Missouri, Ohio high courts affirm presumptive right of access
From the Winter 2003 issue of The News Media & The Law, page 19.
By Sara Thacker
After serving 16 years of a life sentence, Ellen Reasonover was set free in 1999 when an appellate court in Missouri reversed her conviction because the jury did not know that witnesses who testified against her had cut deals with prosecuting attorneys.
The case sparked national attention, including the attention of a talk show that requested the names of the jurors for interviews. In response, the Missouri Supreme Court considered instituting a new rule to protect juror confidentiality.
Missouri is not the only place where courts have considered limiting access to juror information. Other states are reexamining the press’ ability to contact and interview jurors. Some states have gone so far as to enact rules providing for juror anonymity, placing privacy rights above the public’s right to know.
In Missouri and Ohio, however, attempts to keep jurors’ identities hidden from public view failed.
The Missouri Supreme Court did an about face when it vacated its order that would have sealed jury lists and jury questionnaires in criminal cases.
Before the original rule that would have closed juror lists to the press and public became effective on Dec. 11, 2002, media representatives from around Missouri went to the state’s high court to make their case. Representatives from the St. Louis Post-Dispatch, the Springfield News-Leader, The Kansas City Star, and the Missouri Press Association met with six of the seven supreme court justices to propose changes to the rule that would provide for public access.
After the meeting, the supreme court vacated its original rule. Instead of making jury lists in criminal cases presumptively closed to the public, the court revised the rule to ensure that jury lists would be presumptively open.
“The Missouri court’s decision puts it in the forefront of states resisting efforts to prevent access to juror lists,” said Jean Maneke, attorney for the Missouri Press Association.
Under the new rule effective Jan.1, jury lists are closed only when specific facts demonstrate a “compelling reason” for such closure.
“The original rule was going to go against current U.S. Supreme Court precedent and against the presumption that court records be open,” said Doug Crews, executive director of the Missouri Press Association.
As the U.S. Supreme Court has recognized: “Knowledge of the juror identities allows the public to verify the impartiality of key participants in the administration of justice and thereby ensures fairness.” (Globe Newspaper Co. v. Superior Court)
While Missouri changed its position on jury lists, media representatives did not persuade the court to open jury questionnaires.
Instead, jury questionnaires in criminal cases are accessible only to the court and the parties. After a criminal trial ends, the jury questionnaires are retained under seal. Under the rule, the information provided by jurors is “confidential and shall not be disclosed except on application to the trial court and a showing of good cause.”
The Missouri Supreme Court originally adopted the closure rule as a result of the Reasonover case after the Montel Williams’ talk show requested the names of jurors for interviews. The Missouri Supreme Court first requested that a standing committee consisting of circuit judges, prosecutors, and defense attorneys examine the issue and propose a rule.
When the rule was originally drafted, “no one represented the media or the public, so the committee hadn’t had the opportunity to consider our views,” said Post-Dispatch editor Ellen Soeteber.
As a result, the First Amendment rights of the press were not in the forefront with the committee.
“There was more focus on the problems jurors might face,” said Judge Patrick Robb, who served on the committee.
“The committee’s intent was to create a comfort level for citizens who were asked to do jury service that their information would be kept confidential in general,” said Judge Richard Callahan, a former prosecutor who also served on the committee.
“We were concerned that jurors’ names would be put in the press and subject them to becoming public figures,” Robb said. Jurors may start thinking about how their decision “will play in the press . . . calculating how it will play for them personally.”
Robb acknowledged, however, that the committee had no evidence of jurors becoming public figures as a result of media coverage in Missouri. The committee, he said, was taking “preventative action.”
When media representatives met with justices to discuss the original closure rule, they “took a balanced approach by acknowledging legitimate concerns like privacy,” said Post-Dispatch attorney Joseph Martineau. “But in the end these concerns were outweighed by more important interests.”
The ability of the media to contact and interview jurors, “helps the public understand the administration of justice,” said Robert Leger, editorial page editor for the News-Leader and president of the Society of Professional Journalists.
If the original rule closing jury lists had not been vacated, the media would have been “restricted to the views of the prosecutor and defense attorney as to why a particular verdict was rendered,” Leger said.
“When you hear how the jury approached it, [the verdict] makes perfect sense,” Soeteber explained.
Right of Access in Ohio
Missouri’s new rule opening jury lists is consistent with a recent Ohio Supreme Court decision in which the Akron Beacon Journal sought access to jury lists and questionnaires.
While the Ohio Supreme Court held on Dec. 24, 2002, that juror lists and responses to juror questionnaires are not public records subject to disclosure by statute, it did find that the press has a right of access to such information under the First Amendment. (State ex rel. Beacon Journal Publishing Co. v. Bond)
The case arose when the Beacon Journal sought access to the jury lists and questionnaires during the trial of Denny Ross, who was charged with aggravated murder, murder, rape, kidnapping, tampering with evidence, and abuse of a corpse.
The trial judge denied the newspaper’s request, reasoning that “the extraordinary level of pretrial publicity requires the protection of the privacy of the jurors and is necessary to assure [sic] the independence and integrity of the jury and to avoid complete sequestration during the trial.”
On appeal, the Ohio Supreme Court recognized that the process of questioning prospective jurors is presumptively open to the public under the First Amendment.
“Because the purpose behind juror questionnaires is merely to expedite the examination of prospective jurors, it follows that such questionnaires are part of the [jury selection] process. . . . and thus subject to a presumption of openness,” the court ruled.
Even though jury questionnaires are presumptively open, the court explained that such a presumption could be rebutted “by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” (Press-Enterprise Co. v. Superior Court)
Such “strict scrutiny” analysis requires that the trial court articulate specific findings as to why closure is necessary and that the court consider alternatives to closure.
While the trial court sealed juror questionnaires to protect their privacy, the supreme court found “that an individualized examination of each prospective juror’s circumstances is appropriate in considering the privacy interests of such jurors.”
Because the trial judge failed to make specific individualized findings or consider alternatives to sealing all 290 questionnaires, the supreme court ruled that the newspaper had a right of access to juror questionnaires.
If there is information that jurors want to keep confidential on questionnaires, trial judges should inform prospective jurors of their right to an in-camera hearing regarding answers provided to any written questions, Chief Justice Thomas Moyer explained in the court’s opinion.
In addition, trial courts should redact questions that are not properly part of the jury selection process contributing to an impartial jury. Questions that elicit information such as Social Security numbers, telephone numbers and drivers license numbers should be redacted before they are disclosed.
The supreme court also rejected the trial court’s finding that the defendant’s right to a fair trial required sealing jury questionnaires.
Again, the supreme court found that the record was void of specific findings of prejudice to the defendant or considerations of less restrictive alternatives by the trial judge. Here, there was no evidence that publicity would inform potential jurors of evidence implicating the defendant that would be inadmissible at the actual trial. Information from juror questionnaires “is not only known to the prospective jurors, but was provided by them,” Moyer wrote.
As for jury lists, which include the names and addresses of individual jurors, the supreme court held that such information also is part of the jury selection process that is presumptively open under the First Amendment.
The court recognized a long history of access to jurors’ identities and found that disclosure of such information “plays a significant role in the functioning and enhancement of the judicial process.”
Access to juror identities may show if “jurors were improperly selected from a narrow social group or a particular organization,” the court explained.
The availability of juror identities can help journalists report on juror biases and confusion. It also can lead to revelations about jurors’ response to judicial proceedings.
Reporters use jurors’ identities to interview them about their verdict and “may serve to uncover juror misconduct or provide insight on systemwide problems that may be the subject of judicial or legislative reform,” the court said.
In fact, potential juror misconduct led the trial judge to declare a mistrial in the case against Denny Ross when the jury foreman informed the judge that a juror supported a verdict only because he was in a hurry to get home. After the mistrial, the court discovered that the discharged jury had deliberated and reached a verdict to acquit Ross on three of the charges.
“In any of the high-profile cases, when the cases are over it is important to know what jurors were thinking and how they reached their verdict,” said Karen Lefton, counsel for the Beacon Journal. “It gives readers and the public comfort that the justice system is working.”