2 Courts Apply Same Test, Get Different Results


By Douglas Lee Special to the First Amendment Center Online

Experience and logic, it appears, also are in the eyes of the beholder.

No other explanation exists for the diametrically opposed holdings in Pennsylvania v. Long and U.S. v. Black, in which one court recognized a First Amendment right of access to jurors’ names and another did not. While both courts applied the “experience and logic” test required by the U.S. Supreme Court, their applications could not have been more different.

The right to know jurors’ names is the latest battle in the fight to maintain open courts. That right — once presumed except in cases in which jurors reasonably feared for their safety — is now under attack from judges who seek to exercise as much control as possible over news coverage of high-profile trials. The risk of this attack is twofold. First, the additional secrecy eats away at the culture of openness that long has been a hallmark of the court system. Second, the justifications for this secrecy — which apply equally well (if not better) to witnesses and other trial participants — threaten to infect the entire system.

In Black, prosecutors in Chicago are attempting to prove that Conrad Black and three other defendants enriched themselves while defrauding shareholders of Hollinger International. The case has drawn widespread national and international attention, with court officials having issued press credentials to more than 400 journalists representing close to 60 news organizations.

During jury selection, each potential juror who was questioned gave his or her name in open court. Once the jury was chosen, however, U.S. District Judge Amy J. St. Eve refused to provide the jurors’ names and addresses to anyone but the parties in the case. The Chicago Tribune challenged this refusal, citing the U.S. Supreme Court’s 1984 holding in Press-Enterprise Co. v. Superior Court that the First Amendment entitles the public and the media to open jury selection proceedings.

While acknowledging the holding in Press-Enterprise (with which she had complied), St. Eve said it did not address the issue of jurors’ names and addresses. Therefore, she said in a decision issued in April, she must answer the question by applying the experience-and-logic test announced by the Supreme Court in 1986 in a second Press-Enterprise Co. v. Superior Court decision.

Under the experience-and-logic test, a First Amendment right of access to a particular part of a criminal court proceeding depends upon whether, in the nation’s experience, that portion traditionally has been open and upon whether, logically, access has enhanced the fairness of the proceeding.

St. Eve concluded that neither experience nor logic required her to provide the jurors’ names or addresses to the news media. In concluding the Tribune had failed to satisfy the experience prong, St. Eve pointed to the dearth of case law supporting the Tribune’s position and to cases that at least implied that judges had the discretion to refuse to release jurors’ names. St. Eve also relied on a court operating procedure that allows judges to keep jurors’ names confidential “if the interests of justice so require.” Interestingly, St. Eve did not mention the long history of access to jurors’ names or ask what circumstances might have justified confidentiality in the cases she cited.

St. Eve also relatively easily found the Tribune had failed to satisfy the logic test. Access to information about jurors, she said, is not significant because the jury occupies a “shrouded role” in the criminal process. Moreover, she reasoned, open jury selection is sufficient to ensure that jurors are selected fairly. Indeed, she said, releasing jurors’ names threatens a defendant’s right to a fair trial by potentially subjecting jurors to outside influence and harassment.

Less than two months later, on May 31, the Pennsylvania Supreme Court reached the opposite conclusion. In Long, a husband was being tried for allegedly killing his wife. Though jury selection was open, potential jurors were referred to only by number. When a local newspaper and television station sought names and addresses of the chosen jurors, the trial judge refused, citing concern for the jurors’ anonymity and a court rule that deemed confidential all information potential jurors provided in their juror questionnaires.

On appeal, the Pennsylvania Superior Court affirmed, citing the second Press-Enterprise decision as support for its belief that the First Amendment is satisfied as long as jury selection is open.

In a 5-0 opinion, the state Supreme Court reversed. Applying the experience-and-logic test, the court first recognized that, in the “historical practice” of jury selection, jurors’ names (but not their addresses) “have commonly been disclosed during trial.” Experience therefore weighed in favor of continuing this practice.

Logic, the court said, also weighed in favor of access to jurors’ names. According to the court, access to jurors’ names is part of the openness that ensures the fairness of the criminal justice system.

“Openness is fostered by the public knowledge of who is on the impaneled jury,” the court said. “Armed with such knowledge, the public can confirm the impartiality of the jury, which acts as an additional check upon the prosecutorial and judicial process.”

The court was not insensitive to the privacy interests of jurors but said the balance between the competing interests of openness and privacy is fairly struck by a rule that requires disclosure of jurors’ names but keeps confidential their addresses. The court also held the First Amendment right of access is qualified, not absolute, recognizing that cases might exist in which concerns for juror safety or jury tampering would justify an anonymous jury.

The court cautioned, however, that this exception must not be allowed to swallow the rule.

“[G]eneral concerns for harassment or invasion of privacy ... exist in almost any criminal trial,” the court said. “Rather, the closure must be supported by specific findings demonstrating that there is a substantial probability that an important right will be prejudiced by publicity and that reasonable alternatives to closure cannot adequately protect that right.”

As the decisions in Black and Long demonstrate, the debate over secret juries is far from over. Unless a consensus develops — which seems unlikely given the different applications of the same test — that debate might not end until the U.S. Supreme Court announces which experience and logic it finds most persuasive.

Related Federal court won't I.D. jurors in Conrad Black trial Rejecting request from Chicago Tribune, judge says 'there is no First Amendment right to access juror names during the pendency of trial.' 04.10.07 Jurors' names should usually be released, rules Pa. high court But justices say addresses are off-limits; news organizations applaud decision overturning lower court rulings. 06.01.07 N.J. court says public can watch jurors being questioned Appellate judges cite First Amendment in agreeing with newspapers that they should be allowed to witness post-verdict questioning in slip-and-fall case. 06.04.07 Analysis/Commentary summary page View the latest analysis and commentary throughout the First Amendment Center Online.

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