State Courts Adopt Varying Degrees of Access to Jury Selection

Recent rulings by state courts in Kansas, Nevada, and Massachusetts recognized the rights of the accused as well as the rights of the public by allowing varying degrees of access to trial court jury proceedings.

Massachusetts High Court Affirms Sixth Amendment Right to Open Jury Selection

The Supreme Judicial Court of Massachusetts issued an opinion on Feb. 17, 2010 that vacated the conviction of a man who claimed his constitutional right to a public trial was violated when the court determined that members of the public and the press were excluded from jury selection proceedings before his trial.

"The public trial right applies to jury selection proceedings, which are a crucial part of any criminal case," wrote Justice Margot Botsford in Commonwealth v. Cohen, 921 N.E.2d 906 (Mass. 2010). "Throughout a trial, an open court room [sic] enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system."

The opinion vacated the conviction of David Cohen, a former Stoughton, Mass. police officer and lawyer who was charged with extortion, filing a false police report, and two counts of witness tampering. During the multi-day jury selection process, the trial court judge placed a sign on the door of the courtroom that read "Jury Selection in Progress. Do not enter."

During an evidentiary hearing on the motion, several of Cohen's friends and supporters testified that the "Do Not Enter" sign kept them out of the jury selection, and at least two reporters testified that court officers had told them that they would not be permitted in the courtroom during jury selection.

Cohen filed a motion for a new trial after his conviction, arguing that the closure of the jury empanelment process had violated his Sixth Amendment right to a public trial. The trial judge, Barbara Dortch-Okara, denied Cohen's motion, noting that the defendant's family and some other members of the public were present during portions of the jury selection process.

Dortch-Okara also said that the excluded reporters were not vocal enough in asserting their rights.

"[M]embers of the press characteristically are vigilant in asserting their rights," Dortch-Okara wrote in the denial of Cohen's motion, according to the Supreme Judicial Court's opinion. "From their conduct, the court concludes that the empanelment was not sufficiently important to them to seek entry."

Cohen appealed, and the Supreme Judicial Court reversed. "The sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known," Botsford wrote, citing both state and federal court precedents.

Although Botsford cautioned that "the public trial right is not absolute," she concluded that Dortch-Okara had not made a sufficient finding that closing the court, even partially, was necessary.

"Here, the 'Do Not Enter' sign had a preemptive and preventive effect," Botsford wrote. "The defendant has thus established that the jury selection procedures used in this case violated his Sixth Amendment right to a public trial . . . and that accordingly, he is entitled to a new trial."

According to an April 27, 2010 story in The Patriot Ledger of Quincy, Mass., prosecutors said they were prepared to retry Cohen and were waiting for a court date.

In a Jan. 8, 2010 Boston Globe story, Wendy Sibbison, Cohen's appellate lawyer, said the court was "reaffirming a bedrock legal principle" in its ruling. "The whole idea is that people watching keeps everybody else in the courtroom keenly alive to their responsibilities,'' Sibbison said. "The fairness of a jury is utterly reliant on whether those prospective jurors tell the truth or not when they are asked questions.. . . This is an enormously important decision.''

Media Gain Partial Access to Jury Selection in Kansas Abortion Doctor's Murder Trial

A Kansas trial court judge closed the jury selection portion of the murder trial of a man accused of killing late-term abortion provider George Tiller, but later allowed partial access after being ordered to reconsider by the Kansas Supreme Court.

According to a Jan. 14, 2010 Associated Press (AP) story, Judge Warren Wilbert originally closed the entire jury selection process in the murder trial of Scott Roeder, who was charged in the shooting death of Tiller in a Wichita church in May 2009. Attorneys for both the prosecution and defense agreed to keep the selection closed, but four different media outlets, including The Wichita Eagle, the Kansas City Star, the AP, and a Kansas television station, appealed Wilbert's decision to the Kansas Supreme Court.

According to a January 14 Eagle story, Wilbert wrote an order on January 11 stating that he was concerned about jurors honestly answering questions about their religious beliefs and opinions about abortion if the entire selection process remained open.

On Jan. 12, 2010, the Kansas Supreme Court ordered Wilbert to reconsider his decision to close jury selection in Wichita Eagle v. Wilbert, No. 103,666 (Kan. Jan. 12, 2010). "Consideration of these requests necessarily must include evaluation and balancing of the defendant's right to a public trial, the public's and media's rights to access the judicial proceedings, and the potential that this particular criminal case may involve questioning of potential jurors that implicates their right to privacy," the order said.

After the order, Wilbert announced that media outlets could sit in the courtroom once the jury pool was narrowed to 42 potential jurors, the AP reported. A Jan. 14, 2010 story in The Wichita Eagle said that Wilbert also agreed to release a jury questionnaire used in narrowing down the original pool of 140 potential jurors. The press groups did not appeal Wilbert's revised order.

Warren Hern, a friend of Tiller's, complained about the closed proceedings in a January 21 AP story. "This is the kind of thing that invokes the specter of Star Chamber proceedings," said Hern, referring to an English court in the 1600s that met in secret and became a symbol of the misuse of power by the monarchy. "Secret proceedings are the antithesis of a democratic society."

Lyndon Vix, an attorney for the AP, also criticized Wilbert's decision in a Jan. 15, 2010 report from the Reporters Committee for Freedom of the Press. "The judge ruled in a paternal way," Vix said. "Instead of waiting for potential jurors to request a closed voir dire the judge presumed that that would be the best thing."

Nevada High Court Rules Questionnaires from Simpson Trial Are Public

The Supreme Court of Nevada issued an opinion on Dec. 24, 2009, ruling that jury questionnaires used in the 2008 armed robbery and kidnapping trial of former football player O.J. Simpson should have been made public.

"[J]uror questionnaires used in jury selection are, like the jury-selection process itself, presumptively subject to public disclosure," wrote James Hardesty, the Chief Justice of the Nevada Supreme Court, in Stephens Media, LLC v. Dist. Ct., 221 P.3d 1240 (Nev. 2009). "Because we conclude that the district court neither articulated specific findings to show that concerns about juror candor superseded the First Amendment's presumption of open proceedings in jury selection nor considered reasonable alternatives to a complete closure of the questionnaires, we

. . . direct the district court to release all blank and completed juror questionnaires to petitioners."

During the course of Simpson's trial, which concluded in 2008, the district court issued a decorum order prohibiting the release of the jury questionnaires from Simpson's criminal trial. The petitioners in the case, which included the Las Vegas Review-Journal and the AP, intervened, seeking to access a copy of the blank juror questionnaire before jury questioning began and the completed questionnaires of the jurors and alternates who were ultimately selected for the jury.

The district court denied the press's application, stating that it was concerned about jury taint and "the likelihood that potential jurors would access the questionnaires and tailor their answers to better position themselves onto the jury," according to the Nevada Supreme Court's opinion. The trial court did release a blank questionnaire after the jurors were seated.

"Public access inherently promotes public scrutiny of the judicial process, which enhances both the fairness of criminal proceedings and the public confidence in the criminal justice system," Hardesty wrote in the Nevada Supreme Court's opinion. "We conclude that the First Amendment's qualified right of access extends to juror questionnaires prepared in anticipation of oral voir dire."

The court then adopted the reasoning used by the Supreme Court of the United States in Press Enterprise Co. v. Superior Court, 464 U.S. 501 (1984), commonly referred to as Press Enterprise II, to determine when a district court may limit access to juror questionnaires. Under a Press Enterprise II analysis, the court determined, a district court may refuse access to juror questionnaires only after it makes specific findings that the defendant would be deprived of a fair trial by the disclosure of the questionnaires, and considers whether alternatives to suppression of the questionnaires would protect the interests of the accused.

The Nevada Supreme Court then stated that the district court had not passed this test. "In every high-profile criminal case, there is a risk that jurors will prejudge the defendant but will be unwilling to admit their prejudgment," Hardesty wrote. "We determine that the district court's concern that potential jurors would preview the questionnaires and formulate their answers to better position themselves on the jury is based on unsupported conjecture."

The Nevada high court then ordered the district court to release all unredacted completed juror questionnaires to the media.

In a December 24 post on The Huffington Post, Donald Campbell, an attorney who represented the AP and the Review-Journal in the case, called the decision "a victory for the First Amendment and a victory for every citizen."

"One of the most critical features of our legal system is public access and open trials," Campbell said. "This decision reinforces just how important that commitment to full access is."

Dennis Drasco, the co-chair of the American Bar Association's Section of Litigation's Special Committee on Jury Innovation, said that publishing the completed questionnaires would have a negative impact on jury participation.

"My view is that privacy should prevail over the media's ability to delve into a juror's back ground [sic] - in any case, let alone a high-profile case," Drasco said in a February 25 article in the Litigation News. "I think jurors appreciate that and are more apt to give open answers that way."

- JACOB PARSLEY

SILHA FELLOW AND BULLETIN EDITOR

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This page contains a single entry by cla published on June 7, 2010 1:35 PM.

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