F. Fifth Circuit Upholds Publication of Anonymous Jurors’ Names

     The use of anonymous juries in ordinary criminal and civil trials escalated dramatically in 2001.  In some cases, judges ordered secret juries for no greater justification than a desire to “protect” jurors from being contacted by the media.  A ruling by the U.S. Court of Appeals for the Fifth Circuit, however, made it clear that news outlets are protected by the First Amendment if they print the names of jurors, provided the names are obtained from independent sources.

     The U.S. Supreme Court has held that the presumptive First Amendment right of public access to judicial proceedings found in Richmond Newspapers, Inc. v. Virginia applies with equal force to jury selection.  Press-Enterprise v. Superior Court, 464 U.S. 501 (1984) (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980)).  The Court held that “the process of selection of jurors has presumptively been a public process” and noted the strong historical roots underlying this presumption of openness for jury selection, which dates back to the 16th century.

     Numerous state and federal courts, however, recently have allowed the public to watch jury selection, but have gone out of their way to create systems to mask the identity of those serving on juries. 

     The first fully anonymous jury empaneled in the United States was in the 1977 federal trial of drug kingpin Leroy Barnes in New York City.  The court believed Mr. Barnes presented an unusually dangerous risk to the jurors and it took the extraordinary measure of hiding their identities.  United States v. Barnes, 604 F.2d 121 (2nd Cir. 1979), cert. denied, 446 U.S. 907 (1980). 

     Anonymous juries were used sparsely in the 1980s, 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.  Through the mid-1980s, the use of anonymous juries was concentrated in New York federal courts and was only used in exceptional circumstances.

     In recent years, however, federal courts have begun to consider anonymous juries as just one of the many tools the court can employ to control a trial and its participants.  If an anonymous jury is used, the court usually 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 to 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.

     The media are not alone in their objections to anonymous juries.  Some defense attorneys 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 (competency exam).

     Some judges have upheld anonymous juries because they concluded that extensive media coverage of controversial cases puts jurors at risk of harassment by 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 1993 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.

     In the first of former Louisiana governor Edwin Edwards’s corruption trials in 2000, Judge Frank Polozola not only empaneled an anonymous jury, but also sealed his order containing the reasons for the anonymous jury.  Media organizations challenged the judge’s sealing of the order.  Judge Polozola eventually released the document, which cited an accusation of jury tampering in a previous, but unspecified, Edwards criminal trial (there have been several).

     James Swanson, one of the Louisiana 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.

     That argument did not sway Judge Edith Clement, who issued an order granting the government’s motion for an anonymous jury in another corruption trial of the former Louisiana governor and a state insurance commissioner, James Brown.  Judge 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.  Judge Clement thought the media’s conduct might expose jurors to harassment from the public.

     Judge Clement went a step further and added: “Any attempts by the media or others to interfere with [juror anonymity] will not be tolerated.”  Judge Clement ordered the media “not to circumvent this Court’s ruling preserving the jury’s anonymity.”

     An attorney wrote to the judge on behalf of the media asking for clarification of the judge’s orders, saying that “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 that her orders were intended to prohibit the news media from identifying any of the jurors, regardless of how that information was obtained.  The media then appealed, calling the orders an unconstitutional prior restraint.  The U.S. Court of Appeals for the Fifth Circuit upheld the judge’s order keeping jurors anonymous, but also said that stopping journalists from reporting the names if they obtained them independently was unconstitutional.  United States v. Brown, 250 F.3d 907 (5th Cir. 2001).  Mr. Brown was sentenced to six months in prison and a $50,000 fine for lying to an FBI agent about the liquidation of a failed insurance company.  Former governor Edwards and Shreveport lawyer Ronald Weems were acquitted in the case.

     A number of other recent decisions from around the country reflect judges’ desires to protect the privacy of jurors.

     The Michigan Court of Appeals ruled in an unpublished opinion that a judge’s order prohibiting journalists from photographing or filming jurors as they left a courtroom was a constitutional “time, place, or manner” restriction.  The court noted that jurors were given the option of staying to speak with the press or being escorted out of the building.  Every juror chose to leave with the escort.

     Several news groups argued that the order was overbroad and unconstitutional, but the appellate court ruled that the judge did not prohibit reporters from contacting jurors once they were home.  The court found that the order created a limited “waiting period” and not a permanent ban on contact.  The court held that privacy concerns justified such a delay.  People v. Ackerman, 2001 WL 732062, 29 Media L. Rep. (BNA) 2113 (Mich. App. 2001).

     In New Jersey, Camden County Superior Court Judge Linda Baxter issued an order in July 2001 that barred journalists from publishing the identity of any juror or “descriptions that would reasonably identify any juror” in the murder trial of Rabbi Fred Neulander.  The case -- Rabbi Neulander is accused of arranging the murder of his wife -- has received widespread publicity.  Judge Baxter’s order also barred the press from contacting or attempting to interview any juror or potential juror.

     The Philadelphia Inquirer and the Associated Press challenged the order, arguing that it was an unconstitutional prior restraint.  Judge Baxter refused to vacate the order on Aug. 31.  She believed that potential jurors would not be candid in their responses during jury selection if they thought their statements might be reported.  The judge said the potential lack of candor would violate the defendant’s right to a fair trial.  An appeal is pending.

     The Utah Judicial Council approved a new rule on Aug. 23, 2001 that would allow judges to withhold jurors’ names from the news media for five days after the end of a trial.  The council had been considering the rule for a year and, despite concerns that it would hinder newsgathering, the measure was passed to protect juror privacy.  The Associated Press reported that there had been no known instances of jurors being harassed in Utah, but one council member said the rule was needed to prevent any potential trouble.  UT R.J. Admin. Rule 4-202.02.

     U.S. District Judge Filemon Vela issued an order in a product liability trial against Firestone that bars the media from contacting jurors unless a written request is submitted to the judge’s office for approval.  The case, filed in federal court in Brownsville, Tex., was settled while the jury was deliberating.  Even though the case had ended, jurors contacted by the Monitor of McAllen, Tex., would not speak to the press, telling the newspaper it would violate the Aug. 29 court order.

     The Monitor and the Associated Press filed a motion challenging the order, claiming it was an unconstitutional prior restraint.  Judge Vela made an oral ruling on Aug. 31 denying the motion.  The Associated Press reported that attorneys -- and presumably, the public -- were interested in knowing what the jurors thought of the case.

-- Lucy Dalglish and Ashley Gauthier