Friday, September 14, 2007

When do we give up our privacy?

This might be the most provocative thing I've read all year. It was posted on, perhaps my fave website ever for journalism.

The Connecticut Post has come under fire for publishing a huge story and info graphic listing the names, addresses, occupations and some other personal information of all the jurors, alternates and backup alternates in a trial to decide whether a person convicted of a crime should get the death penalty. This trial pertains only to sentencing.

I'm honestly, not sure where I stand on this. As many of you know: traditionally, newspapers and television news stations have not published jurors' names, but they have included other information, like gender breakdown, ethnic/racial makeup of a jury, occupations, just mainly not names and addresses.

Here's Al Tompkins (of the Poynter Institute) interviews with the reporter and editor at the Connecticut Post as well as some legal experts.

Posted, Sep. 13, 2007
Updated, Sep. 14, 2007

Tradition Defied: Connecticut Newspaper Names Jurors
When is it appropriate to identify jurors, and when do privacy concerns trump the principle of open courts?

By Al Tompkins (more by author)

In their two and a half decades working as jury consultants in such high-profile cases as the OJ Simpson trial, the Scott Peterson trail and the Enron trial, Dave Zagorski and Jo-Ellan Dimitrius said they have never seen journalists do what the Connecticut Post did last Sunday.

The Post ran a front page color graphic that took up nearly half of the page and a 90-column-inch story naming the jurors who had just been seated in a sentencing trial that began this week and is projected to last two months.

Courtesy of the Connecticut Post
It is an unusual story to begin with. The 12-person Superior Court jury must decide only whether Russell Peeler Jr. should get the death penalty or life in prison for killing an 8-year-old boy and his mother. A previous jury found him guilty, but deadlocked on whether he should die for his crime. The state Supreme Court ordered a second jury to be empaneled just to decide that question.

The Post
story not only named the jurors but also reported the communities many of them live in, where they work, how old they are and in some cases what they think about the death penalty. When Judge Robert Devlin Jr. told the jury what the paper published, one juror and one alternate juror asked to be excused from duty. One juror said she was concerned about retaliation. The second woman said she was worried about her children's safety. From May until August, it had taken four painstaking months of questioning, or voir dire as it is called in court, for lawyers to pick 12 jurors, four alternates and two backup alternates, and the panel had already lost one of the regular jurors due to health problems.

The reporter and the editor for the story say the public should know who is deciding a case, especially a high-profile case. But jury consultants and a former judge say publishing juror names while the trial is underway almost certainly would be solid grounds for an appeal. The jury selection was held in open court and there is no law that uniformly forbids journalists from publishing jurors' names. Even so, journalists seldom publish or broadcast juror names, especially before or during a trial.

High-Profile History

In other cases, courts found publishing the name of just one juror, let alone the entire panel, to be grounds for a mistrial. The first trial of a former Tyco executive (2004) ended in a mistrial after The Wall Street Journal and the New York Postpapers defended their actions saying the juror had attracted attention to herself. One critic suggested the newspapers be forced to pay for the taxpayer dollars lost when the trial abruptly ended.

But in the Bridgeport, Conn., case, the judge refused to declare a mistrial.

published the name of a juror who allegedly made an "OK" gesture to the defense team. By then, that trial had been running six months and cost millions of dollars. The
Stetson professor
Professor Charles Rose
"I can't come up with a scenario under which you would want the jury identified while a trial is underway," Stetson Law School professor Charles Rose says. Rose is the Director for the school's Center for Excellence in Advocacy and is a retired military judge advocate general. "For a defense attorney this as a tailor-made appeals issue."

The story was written by Post reporter MariAn Gail Brown, a graduate of Western New England School of Law. In her "spare time," she says she argues some of the Connecticut Post's Freedom of Information complaints before her state's FOI Commission.

For 42 days, Brown (and occasionally her colleagues) watched the voir dire proceedings. She says 1,422 people were brought in for jury duty; 388 of them were voir dired in-depth. Brown tells Poynter Online:

I listened and filled 42 notebooks. I am confident, there is not a question in my mind the judge, the prosecution and the defense attorneys knew I was going to name the jury. I believe the Connecticut Post is justified in naming the names of all of the jurors. In J-school, the mantra for writing a complete news story still is the five W's -- who, what, where, when, why and how. To not name these people would have done a disservice. A trial is a public event. Jurors' names are public information. To me, it's illuminating as well as frightening when I hear some people's interpretation of what rights the First Amendment confers. I believe our story upholds our obligation to inform our readers. It's more than a little disturbing the Constitutional rights some people are so willing to toss out in the name of misguided fear.

Brown says she set out to explain to the public how difficult it is to seat a jury in a death-penalty sentencing trial. "We feel it sheds light and understanding on the judicial process and how decisions get made -- what kind of background the people who make the decisions come in with."

Connecticut Post editor
James H. Smith
The editor of the Connecticut Post, James H. Smith, says the decision to publish the names of the jurors "was not a hard decision to make." In an e-mail interview with Poynter Online, Smith explains, "In nearly 40 years as a reporter and editor I have always named jurors. The Sixth Amendment calls for 'a speedy and public trial, by an impartial jury.' How can you have a public trial with a secret jury? How do you know if the jury is impartial if you don't know who they are?"

Jury Consultant Concerns

Jury consultant Dave Zagorski, who helped choose the jury in the Enron trial, says journalists in that trial and most others can tell the public important details about jurors such as their age, gender, occupation, race or ethnicity while not naming the juror. "These days, in most communities, not everybody knows each other," he said, so publishing the juror's name doesn't add much useful information to people who do not know the jurors but opens them to big privacy concerns. "If this becomes a trend, will judges inform jurors, 'You must be aware the media have a right to publish and we cannot guarantee your privacy'? Every hand of every person who wants off the jury is going to go up. People really have a lot of concerns about their personal safety."

Connecticut Post reporter
MariAn Gail Brown
But reporter Brown says in any story journalists report includes names because names add credibility. She says "if you use names in any other story because you want to know who said what, why wouldn't you use it in this story?" On the matter of juror safety, Brown says that during voir dire, jurors where overwhelmingly concerned about one thing far more than privacy or safety matters. "The overwhelming concern that people had (about serving on the jury) was the length of time of the case. Their jaws were dropping when they heard they might be serving for two months," Brown told Poynter Online. "By a mile, the biggest concern was the economic hardship of serving on the jury." Besides, Brown points out, anybody sitting in the courtroom, including the defendant, knows the juror's names.

Professor Charles Rose suggests that if jurors knew their lives would be laid open on the front page of the Sunday paper, they might lie or refuse to answer voir dire questions about their personal beliefs or to give intimate details of their lives that lawyers want to know when seating a jury. "You are giving them an overwhelming incentive to be dishonest," he said.

Jury consultant Zagorski says publishing juror names invites jury tampering and intimidation not just during a trial but after a trial if the jury makes an unpopular decision. "With a population of adults that already dreads jury service, now this adds concerns for their privacy and personal safety into the mix. What if this had happened to the jurors on the Chicago mob trial last week? Do you think those 12 people would be getting a very good night's sleep this week?"

Unanticipated Issue

Editor Smith says none of the jurors who were seated in the case expressed concern over their safety, and the paper, he said, would have been sensitive to those concerns, had they arisen. "We recognize there are times when witnesses and/or jurors should be protected from harm, say, in a Mafia figure's trial. In this case not the judge, not the prosecution, not the defense moved to make jurors' names private. They knew we were there and they knew we were writing about the case."

Smith has battled to open courtrooms and court proceedings before. "We argued in Superior Court earlier this year to make jurors' names public in another case and in the course of that argument learned that there were visible threats made against some of the jurors. So we did not pursue that and decided against naming the jurors."

But in this case, reporter Brown says, "We would have had to have seen and believed there was a compelling reason that people were fearing for their safety. If that was the case, there were attorneys that would have argued that -- they would have wasted no time arguing that."

Even though neither the judge nor the attorneys involved in the Russell Peeler trial attempted to prevent the Post from publishing the juror's names, once the story ran, the defense attorney was furious. The Post reported on Monday:

Peeler's lawyer, Erskine McIntosh, urged the judge to put a stop to the proceedings, saying he is concerned the information in the newspaper could hurt his client's right to a fair trial.

"I can barely put into words my disgust with the Connecticut Post. They have precluded Mr. Peeler from getting a fair trial by this journalistic misconduct," he said.

State's Attorney Jonathan Benedict told the judge he agrees with McIntosh only on one point: "This was an exercise of colossal misjudgment by the Connecticut Post."

But the remaining 15 jurors and alternates said despite the paper's coverage, it would not affect their ability to continue to serve, which raises the question: Is concern over whether to name jurors overstated?

Amendments at Odds?

The Connecticut Post readers' blog: Readers react to newspaper's decision to publish juror's names.

Balancing the Sixth and First Amendments.

The Media and Sam Sheppard
The Post's editor points out, "There has always been a tug and pull between the First and Sixth Amendments. A free and unfettered press may make it harder to recruit jurors, but I come down on the side of public trials. All branches of government have complained that the First Amendment gets in the way of efficient government. I think the free press helps elucidate the working of government, including jury trials."
And, Smith says, the courts themselves have spoken to the importance of "open trials." By Smith's reckoning, the more open, the better. He uses a couple of court decisions to make his point. In his e-mail exchange with Poynter Online, the editor writes:

In Globe Newspaper Co. v. Superior Court (457 U.S. 1982) the First Circuit Court of Appeals ruled "Knowledge of juror identities allows the public to verify the impartiality of key participants in the administration of justice, and thereby insures fairness, the appearance of fairness and public confidence in that system.

The seminal U.S. Supreme Court decision is Press-Enterprise Co. v. Superior Court, 464 U.S. 1984, and it held that the First Amendment requires jury selection to be held in open court unless a particularized showing can be made that permits overriding the public's right. "The open trial thus plays as important a role in the administration of justice today as it did for centuries before our separation from England. The value of openness lies in the fact that people not actually attending trials can have confidence that standards of fairness are being observed; the sure knowledge that anyone is free to attend gives assurance that established procedures are being followed and that deviations will become known. Openness thus enhances both basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system."

Classic Case

Journalists have created a stir by publishing juror names for decades. Three weeks before the 1954 trial of Sam Sheppard, three Cleveland, Ohio newspapers published all of the names and addresses of the prospective jurors. Attorneys said the potential jurors received anonymous telephone calls, letters and threats and the jurors got so much publicity that they were were treated as minor celebrities. The pretrial publicity and the circus atmosphere in the courtroom lead to a U.S. Supreme Court ruling that forever changed the rules of press behavior and courtroom decorum.

Over the years, judges have attempted to withhold juror information, close courtrooms to the press and public. The Reporter's Committee for Freedom of the Press says the use of anonymous juries -- whose individual identities are kept completely secret, even from the parties to a case -- is on the rise.

Reporter Brown says she has gotten a torrent of negative e-mails and phone calls since the story appeared Sunday. "One came from the son of one of the jurors," she said. She says the caller expressed concern about his father's safety. But in follow-up emails, the same man said he was not really concerned about his father's safety, but he said he was reacting to his surprise of seeing his father's name and hometown in the paper.

Brown said several callers wanted to know her home address and phone number.

Editor Smith says despite the public reaction, the free flow of information is worth the uproar. "We've covered this issue before. I've written about it before and still many readers are aghast. I don't think the press generally has done a good job in convincing the public of the importance of public juries."

Here are the thoughtful comments of some of my friends ...

• If absolutely compelled, you can publish demographic info without using jurors names. But the public benefit of publishing is small compared to the potential harm. There is no reason to do this, other than to say you can.

• How important was the timing of the article? If this was printed the day after a verdict wouldn't it have been just as timely and pertinent? In that case, the public good would be served by an open preceding and the jury/defendant would be spared any attempts to sway the decision making.

No one seems to take issue with cloistering a jury to prevent outside tampering. The idea that the jury is making it's decision soley based on the cases presented is an important (though idealistic) one.

• My gut reaction is that this is an issue of privacy. It's one thing if a person breaks a law and has name, age, place of work, address, etc. published. It's another thing if you're fulfilling your mandatory civil duty and suddenly, you're front page news. If we had a volunteer jury system, that would be one thing. But we _have_ to serve. And because it's obligatory, I have a real issue with a news outlet making the call on whether it's ok to reveal my personal information. As a private citizen who, under the law, has to serve, why should I have my personal details splashed across the front page of a paper when I'm complying with the law?

And what exactly qualifies the Connecticut Post to make the call as to whether publishing juror names would put those jurors' safety at risk?

I don't think jurors count as public figures. And I think the Connecticut Post overstepped its bounds here. What is the value in publishing these names? Does publishing this personal information serve the public good?

I think it was last year, the Phila. Inquirer published the names, photos and parishes of all the Phila. Archdiocesan priests who had been accused of sexually abusing children. This? Is a public service in my mind. These were men who broke the law, posed a threat to the innocent and defenseless and were permitted to hide behind their office for years.

Jurors? Not so much. If every case were decided by a jury of one, yeah. I might be interested to know who is effectively deciding legal precedent. But the system is designed to be collaborative and to (in theory) involve a cross-section of citizens that should provide a reasonable expectation of a fair trial.

If I think a juror is unfit to serve, what exactly am I going to do about it? I have no say and no recourse. It's the prosecutor's and the defender's jobs to vet these people.

If I find out a pedophile lives down the street, I can better protect my kids by preventing their having any contact with that person. And by committing a crime, that person has given up some expectation of privacy. A juror should not have to relinquish his/her expectation of privacy as a private citizen for doing his/her civic duty.

• Here are my thoughts ... As someone who served on a jury in a murder trial, I would NOT want to see my name and address in print. Nor do I believe that this serves the public good. During selection I saw person after person seemingly lie to try and get out of jury duty. One of the jurors who ultimately was selected revealed that she lied during selection hoping she'd be excused. [Incidentally, she was warned about her behaviour during trial and was almost found in contempt.] If people knew of this stipulation, that their personal info would be revealed, I could only imagine how many more people would try to dodge their civic duty. And it's not to me about accountability or a lack of it. I took my duty ultra-seriously and despite the frustrations and lost time and occassional boredom, I felt proud in a weird way to contribute to our democracry. So you don't have to publish my name to tap into my ethics and honour.

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