When a Baton Rouge defense lawyer asked for an anonymous jury in a cop-killer case this February, Louisiana trial Judge Michael R. Erwin took a day to think about it.
But his mind was probably already made up. There would be no jury picked behind closed doors or names kept secret in his court.
Erwin flat-out doesn’t believe in anonymous juries, no matter who’s asking.
“The [U.S.] Constitution says that the defendant is entitled to a public and speedy trial,” Erwin says. “If the government can’t do that, then they shouldn’t prosecute you.” Most judges would agree with Erwin. But nationwide, concerns over privacy have many of them in the awkward position of defining public.
“When I think of anonymous juries, I think of the litigants not knowing the names of the jurors,” says U.S. District Judge Susan R. Bolton of Phoenix. For a year and a half, Bolton has furnished jury rosters to parties but selected jurors by number and then sealed their names at trial’s end in both criminal and civil proceedings.
This is not just Bolton’s policy, but one that all District of Arizona judges have adopted. The clerk’s office says if someone requests the names, the chief judge may release them. But in more than 15 months, no such requests have been made, says Ronnie Honey, the chief deputy clerk.
From Judicial Conference On Down
Arizona federal judges began using the policy after the Judicial Conference of the United States, which sets policy for the nation’s federal courts, put “documents containing identifying information about jurors or potential jurors” on a 2003 list of “documents for which public access should not be provided.”
“What we’ve been doing is merely for protecting the jurors’ privacy, not for any concern that the jury would be tampered with,” Bolton says.
But many judges say they have no problem with some form of an anonymous jury, so long as prosecutors and defendants know the names.
“I’ve definitely heard from judges that they’re becoming more concerned about issues relating to juror privacy,” says Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts in Williamsburg, Va. Yet, Hannaford-Agor concedes, “I’m not seeing any consensus about the best way to protect juror privacy.”
Bolton and others cite a recent series of jury duty scams as one reason courts are more willing to remove juror identities. In one scam, identity thieves elicited private and financial information by randomly calling individuals and telling them they had missed jury duty.
Several court Web sites now warn that clerks of court will never solicit personal information from prospective jurors over the phone.
The scams may be new, but anonymous juries have been around since the trial of drug kingpin Leroy Barnes began in 1977. In upholding the anonymous jury, the New York City-based 2nd U.S. Circuit Court of Appeals dismissed concerns that jurors must remain public to take responsibility for their verdicts. This, the 2nd Circuit ruled, “is not the law and should not be.” U.S. v. Barnes, 604 F.2d 121 (1979).
“If a juror feels that he and his family may be subjected to violence or death at the hands of a defendant or his friends, how can his judgment be as free and impartial as the Constitution requires?” the panel asked rhetorically.
Other circuits and state courts have fallen in line. A Feb. 28 Tennessee Supreme Court decision, State v. Ivy, No. 01-12388, upheld the use of an anonymous jury in a death penalty case.
Many jurisdictions, including Tennessee, have adopted a two-pronged test, also developed by the 2nd Circuit. The test discourages impaneling anonymous juries unless a trial judge concludes first that there is a strong reason to believe the jury needs protection and takes “reasonable precaution” to minimize any prejudicial effects on the defendant and ensure the defendant’s fundamental rights are protected. U.S. v. Thomas, 757 F.2d 1359 (1985).
In addition, the ABA House of Delegates last year adopted 19 jury principles that embrace jury privacy and call for restraint in allowing anonymous juries, limiting them to cases involving “compelling circumstances, such as when the safety of the jurors is an issue or when there is a finding by the court that efforts are being made to intimidate or influence the jury’s decision.”
“These days, it’s pretty much a given in a mobster trial,” says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, based in Arlington, Va. Dalglish says there are two legitimate reasons for impaneling an anonymous jury: The defendant is so dangerous that courts fear for the physical safety of jurors, or the defendant is so “sleazy” that he would likely tamper with the jury.
“I would be hard-pressed to argue against an anonymous jury in those cases,” Dalglish says. “But those cases are few and far between.”
Secrecy Is Standard
Even if real threats are rare, judges in Los Angeles have decided that perceived threats are just as important. Since the mid-1990s, judges there have kept names of jurors in criminal cases secret from all but need-to-know court personnel and parties. Prosecutors and defense lawyers can see but can’t copy the jury roster and must return their copies to the court at the end of voir dire. And judges don’t have any data that show whether jury service is up because of increased emphasis on privacy.
But Los Angeles Superior Court Judge Philip K. Mautino believes jurors are more relaxed knowing their names are shielded from the public. Mautino led the charge for anonymous juries after his wife was compelled to reveal personal details before serving as a juror on a gang case in 1993.
Mautino says he surveyed some 2,500 jurors in his court about the policy and found only six who objected. He says jurors are confronted with the “most disturbing details about a defendant” and are “under intense focus of the defendant and the defendant’s associates.” That pressure, Mautino says, can leave jurors anxious and emotional. “That’s exactly the mental attitude you don’t want in jurors,” he says.
While many states have enacted statutes or court rules to shield jury information from public view, California has the most sweeping statute. Since 1996, names, addresses and telephone numbers of jurors for criminal proceedings have been sealed once the jurors’ verdict is recorded.
Los Angeles takes the statute further with its policy of selecting jurors by number, a practice that judges and media lawyers say is spreading throughout the state. In some courts, the only public reading of the names of jurors is during roll call. When numbers replace the roll, jurors’ identities are effectively secret unless they voluntarily come forward to talk to the media, lawyers or researchers.
“It’s almost standard practice in L.A. and more so across the state,” says longtime Los Angeles Superior Court Judge Jacqueline Connor.
Questions about Open Courts
Media lawyer Duffy Carolan of san francisco says she, too, is seeing more blanket anonymity pop up across the state. It’s a disturbing trend to her and other media lawyers. “The rationale behind the whole [open courts] process is that people can see the process at work,” Carolan says. Reporters who follow up with interviews of jurors are able to uncover issues that might not surface otherwise. That oversight ensures the basic fairness of the judicial process, she says.
Yet, according to officials in Los Angeles, most jurors come forward and make themselves available for post-verdict questions. “There have always been jurors more than willing to speak to the media,” says Gloria M. Gomez, director of jury services for the Los Angeles Superior Court.
The point, however, is that jurors should be able to choose whether to reveal their identities, Gomez says.
Mautino adds, “The only ones that the jurors should be accountable to are the other jurors. They’re not accountable to the press, the Crips [street gang] or the local communities.”
Identifying jurors may make them feel fear that they will face retaliation or be shunned by the public for an unpopular verdict, Mautino says.
That was an argument that Erwin heard when he denied a motion asking to seal the identities of jurors about to decide the fate of Shedran Williams, accused of killing an off-duty Baton Rouge police officer.
But Erwin says it’s his job to ensure that a fair and impartial jury is impaneled to hear the case. When he gets it wrong, he expects a reversal.
“I think the public trust should be in the fact that the judicial system operates openly and fairly,” Erwin says. “Once things become secret, then people are suspicious.”