Secret Justice: Secret Juries
Keyes, Kimberley, News Media and the Law
The Reporters Committee For Freedom of the Press
Courts are finding ways to shield jurors' identities from the news media and the public, even in cases where there is no threat of harm. Judges tried to keep the jurors' names secret in the Martha Stewart and Frank Quattrone cases, and four reporters were held in contempt for contacting jurors in the murder-for-hire trial of Rabbi Fred Neulander. Judges often seem slow to recognize that secret juries jeopardize the public's right to know how its courts work.
Secret Justice: A continuing series
The American judicial system has, historically, been open to the public, and the U.S. Supreme Court has continually affirmed the presumption of openness. However, as technology expands and as the perceived threat of violence grows, individual courts attempt to keep control over proceedings by limiting the flow of information. Courts are reluctant to allow media access to certain cases or to certain proceedings, like jury selection. Courts routinely impose gag orders to limit public discussion about pending cases, presuming that there is no better way to ensure a fair trial. Many judges fear that having cameras in courtrooms will somehow interfere with the decorum and solemnity of judicial proceedings. Such steps, purportedly taken to ensure fairness, may actually harm the integrity of a trial because court secrecy and limits on information are contrary to the fundamental constitutional guarantee of a public trial.
The public should be the beneficiary of the judicial system. Criminal proceedings are instituted in the name of "the people" for the benefit of the public. Civil proceedings are available for members of the public to obtain justice, either individually or on behalf of a "class" of persons similarly situated. The public, therefore, should be informed -well informed - about trials of public interest. The media, as the public's representative, needs to be aware of threats to openness in court proceedings, and must be prepared to fight to ensure continued access to trials.
In this series, the Reporters Committee takes a look at key aspects of court secrecy and how they affect the newsgathering process. We will examine trends toward court secrecy, and what can be done to challenge it.
The previous installments of this "Secret Justice" series concerned anonymous juries (Fall 2000), gag orders on trial participants (Spring 2001), access to alternative dispute resolution procedures (Fall 2001), access to terrorism proceedings (Winter 2002), secret dockets (Summer 2003), judicial speech (Spring 2004), grand juries (Fall 2004), and celebrity trials (Spring 2005).
As the media continues to scrutinize juries in high-profile cases, federal and state authorities are making it more difficult for the public to identify those who sit in judgment of others.
Experts say the use of anonymous juries-whose individual identities are kept completely secret, even from the parties to a case - is on the rise. Such juries are most often empaneled in cases involving organized crime or terrorism, where the judge has determined there may be a real risk of jury tampering or threat to juror safety.
But even in cases where no such danger appears to exist, courts and legislatures are using other tactics to shield jurors' identities from the press. The measures - from refusing to release jurors' names and addresses and banning jury lists from public case files, to selecting juries behind closed doors or ordering the press not to publish juror names said aloud in open court - occur with alarming frequency as concern about protecting personal privacy swells.
Free-press advocates say secret juries jeopardize the public's right to know.
"I don't think most members of the public understand that personal privacy is one side of a two-sided coin - the other side being the public interest - and every time we turn over that side of the coin to protect privacy, we lose the ability to protect the public interest," said Society of Professional Journalists President Irwin Gratz, a news producer for the Maine Public Broadcasting Network. …