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3rd Circuit rejects juror anonymity in Wecht trial

By Douglas Lee
Special to the First Amendment Center Online

Though it’s probably premature to believe U.S. v. Wecht is the death knell for the overuse of anonymous juries, it’s certainly a good reason to be hopeful.

In a 2-1 opinion issued on Aug. 1, the 3rd U.S. Circuit Court of Appeals in Wecht forcefully held that the news media enjoy a presumptive First Amendment right of access to jurors’ identities. In doing so, the court emphatically rejected the increasingly popular notion that jurors’ interests in privacy outweigh the judicial system’s interest in openness.

At issue in Wecht, a federal fraud prosecution of well-known forensic pathologist Cyril Wecht, was a district court ruling concealing the names of jurors and prospective jurors from the press. Wecht and several Pittsburgh-area media companies challenged the order. With the trial scheduled to begin on Jan. 10, the court of appeals announced its reversal of the lower court’s order on Jan. 9 and said it would issue its supporting opinion “in due course.”

For those who cringe every time a court empanels an anonymous jury, the opinion was worth waiting for. Aware it was bucking a popular trend, the 3rd Circuit, in an opinion written by Judge D. Brooks Smith, carefully laid out the historical record and current circumstances that require jurors’ names to be disclosed.

The court started with the “experience and logic” test announced in 1986 by the U.S. Supreme Court in Press-Enterprise Co. v. Superior Court. Under this test, courts determine whether an aspect of a criminal trial is open to the public by analyzing whether the aspect historically has been open (experience) and whether access enhances the trial’s fairness (logic).

Looking at the history of jury selection, the 3rd Circuit concluded jurors’ names traditionally have been known to the public. Reviewing several historical studies, the court determined that, from the days jurors were chosen from among the men living in a village through the 1970s, instances of anonymous juries were rare. Therefore, the court said, “public knowledge of jurors’ names is a well-established part of American judicial tradition.”

Applying the logic prong, the court found that “the purposes served by the openness of trials ... are also served by public access to the jurors’ names.” Those purposes, the court observed, include allowing the public to identify “key participants” in the criminal justice system, verify that jurors represent a cross-section of the population and discover juror bias or corruption.

While recognizing that public knowledge of jurors’ identities creates risks that reporters and others might attempt to contact jurors and their families, the court said openness in most cases outweighs those risks. The “prospect of criminal justice being routinely meted out by unknown persons” the court said, quoting the 1st U.S. Circuit Court of Appeals in In re Globe Newspapers, “does not comport with democratic values of accountability and openness.” Moreover, the court said, it could not reconcile Supreme Court rulings that trials and jury selection be open “with the conclusion that the public has no right to know who ultimately” decides guilt or innocence.

In his dissent, Judge Franklin Van Antwerpen disagreed with the majority’s determinations under both prongs of the experience and logic test. While not persuaded by the majority’s historical analysis, Van Antwerpen believed recent history was more important, given the new types of media and the ways in which they cover high-profile trials. The experience of that recent history, he said, suggests juror anonymity is an important tool for trial judges to use in managing cases of high public interest.

Van Antwerpen also failed to see any logic in requiring public disclosure of jurors’ names. Rather than encourage openness and confidence, he said, disclosure in many cases will discourage potential jurors’ candor during jury selection. Additionally, Van Antwerpen said it was unfair to subject jurors to media scrutiny.

“Such reporting may require significant and unwarranted invasions of the privacy of the jurors,” he said, “none of whom had a choice about being called to service.” Therefore, he wrote, “Requiring district courts to bow to media demands to know the names of prospective jurors would certainly impair the public good in many cases.”

After the majority found a presumptive right of access to juror names, it turned to whether the expected news coverage of the Wecht trial overcame that presumption. In words that will be cited often in juror-anonymity cases, the court said it did not.

“The prospect that the press might publish background stories about the jurors is not a legally sufficient reason to withhold the jurors’ names from the public,” the 3rd Circuit held. “Although such stories might make some jurors less willing to serve or more distracted from the case, this is a necessary cost of the openness of the judicial process.”

An interesting twist in this case is the public role played by at least some of the jurors after the trial ended in a mistrial on April 8. Several jurors shared with news outlets that, before deadlocking, eight of the jurors had favored acquitting Wecht on 27 of the 41 counts and six had favored convicting him on the others. The Pittsburgh Tribune-Review later reported that Wecht and his defense team in June enjoyed a tailgate party and Pittsburgh Pirates baseball game with five of the jurors and their families.

The propriety of disclosing details of jury deliberations and socializing with a defendant and his lawyers after a mistrial, of course, can be debated. And, thanks to the 3rd Circuit’s ruling, that debate can be both accurate and meaningful.

3rd Circuit lets sunshine in on famous coroner’s trial
By Douglas Lee Jurors’ names to be public in trial of Cyril Wecht, forensic pathologist accused of improper conduct. 01.28.08

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