LEGALLY SPEAKING

By John Browning



Jurors sacrifice a lot in order to serve as the cornerstone of our system of justice, not the least of which is their time away from work and family (all for the princely sum of $40.00 a day in Texas). But should jurors have to give up their privacy? A growing number of courts nationwide are confronting this issue, balancing the media’s desire for open courts with the personal safety and privacy rights of those who serve on juries.

The highest court in Massachusetts recently held that a trial judge was justified when he sealed the names of jurors in a gang-related murder case. While Massachusetts had long recognized the right of public access to judicial records, its Supreme Judicial Court found that Judge Gary Nickerson properly withheld the names and addresses of jurors from the news media after Manuel Silva was acquitted of murder in 2005. Both before and after the trial, there were shootings involving people connected with the case; in one, someone fired four bullets into a car belonging to a key prosecution witness shortly before she testified. Because the jurors feared gang reprisals, Judge Nickerson took the added step of shielding the jurors’ identities. While the high court approved—noting that jurors, unlike the judge and the attorneys, are unwilling participants—newspapers expressed concern that the justice system would become less transparent.

Florida recently confronted this question as well. Fearing a media circus in the 2005 trial of Joseph Smith for the kidnap, rape and murder of an 11 year-old girl (a case that drew national attention when police seeking clues aired video of the girl’s abduction from a local car wash), trial judge Andrew Owens barred the release of names and addresses of potential jurors; prohibited the media from publishing such information; barred the media from photographing or videotaping the faces of prospective or related jurors; and required that prospective jurors and those ultimately selected be identified only by an assigned number. Local newspapers and television stations protested, claiming it violated First Amendment rights. While the appellate court conceded that such protections were out once the trial was concluded, it upheld most of the judge’s ban. Citing the publicity from sensationalized trials like the O.J. Simpson case, the court observed that “the jurors did not come to the courthouse to be celebrity guests on a reality T.V. show. Because they are adults with drivers’ licenses, they received an order of court compelling them to appear. They are obeying the law and performing a valuable public service that many others shirk.” As a result, the trial judge was justified in preserving the jury’s anonymity.

In high profile cases, judges differ in their approach to balancing juror privacy with the openness that many defense attorneys argue helps guarantee a fair trial. During the O.J. Simpson trial, Judge Lance Ito threatened to pull all cameras out of the courtroom after a picture of an alternate juror’s face was broadcast, but he ultimately relented. In the Martha Stewart trial, federal Judge Miriam Cedarbaum banned reporters from jury selection and further shielded jurors from the spotlight, only to be told later by an appeals court that the media should have been given greater access. During the Tyco corporate corruption trial, a New York judge declared a mistrial after two newspapers published the name of a juror, derisively called him a “batty blueblood,” and claimed that he had made what some interpreted as an “o.k.” signal to defense lawyers. The juror later reported receiving death threats.

While the U.S. Constitution doesn’t directly address the issue of juror privacy, a 1968 federal law specifically permits judges to keep jurors anonymous “where the interests of justice so require.” Members of the media and defense attorneys alike cite the importance of the First Amendment’s free press guarantee as well as the Sixth Amendment’s guarantee of a public trial as factors that outweigh the safety and privacy concerns. Of course, it doesn’t always take an organized crime trial or high profile corruption case to make judges more sensitive to a juror’s privacy. Ohio State Judge Joseph Clark cites the example of a distraught prospective juror who, during jury selection, revealed that she had been raped by her stepfather—a fact she had previously told no one, not even her husband. From that point on, Judge Clark made it a point not to disclose jurors’ names; as he put it, when jurors are summoned to court, “we owe them the highest standard of care.”

Under certain circumstances, that duty extends beyond the trial itself. For jurors who deliberate in particularly disturbing cases (such as gruesome murders), courts in many states offer counseling. In Wisconsin, for example, the jurors in the trial of serial killer Jeffrey Dahmer received post-verdict counseling. In Seattle, the King County district attorney’s office pays therapists to meet with jurors. Here in Texas, a bill has been introduced in the legislature that would provide post-trial counseling to jurors who deliberate in cases that involve graphic testimony. The bill is the brainchild of Sharon Cave, a mother whose daughter was killed and dismembered. Bothered by the fact that jurors in the murder trial had to view grisly photos of the victim’s dismembered body—“I saw it weighing on them,” she says—Ms. Cave pushed her hometown state representative to do something. The resulting legislation would codify the practice of making victims’ counselors from the district attorney’s office available to jurors. While this already happens on an informal basis in Travis County and many other courts, many counties lack the money or staff to devote for such services.

Our legal system could not function without the jury. Whether we’re protecting their physical well-being, their privacy, or simply their emotional health after a grueling case, jurors deserve our best efforts.

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