Anonymous Juries Raise Concern
The National Law Journal
Missouri has joined a handful of states that have adopted measures to seal the identities of jurors in criminal trials.
While most states now allow anonymous juries at the discretion of the trial judge, critics charge that sweeping measures like Missouri's Rule 27.09 are a dangerous trend.
When Rule 27.09 goes into effect on Jan. 1, all jury lists and questionnaires will remain under seal by Missouri courts at the conclusion of criminal proceedings. The parties and lawyers are barred from disclosure "except on application to the trial court and a showing of good cause."
California has enacted similar language, and a handful of other states -- including Colorado, Florida, Maryland, New York, Ohio, Texas and Wisconsin -- have debated similar proposals, according to research by Steven D. Zansberg of the Denver office of Minneapolis-based Faegre & Benson, who has written on the subject.
Also among them is Texas, where Houston District Judge Ted Poe has agreed to allow a camera crew to film jury deliberations in a death penalty case.
Critics say the sweeping measures to shield jurors contradict the presumption of openness that defines the American judicial system and are a threat to the First Amendment freedom of the press.
Proponents say they are needed to protect jurors from media probes and the traffic of private information on the Internet.
Missouri's measure was proposed after the high-profile case of convicted murderer Ellen Reasonover, who was freed from prison in 1999. An appellate court reversed her conviction on grounds that the jury never learned that witnesses who testified against her had cut deals with the prosecution.
Montel Williams' television show, "Montel," sought the names of the jurors for interviews, prompting the Missouri Supreme Court to take up the question of how best to protect jurors.
Jean Maneke of the Maneke Law Group in Kansas City, Mo., represents the Missouri Press Association in opposing Rule 27.09. "I'm not suggesting that litigation is where we're headed," says Maneke, "but there hasn't been a good healthy discussion among lawyers and the public as to what is happening here."
Maneke and a group of amici requested a conference with members of the state supreme court, which was scheduled to happen Wednesday.
The American Civil Liberties Union has voiced objection in Missouri, and national press groups have extended their concerns to the increased use of anonymous juries. The Reporters Committee plans to track the trend on its Web site.
The vice president of the Missouri Association of Criminal Defense Lawyers, Charlie Rogers of Wyrsch Hobbs & Mirankian in Kansas City, says he is concerned about limits on appellate lawyers' access to jury questionnaires to build post-conviction habeas challenges and review the defense's pre-emptory strikes.
The gag rule provides an exception for lawyers "to create the record on appeal or for post-conviction litigation," but it also requires "a showing of good cause." That could be a Catch-22, says Rogers. "How can you show good cause if you don't know what it is yet?"
The rule was recommended by an 11-member committee that included a wide cross-sampling of legal professionals, including prosecutors, judges, private attorneys and a law professor, says Beth Riggert, communications counsel for the Missouri Supreme Court. The panel reviews all the court rules on criminal procedure.
"Questionnaires often ask jurors to provide detailed information about themselves and their families. A member of the public will no longer be able to walk in and find out that information without a showing of good cause," says Riggert. "The discretion is still in the hands of the trial judge."
But the balance of power has shifted, according to Zansberg, who asserts that public access to information in court proceedings is a fundamental right. "The burden is not on the press to justify access, the burden is on the government to justify withholding the information."
The law professor on the panel, Edward H. Hunvald Jr. of the University of Missouri at Columbia, acknowledges some legitimate concerns about the rule.
In seeking a balance of interests, he says, the committee first held lengthy discussions, read opposition letters from press groups and looked at what other states had done.
More states are considering measures like Missouri's, says Hunvald, but it's too early to predict a national trend or the fate of the rule in Missouri.
"It will not be overruled as written," he says. "But as applied? That's another matter."
Public reaction in Missouri has been mixed, according to an online opinion poll conducted by Missouri Lawyer's Weekly. Of the 95 people who responded, 54 percent said that safety of the jurors is paramount, while 46 percent said the rule threatens the integrity of the jury system.
According to Rogers, who also worked on the appeal for Reasonover, the case that started all this ended with an ironic twist. The only juror who voted against the death penalty in Reasonover later appeared with her on "Montel."
"I don't know if the press has a right to be contacting jurors," says Rogers, "but her and Ellen have become friends. She didn't seem to mind."