“What we’re interested in most is the ability to contact jurors after the trial – to shed light on their deliberations and their reasons for the verdict,” Tomlin added. “Where a judge takes extensive steps to stop that, we fight it,” he said.

Though mention of national security and terrorism issues continue to increasingly permeate national conversations, Tomlin said he hasn’t noticed an increase in the number of cases using anonymous juries that the AP has fought.

Blanket Curtain

One fight to unseal juror names that the Reporters Committee led with other media groups in 2001 lost due to a procedural technicality; however the court involved indicated that given the proper procedure it might consider whether requiring anonymity for all juries in an Ohio county was proper.

Fairfield County in central Ohio established a 1996 rule “to alleviate the concern of the jurors for fear of intimidation and/or harassment, to encourage jurors’ willingness to participate as jurors, and to fulfill the Court’s promise of confidentiality.”

When the Ohio Supreme Court heard the defendant’s argument that the anonymous jury rule was improper in State v. Hill, it rejected the argument procedurally because the defense had failed to raise it at trial. The court, however, almost invited a challenge to the rule in its opinion.

“Due to appellee’s failure to raise the anonymity issue at trial, we decline to consider the propriety of the anonymous-jury local rule, even though we recognize that the rule implicates important concerns that would clearly be worthy of review by this court if the issue had been properly presented,” wrote Judge Alice Robie Resnick.

No party has since litigated the issue, according to media lawyer Dick Goehler.

Goehler, with Frost, Brown, Todd in Cincinnati, said he was surprised that this matter “seems to have dropped off the radar” given the “flurry of activity” at the time.

Goehler said he has not heard of a similar blanket anonymity rule anywhere else, but has only seen juror identities sealed in case-by-case situations.

In Fairfield County, “the rule is still out there, but we don’t know if it’s being used,” he said.