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Ruling affirming anonymous jury flouts principle of open trials

By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

To say the 5th U.S. Circuit Court of Appeals views members of the news media like criminals would be an exaggeration. But, if the court's recent decision in U.S. v. Brown is any indication, only a slight one.

In Brown, the court affirmed significant portions of a trial court's efforts to impanel an anonymous jury. In doing so, the appellate court refused to distinguish between criminals' intimidation of jurors and journalists' attempts to cover the news.

Brown involved the prosecution of former Louisiana Gov. Edwin Edwards, Louisiana Insurance Commissioner Jim Brown and Shreveport lawyer Ronald Weems for conspiracy, fraud and witness tampering. After three weeks of trial, Edwards and Weems were acquitted of all charges. Brown was acquitted of most charges but was convicted of making false statements to an FBI agent.

More than four months before the trial began, the United States asked trial judge Edith Brown Clement to impanel an anonymous jury. After she granted the motion over the defendants' objection, several media entities asked her to reconsider. In the alternative, the news media asked Clement to release, after the trial, the jurors' names, addresses and places of employment.

Clement refused to vacate her order establishing the anonymous jury. Claiming that anonymity had long been an important element of the jury system, Clement said her order "merely increased the degree of anonymity." Clement further relied on the 5th Circuit's 1995 decision in U.S. v. Krout, in which the court set forth five factors judges should consider when presented with a request to seat a secret jury.

As the first two of these factors — whether the defendant is involved in organized crime or with a group capable of harming the jurors — indicate, the primary concern in Krout was juror safety. Clement, however, found the anonymous jury was justified because the facts satisfied the final three factors — the defendants had previously attempted to interfere in the judicial process, they faced lengthy prison terms and the case already had generated extensive publicity. Clement then went even further, ordering the press not to interfere with or circumvent her anonymity order.

After the trial, Clement considered the media's request for information about the jurors. Ultimately, however, Clement left that decision to the jurors, telling them she would not release any information about them without their consent. While one juror agreed to be interviewed after the trial, none of the 12 agreed to waive his or her anonymity.

The news media appealed Clement's ruling prohibiting circumvention of the anonymity order and her refusal to release juror information after the trial. Interestingly, however, the press did not appeal the anonymity order itself.

Not surprisingly, the appellate court latched onto the news media's decision not to appeal the anonymity order, saying the media, by not appealing that order, had conceded anonymity was necessary to prevent "extraneous harassment and intimidation of jurors." The decision not to appeal the anonymity order also allowed the appellate court to duck the ultimate issue: "[W]e do not reach the direct question whether anonymity was justified," the court said at one point. "That question is not before us."

As to the circumvention order, the appellate court reluctantly concluded the order constituted an unlawful prior restraint against publishing juror information obtained from non-court sources. Moreover, the court said, the circumvention order was ambiguous because "various gradations of information" conceivably could reveal a juror's identity.

While the press has proclaimed the court's decision a victory, the court's opinion contains many ominous clouds. Most important, the court without hesitation equated criminal intimidation of jurors with news coverage. Through the anonymity order, the court said, Clement was trying to prevent harassment and intimidation of jurors "by the press and the defendants." Evidence supporting Clement's fears "of an imminent and serious threat from both these sources," the court noted, "was abundant."

Even if abundant, the evidence of criminal threats was much different than the evidence of media harassment. The evidence of criminal threats, for example, included prior attempts by the defendants to influence jurors, harass witnesses and bribe a judge. The evidence of media harassment, however, included only lawful attempts to interview "anonymous" jurors in a prior trial and "zealous" attempts to obtain access to sealed information. To many, this is evidence that reporters merely were doing their jobs. To the 5th Circuit, however, these newsgathering efforts threatened "the integrity and independence of the jury process."

Also troubling was the appellate court's conclusion that jury anonymity was preferable to sequestration. In other cases, the news media have argued that the constitutional guarantee of open trials requires trial judges to consider least-restrictive alternatives — including jury sequestration — before gagging participants or impaneling secret juries. In Brown, however, the 5th Circuit stated anonymity was more effective than sequestration because anonymity, unlike sequestration, protects jurors' families from "influence exerted by outside parties."

While one hopes the 5th Circuit did not mean to include the news media in those "outside parties" who might "influence" sequestered jurors' families, that hope might not be justified. Even when reversing the circumvention order, the court encouraged the U.S. Supreme Court to give trial judges the power to "fully enforce" orders seating anonymous juries.

Finally, the 5th Circuit affirmed Clement's refusal to release juror information after the trial. In doing so, the court without debate accepted the notion that jurors in "sensational" cases should be able to control whether their identities are revealed. Jurors, the court said, "need not become unwilling pawns in the frenzied media battle over these cases."

Unfortunately, the 5th Circuit's opinion speaks volumes about how badly news organizations are losing the battle over secret juries. Not that long ago, we expected jurors in high-profile cases to rise to the challenge (and perhaps suffer the occasional inconvenience) associated with their duty. Today, we have reduced these jurors to "unwilling pawns" in a "frenzied media battle," as if the primary concern is not the guilt of the defendant but how the journalists behave.

And, if the 5th Circuit's opinion is any indication, tomorrow will be even worse.


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Federal judge bars public, press from Louisiana corruption trial

Media outlets ask appeals court for access to trial of former Gov. Edwin Edwards. 09.19.00

Appeals panel rejects challenge to anonymous jury in Louisiana corruption trial

But federal court finds judge erred by telling news media not to ‘circumvent’ order keeping jurors’ names secret. 05.03.01

Utah could mask juror identity for five days after trials
Press fears Judicial Council rule will hinder timely newsgathering, undermine court credibility. 08.28.01

Court upholds order limiting contact with jurors in tire case
Judge says order is needed to protect jury, but newspaper publisher says restriction amounts to prior restraint on press. 08.31.01

News groups fail to gain access to jurors
First Amendment experts say federal appeals panel’s ruling follows trend in 5th Circuit to restrict journalists’ newsgathering rights. 09.26.01

Federal judge won't make juror names public in Abner Louima retrial
Meanwhile, critics say Wisconsin county's rule sealing juror names follows trend toward 'secret justice.' 09.09.02

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