The growing trend toward anonymous juries

By Ashley Gauthier

Journalists have historically considered the jurors part of the story when covering court cases. Most would agree interviewing jurors enhances the coverage of verdicts because their perspective adds insight to the case. Similarly, part of the story can turn on the jurors themselves. In the O.J. Simpson murder and Rodney King beating cases, for example, the racial composition of the jury was itself the subject of controversy, with some arguing that it even determined the outcome of the case.

There is a creeping trend by courts, however, to empanel "anonymous juries," which is part of a larger trend toward secrecy in the courts. Court secrecy hinders a journalist's ability to collect all the facts and can also adversely affect the fairness of the judicial system. When not subject to public scrutiny, courts, jurors or litigants could more easily engage in improprieties.

An Example

Linda Lightfoot, editor of The Advocate in Baton Rouge, La., has struggled recently with the effect of juror anonymity in the corruption trial of former governor Edwin Edwards. She summed up the problem nicely: "History loses."

Edwards, a four-term governor, was arguably the most influential political figure in state history since Huey Long, but he has also faced numerous charges of corruption.

One case, tried in the Spring of 2000, involved charges that Edwards accepted bribes in the riverboat gambling licensing process. Another trial, in September 2000, involved alleged corruption in the Insurance Department. Anonymous juries convicted Edwards in the first trial and acquitted him in the second.

In an attempt to better understand the verdicts and keep an accurate records of state history, Lightfoot would like the names of the jurors. She said, "part of the process is lost when the press cannot report who made the decision or how the decision was made." She added, "even if the juror doesn't want to speak [to the press] now, they may want to talk in four years."

Edwards also objected to the anonymous juries used in the trials: "There are serious overtures occurring, insidiously, gradually and in many areas somewhat unnoticed in the criminal justice system," he told reporters.

Even though Edwards was acquitted of corruption charges involving the Insurance Department, he said the jurors anonymity hurt the defendants' case.

"This business of anonymous juries, where the press, the public and the defendants do not know who the people sitting in the jury box are, is wrong. It is contrary to the concept of being tried by your peers in a community where you know the jurors and they know you," he said.

History of anonymous juries

Anonymous juries are a relatively new phenomenon. The first fully anonymous jury empaneled in the United States was in the 1977 trial of drug kingpin Leroy Barnes in New York City. The court believed Barnes presented an unusually dangerous risk to the jurors and it took the extraordinary measure of hiding their identities. (United States v. Barnes)

Thereafter, anonymous juries were used sparsely, primarily in criminal cases when the defendant was notoriously dangerous and the court reasonably believed a fair trial could not be held without protecting the jurors' identities. In many cases, the defendant had previously tried to bribe, intimidate, or harm jurors, actions that justified juror anonymity. Through the mid-1980s, the use of anonymous juries was concentrated in New York federal courts and was only used in exceptional circumstances. Even Washington, D.C., once regarded as one of America's most dangerous cities, refrained from empaneling anonymous juries until 1990, when it used one for the trial of druglord Rayful Edmond. The court considered Edmond so dangerous that his trial took place in a courtroom protected by bulletproof glass.

By the mid-1990s, however, some courts used anonymous juries regularly. Two California judges, for example, decided to empanel anonymous juries in all criminal cases and continued until an appellate court ordered an end to the practice. Recently, a county court in Ohio empaneled anonymous juries in all cases, civil and criminal, although the policy is currently under review by the Ohio Supreme Court. (Ohio v. Hill)

At the other end of the spectrum, some states, like Massachusetts and New Jersey, have questioned and limited the use of anonymous juries. The Massachusetts high court concluded that an anonymous jury is constitutionally valid only if it is absolutely necessary to protect jurors from harm. (Massachusetts v. Anguilo)

In most federal courts, however, anonymous juries are considered one of the many tools the court can employ to control a trial and the participants.

In the first of Edwards' corruption trials in 2000, Judge Frank Polozola not only empaneled an anonymous jury, he also sealed his order containing the reasons for an anonymous jury. Media organizations, including The Advocate, challenged the judge's sealing of the orders. Lightfoot will pursue the newspaper's interest to obtain the jurors' names because "these are the people who are deciding Louisiana history." Polozola eventually released the document that explained he made the jury anonymous because of accusation of jury tampering in a previous, but unspecified, Edwards criminal trial.

Defining "anonymous jury"

To fully realize the ramifications of a court's declaration of an anonymous jury, the concept should be put into practical terms. Usually, the court will withhold the names, addresses and phone numbers of the jurors. But courts may also withhold other identifying factors, such as occupation, ethnicity, religion, or the responses to juror questionnaires. Sometimes the juror names are given to the court, but not to the media or even the parties in the case. Sometimes the parties' lawyers are given access to juror information but it is withheld from the public record and the media.

A court in California ruled that a jury was "not anonymous" when the juror's names and other information were available to the parties, but excluded from the public record. Under such circumstances, the defendant could conduct an effective voir dire of potential jurors, but the press could not access any juror information. (California v. Goodwin)

James Swanson, one of the media's attorneys in the Edwards trials, argued that juror information is just as important to the press as it is to the defendants.

"Discussion of juror bias is the portion of juror selection that is of greatest interest to the press and public," he said. In the media's brief seeking juror information, Swanson quoted cases that describe why access is so important:

"It is possible, for example, that suspicions might arise in a particular trial . . . that jurors were selected from only a narrow social group, or from persons with certain political affiliations, or from persons associated with organized crime groups. It would be more difficult to inquire into such matters, and those suspicions would seem in any event more real to the public, if names and addresses were kept secret." (In re Globe Newspaper)

The Failure of Anonymous Juries

The trial of mobster John Gotti best illustrates how the press can perform its function as a watchdog for the public interest. In Gotti's trial, the judge empaneled an anonymous jury because it feared Gotti or his associates might threaten, intimidate, or otherwise tamper with the composition of the jury. Unbeknownst to the court, the prosecutors or the press, one of the jurors was George Pape, a man with ties to an Irish-American organized crime group. According to legal scholars who have examined the trial, Pape contacted Gotti's attorneys, accepted a bribe, and arranged for Gotti's acquittal. If the jurors had not been anonymous, the prosecutors or the press would have had the opportunity to investigate the jurors' backgrounds to prevent such corruption of the trial. (Abramovsky & Edelstein)

Other notorious mobsters such as Al Capone and Lucky Luciano were successfully tried without anonymous juries, and in retrospect, it is possible that their convictions are, at least in part, attributable to the fact that court openness prevented bribery or jury tampering.

Other arguments against anonymous juries involve the rights of the defendant. Some argue that juror anonymity implies that the defendant is unusually dangerous, which in turn impairs the presumption of innocence. However, that argument is also used to support the notion that all juries should be anonymous. Defense lawyers also argue that withholding juror information of any type impairs their ability to perform a thorough voir dire.

In smaller communities, it is claimed, someone may recognize a juror, invalidating their anonymity. Lightfoot said that during the Edwards trial relating to corruption of the Insurance Department, some people recognized a member of the jury who was a prominent local college professor.

Finally, the public interest in free and open courts militates against anonymous juries. Once a part of the judicial process is closed, it becomes a slippery slope toward a judicial process cloaked in secrecy. If courts can permit juror anonymity over concerns of safety, will some judges permit fearful witnesses to testify anonymously? Such a rule would do away with the defendant's right to face the accuser and would make it impossible for a jury to evaluate the witness' credibility. Would similar secrecy concerns extend to anonymous judges, leading to a judicial system like that in Peru, where judges are not only anonymous but hooded due to safety concerns over drug trafficking and guerrilla warfare? Anonymity for judges would eviscerate the notion of judicial accountability, allowing for corruption or politically motivated convictions.

Why anonymous juries are used

The primary arguments in favor of anonymous juries are to avoid jury tampering, protect juror safety and alleviate juror stress. However, courts also consider anonymous juries due to media interest in a case.

The Supreme Court of Delaware, for example, upheld the use of an anonymous jury in a case where neither juror safety nor jury tampering was considered to be a severe concern. Rather, the court's primary motivation was to avoid media coverage of the jurors. The court was distressed because it felt that the media was too intrusive and that the impact on the jurors' privacy would somehow affect the deliberation process. (Gannett Co. v. Delaware)

Courts have also argued, in upholding anonymous juries, that extensive media coverage of controversial cases puts jurors at risk of harassment by other members of the public. For this reason, anonymous juries were used in the trials of the police officers who allegedly beat Rodney King, the people who beat Reginald Denny, the World Trade Center bombers, and the Branch Davidians. The courts feared that citizens who opposed the jury verdict would threaten or harass jurors if their identities were not concealed.

A similar concern was cited by Judge Clement in one of Gov. Edwards' corruption trials. In her order granting the government's motion for an anonymous jury, Clement stated that one of the reasons for an anonymous jury was that "certain members of the media aggressively followed, identified and contacted jurors in violation of the anonymous jury order issued by Judge Polozola" in the prior Edwards trial. Clement thought that the media's conduct might expose jurors to harassment.

Clement went a step further and added, "Any attempts by the media or others to interfere with [juror anonymity] will not be tolerated." In one order, Clement mandated, "the media is ordered not to circumvent this Court's ruling preserving the jury's anonymity."

An attorney wrote a letter to the judge on behalf of the media asking for clarification of the judge's orders, saying "until Your Honor issues a clarification, the News Media will assume that Your Honor did not intend this language to impose either an unconstitutional prior restraint on publication or an unlawful restriction on newsgathering activity."

The judge responded to the letter, stating that her orders were intended to prohibit the news media from identifying any of the jurors, regardless of how that information is obtained. The media then appealed the orders as an unconstitutional prior restraint. That appeal was pending as of October 2000.

A little irony

The orders in the Edwards case exemplify the trend toward secrecy in the courts. The jurors were anonymous, the media was ordered not to interfere with anonymity, and the whole trial was cloaked in secrecy.

One of the jurors in the second Edwards trial involving alleged corruption of the Insurance Department was identified and interviewed by The Advocate after the trial. The juror, who was not identified by the newspaper, said that Edwards was acquitted because the prosecutors failed to bring certain key witnesses to testify, leaving the jurors with too many unanswered questions.

"A lot of material that we needed was not there, was not shared with us," she said.

Cases cited:

California v. Goodwin, 69 Cal. Rptr. 2d 576 (Cal. App. 1997)

Gannett Co. v. Delaware, 571 A.2d 735 (Del. 1990)

In re Express News Corp., 695 F.2d 807 (5th Cir. 1982)

In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990)

Journal Pub. Co. v. Mechem, 801 F.2d 1233 (10th Cir. 1986)

Massachusetts v. Angiulo, 615 N.E.2d 155 (Mass. 1993)

United States v. Barnes, 604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907 (1980)

United States v. Harrelson, 713 F.2d 1114 (5th Cir. 1983)

United States v. Sherman, 581 F.2d 1358 (9th Cir. 1978)