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Pleading the First

The public's First Amendment right of access to high-profile trials is at risk, as more and more judges shield court…

The public’s First Amendment right of access to high-profile trials is at risk, as more and more judges shield court proceedings from the news media

From the Spring 2004 issue of The News Media & The Law, page 7.

By Jeff Lemberg

Martha Stewart’s celebrity won her the right to be tried by an anonymous jury. Ironically, the home-decorating guru’s fame may have also played a role in the jury finding her guilty on March 5 of conspiracy, obstruction and making false statements relating to her illegal sale of stock in a pharmaceutical company.

The verdict “was a victory for the little guy who loses money in the market because of this kind of transaction,” said juror Chappelle Hartridge, a name that was first made public only after the verdict was reached. “It sends a message to bigwigs in corporations; they have to abide by the law. No one is above the law.”

Celebrity plaintiffs may sometimes be above public scrutiny, however. In recent high-profile cases from New York to California, judges are taking overly broad steps to ensure fair trials under the intense spotlight of media interest.

Sweeping gag orders, the excessive sealing of court documents, the secret selection of jurors. When the person on trial is a celebrity — be it a public figure or a de facto “star” as a result of the sensational nature of the alleged crime — the constitutional rights of the media to observe criminal court proceedings are increasingly losing out.

Following a handful of recent cases involving juror confidentiality, it’s a problem First Amendment advocates fear may only get worse. With the advent of 24-hour cable news stations, the ever-growing number of Internet authors, and the explosion of the “infotainment” industry, courts are taking extraordinary action to control the dissemination of information that has long been considered public.

“There is a trend across the country right now that the more public interest there is in a case, the less public openness the courts will allow.” — media attorney Ted Boutrous

There is no shortage of notorious criminal cases in American courtrooms these days.

Los Angeles Lakers star Kobe Bryant faces charges in Colorado of raping a 19-year-old woman. Singer Michael Jackson has been indicted in California for sexually assaulting and drugging a boy under the age of 14. Down the coast, agriculture supply salesman Scott Peterson faces charges in the murder of his wife, who was eight months pregnant at the time. Actor Robert Blake has also been charged with the murder of his wife, also in California. And in New York, attorneys for media mogul Martha Stewart are appealing her conviction on four counts stemming from her illegal sale of ImClone Systems stocks; sentencing is scheduled for June.

Those, of course, are just the A-list celebrity cases. Corporate corruption trials have become a genre all their own, with issues surrounding jury selection — and identification — currently earning nearly as many headlines as the actual defendants are.

Print reporters, broadcast journalists and producers of tabloid TV and newspapers have spent a lot of time in and around courthouses over the past year. As a result, more and more judges — often under a broad claim of defendants’ Sixth Amendment right to a fair trial — have attempted to limit the flow of information from their courtrooms.

Fred Graham, managing editor of Court TV, calls such overreactions by judges “Ito-phobia: the fear of looking as inept as Judge (Lance) Ito did in the O.J. case.”

“Of course, no judge will ever say, ‘I’m insecure and I may make some stupid decisions,’ ” said Graham, a Peabody Award-winner who serves on the steering committee of The Reporters Committee for Freedom of the Press. “It’s always about a fair trial, but a lot of their concerns are overblown.”

Some instances of secrecy are regulated by state law, such as the sexual assault cases of Bryant and Jackson. Most states limit the public release of information relating to minors and alleged victims of sexual assault. But the amount of information that has been withheld by each court — from sealed search warrants to the gagging of attorneys, closed pretrial hearings to near-total secrecy surrounding grand jury proceedings — is of particular concern, according to First Amendment advocates.

“Public confidence cannot long be maintained where important judicial decisions are being made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court’s decision sealed from the public view,” said attorney Steven Zansberg, quoting a 1979 Supreme Court decision (Gannett Co. v. DePasquale), in his arguments for media access to a pretrial hearing in the Bryant case.

Judges are armed with an array of options to maintain a fair trial without infringing upon the media’s First Amendment right of access to the proceedings. A change of venue can be ordered to find impartial jurors who haven’t been exposed to pretrial publicity. Jurors can be sequestered. Attorneys can be narrowly gagged regarding specific topics. And pool reporters and photographers can be allowed to cover the more intimate details of a case, when a gaggle of journalists could — based upon specific findings — disrupt certain proceedings.

According to retired Massachusetts Superior Court judge Hiller Zobel, who presided over the notorious murder case of British nanny Louise Woodward, not every option is a particularly viable one.

“Sequestering a jury is serious business,” Zobel said. “It’s like being incarcerated in a medium-security prison; they’re giving much more service than a regular jury.”

In an effort to assist the spread of information in high-interest trials, some judges have ordered their court administrators to create a publicly accessible Web site of all court filings and orders. Others will even go so far as to regularly meet with journalists in chambers following court proceedings to explain the day’s procedural events.

However, since the advent of 24-hour cable news shows — Fox News, CNN and MSNBC all have court-related programming today — fewer and fewer judges are willing to put in the effort required to make all members of the media happy.

“Unfortunately, the line between news and entertainment has increasingly blurred,” Graham said, “and we have to live with the fruit of our own misdeeds.”

Linda Deutsch, a special correspondent for the Los Angeles bureau of The Associated Press, said print reporters like herself see the issue somewhat differently.

“The problem is not getting lumped together with TV,” said Deutsch, who has covered the trials of Charles Manson, the LAPD officers involved in the Rodney King beatings, O.J. Simpson and Scott Peterson. “It’s very hard, especially when judges aren’t separating us from the commercial aspect of media.

“Once they’re given the right to regulate, they over-regulate,” Deutsch added. “I don’t see an end to it. It’s a matter of convincing them we’re not the enemy.”

“To work effectively, it is important that society’s criminal process ‘satisfy the appearance of fairness,’ which can best be provided by allowing people to observe such process.” — U.S. Supreme Court Chief Justice Warren Burger, writing for the majority in the 1980 media access case Richmond Newspapers v. Virginia

The empaneling of an anonymous jury is a rare occurrence in the vast majority of criminal and civil cases. Yet a growing number of judges presiding over high-profile trials are using the tactic, often for unjustifiable reasons, to shield jurors from outside pressure or future embarrassment.

On March 30, attorneys for Martha Stewart asked U.S. District Court Judge Miriam Goldman Cedarbaum to throw out Stewart’s conviction because one of the jurors had lied on his jury selection questionnaire. Contrary to what he told the court, Chappelle Hartridge — the first juror to speak publicly about Stewart’s conviction — had been sued three times and arrested on complaints of domestic abuse, according to a motion filed by Robert Morvillo, Stewart’s lead attorney. Morvillo, who argued that Hartridge w as biased against Stewart, said he would have struck him from the list of potential jurors if he had known all the facts. (The motion was dismissed by the court.)

Oddly enough, because Cedarbaum feared that potential jurors would not be candid about their biases toward Stewart if reporters were present during the open-court selection process — known as voir dire — she held the individual interview sessions in her private robing room. Journalists were not allowed to attend the process, for which only a transcript was released the following day with the names of prospective jurors redacted.

It was a trial that generated national public interest, and yet the media had no knowledge of who would be determining Stewart’s level of guilt. Coincidentally, at almost the same time in a courthouse in Los Angeles County, Calif., jury selection in Blake’s murder trial was conducted in secret one month earlier than originally scheduled to avoid the attention of the press. (Reporters found out one week into voir dire, and the proceedings became open.)

Seventeen news organizations fought Cedarbaum’s secrecy order, first appealing to her and then to the U.S. Court of Appeals in New York City (2nd Cir.). “Because this case is newsworthy, it is all the more important to protect the right of access in order to reassure the public that the law is being applied evenhandedly, and that justice is being done,” the media groups argued in court.

On Feb. 18, three weeks after the trial began, the appeals court agreed that the anonymous jury selection was both unwarranted and unjustified.

“The burden is heavy on those who seek to restrict access to the media, a vital means to open justice,” Judge Robert Katzmann wrote for the appellate court. “Here, the government has failed to overcome the presumption of openness. The mere fact of intense media coverage of a celebrity defendant, without further compelling justification, is simply not enough to justify closure.

“We find it difficult to conceive of a potential juror who would be willing to reveal a bias against the defendant in their presence, but not in the presence of reporters,” he added.

David Schulz, an attorney for The Associated Press who represented the media coalition, said the ruling — which came too late to have any affect on the Stewart trial — was an important precedent that strengthened the public’s right of access to jury selection. It also made better case law, Schulz said, than a 1998 ruling by the Second Circuit, which upheld a federal district court order that closed jury selection in the fraud trial of boxing promoter Don King.

Following the Second Circuit’s ruling, Cedarbaum chose to hold jurors’ names until after they reached a verdict, something Schulz called “less of a violation of the First Amendment.”

The empaneling of an anonymous jury is ordinarily reserved for unique high-profile trials. In granting such a motion, a judge may fear for the safety of jurors — often in cases involving organized crime figures or domestic and international terrorists — believe jury tampering is likely, or worry that outside pressure from the public may skew jurors’ decision-making ability.

Absent such information, the challenge for journalists becomes their ability to hold government accountable on behalf of the public it serves.

“Jury selection, in my mind, is possibly the most important part of a trial,” said Deutsch, of the AP. “It can be the beginning and end of a case. There is no excuse for closing a jury to the press.”

“Underlying the First Amendment right of access to criminal trials is the common understanding that ‘a major purpose of that Amendment was to protect the free discussion of governmental affairs.’ “ — Supreme Court ruling in the 1982 case Globe Newspaper Co. v. Superior Court.

Federal district court rulings vary regarding the degree to which juror information can be withheld from the public. Massachusetts federal courts have repeatedly ruled that the use of an anonymous jury is rarely permissible, while such courts in Connecticut prohibit the release of juror information.

Yet the U.S. Supreme Court, in its 1984 ruling in Press Enterprise Co. v. Superior Court, held that “the selection of jurors has presumptively been a public process.”

“Openness enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the criminal justice system,” the court said. “Public proceedings vindicate the concerns of the victims and the community in knowing that offenders are being brought to account for their criminal conduct by jurors fairly and openly selected.”

More to the point of expectations of privacy, Justice Harry Blackmun wrote in a footnote to his concurring opinion, “As to most of the information sought during voir dire, it is difficult to believe that when a prospective juror receives notice that he is called to serve, he has an expectation, either actual or reasonable, that what he says in court will be kept private. Despite the fact that a juror does not put himself voluntarily into the public eye, a trial is a public event.”

But what happens when a juror does thrust him or herself into the public eye?

In the high-profile corporate corruption trial of two former Tyco International executives, Judge Michael Obus of Supreme Court in Manhattan, N.Y., declared a mistrial one week after a pair of newspapers published the name of a juror during deliberations. On March 27, The New York Post and The Wall Street Journal reported that juror Ruth Jordan allegedly made an “OK” hand gesture to defense attorneys in open court.

Prior to the incident, it had been widely reported that one juror — who was identified only as “Juror No. 4” — was reportedly holding out to acquit former Tyco executives L. Dennis Kozlowski and Mark Swartz on all charges.

Although reporters knew the identities of all 12 jurors by observing selection, the Post and Journal were alone in choosing to break from journalistic convention by publishing the name of an empaneled juror. Both newspapers have said they did so because Jordan, 79, made herself part of the story by openly gesturing to the defense.

Attorneys for Kozlowski and Swartz immediately sought a mistrial, saying the increased publicity would prevent the jury from reaching a fair verdict. Obus rejected that argument, as well as repeated efforts by the defense, but relented just days later when Jordan reported that she received an anonymous phone call and an insulting letter at her home.

No date has yet been set for the retrial.

“I’m concerned about what effect this may have on jury selection in the future,” Obus said after declaring the mistrial, according to published reports. A major factor in his decision to declare a mistrial, Obus said, was “the notoriety that was brought to bear on one particular juror, whose name and background have been widely publicized in the media, lawfully, but in violation of the convention that is ordinarily observed and wisely observed.”

Fallout from the incident didn’t take long. The corruption trial of Tyco’s former general counsel Mark Belnick, also before Obus, was postponed due to the publicity surrounding the mistrial, and the judge presiding over the retrial of former Credit Suisse First Boston investment banker Frank Quattrone ordered the press not to reveal the names of any prospective or sitting juror.

Judge Richard Owen of U.S. District Court in Manhattan said he issued the April 13 order — essentially a prior restraint upon the press — to assuage jurors and assure them that their privacy would be maintained throughout the proceedings. A coalition of news media groups, again represented by AP lawyer David Schulz, immediately protested.

“Although this is a newsworthy prosecution that has attracted the intense interest of the public, we respectfully submit that press coverage of this case does not itself create such a clear and present danger to the administration of justice as to justify extraordinary injunctive relief,” the coalition wrote to the court.

The following day, Owen refused to withdraw his order.

“I don’t see that in an effort here to get this trial off the ground and . . . avoid threats or tampering or whatever, that this wasn’t a perfectly reasonable way to handle it under all of the circumstances that exist today, April 14, 2004, in the City of New York,” he said.

Although the constitutionality of the order is questionable, it’s not entirely unprecedented.

Following a hung jury in the November 2001 trial of Fred Neulander, a New Jersey rabbi accused of hiring a man to murder his wife, Superior Court Judge Linda Baxter ordered the press not to contact, interview or publish the names of any of the discharged jurors. The Philadelphia Inquirer challenged that order, appealing to the New Jersey Supreme Court.

While the state’s high court ruled that the ban on publishing jurors’ names was unconstitutional, it upheld the order regarding contacting and interviewing jurors. The court even expanded upon the lower-court order by prohibiting the press from talking to discharged jurors who initiate the communication. The court held that such an order was necessary to prevent the prosecution from having an unfair advantage in the retrial. (Jurors in the Tyco trial, a federal case, have given numerous interviews since Obus declared a mistrial; one juror even wrote a column for Time magazine.)

Neulander’s retrial was moved to another county due to publicity, and the former rabbi was found guilty of murder in November 2002. One month later, the Inquirer petitioned the U.S. Supreme Court to hear its case.

Several media groups, including the Reporters Committee, submitted a friend-of-the-court brief in January 2003 urging the court to accept it. Cert was denied, but the arguments in that brief still apply to many of today’s high-profile cases.

“Courts throughout the country have been chipping away at the public’s ability to learn what is happening in its criminal justice system by issuing orders that prevent journalists from interviewing — or even identifying — discharged jurors,” the media groups wrote.

“Such openness must apply to all aspects of the trial, including access to jurors once they have been discharged,” it later continued. “As the exclusive triers of fact, jurors are a crucial component of a criminal trial, vested with the authority to determine the guilt or innocence of the accused.

“As such, the public has an interest in knowing about the jurors who serve as representatives of their community.”