Yesterday (scroll down) we posted an entry referencing a Fort Wayne Journal Gazette editorial protesting that "New state court rules and local court practices designed to protect the privacy of people who serve on juries have" combined, in some instances, to make unavailable even the identify of jurors. The editorial concludes: "When six or 12 people determine the fate of a criminal defendant or civil litigant, they have made a decision by and for the public. Their names should be a public record."
What does the new rule say? Indiana Rules of Court: Jury Rules provides:
RULE 10 JUROR SAFETY AND PRIVACYSee also Indiana Rules of Court: Admiistrative Rule 9, currently in effect: "In accordance with IC 5-14-3-4(a)(8), the following court records are hereby declared confidential: ... (L) Personal information relating to jurors or prospective jurors not disclosed in open court, other than for the use of the parties and counsel".
Personal information relating to a juror or prospective juror not disclosed in open court is confidential, other than for the use of the parties and counsel. The court shall maintain that confidentiality to an extent consistent with the constitutional and statutory rights of the parties.
The revised Rule 9, due to go into operation 1/1/05, provides at subsection (G):
(G) Court Records Excluded From Public AccessThe Tyco jury revelations last week have alerted us all to issues of juror privacy. For instance, this quote from a NY Times article of 3/28/04:
(1) Case records. The following information in case records is excluded from public access and is confidential: ...
(b) Information that is excluded from public access pursuant to Indiana statute or other court rule, including without limitation: ...
(xii) Personal information relating to jurors or prospective jurors, other than for the use of the parties and counsel, pursuant to Jury Rule 10; ...
Legal experts said they could not think of another instance of such identification in a high-profile case in a big city, though they said that jurors' identities were often widely known in smaller communities. While jurors' names are a matter of public record, news organizations do not ordinarily name jurors while they are deliberating.[Today's NY Times contains a front-page interview with "Juror #4."]"The media may well be interfering with the deliberative process," said Abraham Abramovsky, a law professor at Fordham who has written on jury privacy. "Naming her exerts a kind of pressure to get herself together and join the band."
Whether through the judge's admonitions or outside pressure, then, the risk of undue influence on a juror whose views are known, even if only because she volunteered them, presents the legal system with a difficult problem.
There are other issues relating to juror privacy: whether or not to permit public access to juror questionaires; and the question of judicial gag orders that prevent jurors from discussing deliberations after a trial.
Juror questionaires have been an issue in the Scott Peterson trial, where the judge ordered them sealed. See this brief report from the 3/23/04 San Francisco Chronicle.
Delucchi said releasing the answers, which detail everything from potential jurors' places of employment to the number of times they have been married, would "discourage jurors from wanting to participate in the case."Here is a link (via the National Center for State Courts) to a scholarly 29-page article titled: "Making the Case for Juror Privacy: A New Framework for Court Policies and Procedures" by Paula L. Hannaford.The judge said the answers, submitted in 23-page questionnaires given to prospective jurors earlier this month, would make it easy for anyone with to determine the identity of the jurors in the case.
Given the intense media scrutiny of the case, which Delucchi believes exceeds even that in the O.J. Simpson and Charles Manson murder trials, the judge said he could not "rely on media restraint" to ensure jurors' privacy.
With repect to "Judicial gag orders," this report from the 4/5/04 Pennsylvania Express-Times really should be read in full. Some quotes:
On March 4, the Hirko jury held the city and police Sgt. Joe Riedy liable for the 1997 SWAT raid that killed 21-year-old Hirko, a suspected drug dealer who grew up in Palmer Township. Gardner dismissed the jury March 22 after a $7.89 million settlement between Bethlehem and the plaintiffs became official. The plaintiffs were Hirko's parents, his fiancee and the owner of Hirko's rental home where the fatal raid took place.Finally, for now, one more item: a 4/2/04 article on jury service from the Washington Post titled "Culling a Shrunken Jury Pool: Some Go to Lengths to Avoid Service; Others Seek Limelight."After dismissing the jury, Gardner told a reporter he would not disclose the identities of the jurors. He also said the reporter could not review the jury's 28-page verdict document because it included the jurors' signatures.
"I am not giving the jurors' names or addresses to anyone," Gardner said March 28. "They are very protective of their privacy and concerned. It is hard enough to get jurors to serve. It's not a matter of public record."
Henning said "jury proceedings and jury lists should be open to the public, except in those extraordinary cases where there is actual or an imminent threat of juror harassment or intimidation." She said cases where juror information is closed usually involve organized crime.
"Our justice system was founded on the principle that courts and proceedings should be open to the public," Henning said. "Open courts promote public confidence in the system and help to ensure basic fairness to its participants. Under both constitutional and common law principles, all court records and proceedings are presumptively open to the public. They can be closed in limited circumstances, but only after notice, a hearing, and specific findings that closure is necessary to preserve some higher interest. The jury verdict sheet, which sets forth the most fundamental information on a trial and the jury's ultimate finding on liability, must be open to public inspection."
[More] Also of note is the motion filed last week by the Martha Stewart attorneys seeking a new trial. Some quotes from the NY Times report:
Lawyers for Martha Stewart sought a new trial yesterday, saying a juror failed to disclose that he had been arrested on an accusation of assault and provided other false information about his background. * * *Posted by Marcia Oddi at April 7, 2004 10:04 AMDocuments filed along with the request contend that the juror, Chappell Hartridge, had been arrested and arraigned in 1997 after being accused of assault, and that he did not disclose that information. An affidavit from a woman named Gail Outlaw says that Mr. Hartridge assaulted her but that she dropped the charges "because his family put pressure on me to do so and because I could not afford to miss any more time at work to pursue the matter." The arrest record is sealed, as required under New York law. Ms. Stewart's lawyers are seeking to have it unsealed. * * *
All of the prospective jurors in the case were required to complete a confidential questionnaire as the first step in a screening process. They were then interviewed by prosecutors and defense lawyers. Reporters were barred from the interviews and not permitted to see any copies of the questionnaires, despite requests and motions filed with the court.