Identity Crisis

The cynicism oozing from some members of the legal community about how juries really work was palpable at the Arizona Supreme Court on January 31.

The occasion was a meeting of the effusively titled "Arizona Supreme Court Committee on the More Effective Use of Juries," which first convened in 2001. Among other tasks, the committee has been considering whether to recommend a new rule that automatically would keep the names and addresses of jurors secret, even from the opposing attorneys.

Most states, including Arizona, already have court rules that allow anonymous juries in special cases, such as the criminal trial of Oklahoma City bomber Timothy McVeigh.

On occasion, judges impanel anonymous jurors using numbers instead of names -- in cases involving defendants with known links to organized crime or to terrorist groups. Judges also have ordered secret juries in cases where a defendant has interfered with the judicial process in the past such as threatening witnesses or prosecutors and in high-profile cases including the 1992 trial of the Los Angeles police officers charged with beating Rodney King.

But appellate courts have been loath to sanction blanket rules that would keep the names of jurors secret.

In one recent Louisiana case, for example, an appellate judge warned that sealing a juror's identity may give the impression that "the defendant is a dangerous person from whom the jury must be protected, thereby implicating the defendant's constitutional right to the presumption of innocence."

No one during the three-hour meeting at downtown Phoenix's Supreme Court building listed any real-life examples of how identifying jurors specifically has negatively affected justice in Arizona.

But despite this lack of evidence, some members of the panel which includes judges, prosecutors, defense attorneys, media representatives, a private investigator, and court administrators are still leaning toward anonymous juries.

Coconino County Superior Court Judge Jeffrey Coker claimed that "sensationalistic media coverage" unduly frightens jurors into voting according to public sentiment rather than how they truly feel. But Coker also admitted that, in his northern Arizona county, many citizens already know who's sitting on juries in high-profile cases because the population base is small.

"But jurors may be afraid to vote their conscience, that's my point," Coker said.

That cynical view led John Fearing of the Arizona Newspaper Association to counter that some officials are keen to blame media for "irresponsible acts" under the guise of hacking away at the public's right to know.

Another speaker claimed that the growing percentage of citizens who fail to show up for jury duty is mostly due to fear of being identified in newspaper articles or television spots. But that panelist, Scottsdale jury consultant Hale Starr, cited no study to corroborate her opinion.

Bob Briney, who heads the Maricopa County Legal Defender's Office, said this is the first time that the possibility of automatically anonymous juries has been raised in his 28 years of practicing law.

"How often has it occurred where there's been a problem?" Briney asked. "To most people, being a juror is a public service that they're proud of doing. I think that, especially if they're going to kill someone [Arizona juries now do the sentencing in death-penalty cases, not judges], it's important to stand up and say that you did this, not hide behind a number."

Briney found a surprising ally in deputy county attorney Jerry Landau, a veteran prosecutor.

"I have to be concerned that a blanket rule [of jury anonymity] is in the best interest of society," Landau said. "I think there has to be a presumption of openness unless a compelling need is proven otherwise."

Media attorney Peter Kozinets agreed that "the more information that is made about the court process, the more the public will see for themselves that justice is being done . . ."

Kozinets, too, suggested that judges should continue to act on a case-by-case basis in Arizona, not because of a sweeping new rule. He noted that the riots in Los Angeles after the four white cops accused of beating Rodney King were acquitted may have been more readily quelled if the jurors' names hadn't been kept secret. "If jury information had been available, it's entirely possible that the questioning of the legitimacy of the verdict could have been substantially reduced."

Rich Robertson, a former journalist who now owns a private investigation firm, said most jurors in his experience want to talk about the trial, both with opposing attorneys and, in the rare high-profile case, with media.

"If you take away a person's name . . . it gives them a shield by which they can lie," Robertson said.

A deliciously relevant irony went unmentioned during the session: The Texas Court of Appeals currently is debating whether a trial judge has the authority to permit the videotaping of jury deliberations in the death-penalty case of a 17-year-old accused of killing a man during a carjacking. The trial judge in that case agreed to let the PBS show Frontline tape the jury deliberations, after only 14 of the 110 jurors who filled out a pretrial questionnaire expressed reservations.

Also on the national front, two other recent cases added new dimensions to the secret jury issue:

In Nashville, Tennessee, an appellate court last December granted a defense attorney's request to view a sealed list containing jurors' names, addresses and telephone numbers from a 1996 murder case in which two men were convicted. The defense claimed a possible bias against one of the defendants because of a "general atmosphere of intimidation and fear" that allegedly had been created by the presence of an anonymous jury and the unusually tight security. A twist: The judge had ordered the secret jury because of prior threats the defendant had made against his own attorneys.

And last Christmas Eve, the Ohio Supreme Court concluded that the First Amendment "qualified right of access" extends to juror names, addresses and questionnaires, and that the "presumption of openness" may be overcome only in specific cases for narrowly tailored reasons. The case involved a young Akron man charged with murder and rape. (He never was convicted of the crime.)

The commission is expected to report its findings and recommendations to the Arizona Supreme Court later this year.

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Paul Rubin
Contact: Paul Rubin