From the Winter 2002 issue of The News Media & The Law, page 41.
By Ashley Gauthier
The case of Rabbi Fred Neulander, a man facing murder charges for allegedly hiring a private investigator to kill his wife, stands as one of the most prominent trials in New Jersey in recent years.
And the case gathered even more intrigue in November after a judge declared a mistrial in Neulander’s first trial after a jury deadlocked 9-3 in favor of convicting the rabbi.
Why the deadlock? The public has learned little because of a court order barring the press from either identifying jury members or contacting them, even after Camden County Superior Court Judge Linda Baxter declared the mistrial.
Complicating matters more is the fact that the Philadelphia Inquirer and Philadephia magazine both violated the order. The Inquirer revealed the name of a juror in questioning her residency. A reporter for Philadelphia faces contempt charges for contacting a jury member.
Media law experts are concerned that the Neulander case is an indication that courts may try to rationalize bans on juror contact or information, chipping away further at First Amendment press rights.
Baxter entered the order in July 2001, forbidding news reporters from identifying or contacting any juror. The judge refused to reconsider the order when the Philadelphia Inquirer and the Associated Press objected. Baxter refused to change the order a second time after she declared the mistrial.
An appeal to the state Appellate Division did not succeed.
During oral arguments, the appellate court questioned why it should bother to grant relief to news organizations when at least one paper flouted the trial court’s order.
The Inquirer violated the order, revealing the name of juror Colleen Darnell, whose residence was in question. New Jersey law requires jurors to be a “resident of the county in which summoned,” but the paper reported that it was unclear whether Darnell was a resident of New Jersey or of Pennsylvania.
The Inquirer also interviewed at least one juror who “spoke on the condition of anonymity” and reported on why the jury was unable to come to a unanimous verdict. According to the Inquirer, the juror said: “We did everything we could possibly do. We all heard the same story, but we all saw it a totally different way.”
The judges were disturbed by the two publications’ failure to respect the order and rely on the proper appeals procedure.
And now, the press case awaits a hearing before the New Jersey Supreme Court.
If the New Jersey Supreme Court affirms the restrictions, it will continue a trend that chips away at journalists’ ability to gather news. A three-judge panel of the U.S. Court of Appeals in New Orleans (5th Cir.) recently upheld a trial court order that barred the press from directly contacting jurors in a Firestone tire lawsuit, and the trial judge in the Andrea Pia Yates murder trial issued a similar order. (See News Media & the Law, Fall 2001) These decisions have yet to be overturned.
Since then, Carol Saline, a reporter from Philadelphia magazine, has been held in contempt for violating the order. A juror claimed that Saline approached him while the trial was pending and asked him whether the jurors would give interviews when the trial was over. A sentencing hearing has not yet been set, but Saline could face six months in jail and up to a $1,000 fine.
The Inquirer also faces a hearing on contempt. But the Feb. 25 hearing concerns only the publication of a juror’s name, not the fact that the newspaper interviewed a juror.
Katherine Hatton, an attorney for the Inquirer, said, “We do not believe that contempt charge can be sustained. Courts consistently have ruled that all information revealed in the courtroom is public. The jurors’ names were put on the record in court. For that reason, we have appealed the judge’s order, and for the same reason, we believe there can be no finding of contempt for putting a juror’s name in the newspaper after the trial is over.”
Media law experts are concerned about the trend by trial judges to bar juror contact.
Robert O’Neil, a founder of the Thomas Jefferson Center for Free Expression and a law professor at the University of Virginia, noted that the increased willingness of trial judges to impose restrictions “reflects the increased visibility of such cases.” He thinks that the real battleground of the future will be in trial courts, where lawyers for the press will have to persuade judges that restrictions are not necessary.
Judges often cite harassment of jurors as a justification for restrictions on the press, even where there is no evidence of harassment. O’Neil says the perception of harassment comes from a “generalized sense that newsgathering techniques are more intrusive than they used to be, and unless jurors are protected, there is a risk.”
Orders barring juror contact are questionable because they purport to restrict the activities of people who are not parties to the lawsuit. For example, in the Neulander case, the judge has attempted to bar all members of the press from ever contacting any juror, regardless of whether the reporter lived in New Jersey, attended the trial or even heard of her order.
George Freeman, counsel for the New York Times, noted that courts “cannot simply bind the world.”
“Even beyond the First Amendment and gag order issues involved in the case, the primary question is on what basis a judge can issue an order binding all media,” Freeman said. “The law is clear that a judge cannot issue an order binding people other than the parties, courtroom personnel and those acting in concert with them. So, an order binding all media, particularly those media who have not entered an appearance in the case and with respect to their behavior outside the courtroom, is simply not valid from a jurisdictional point of view.”