October/November 2010

New Rulings on Disclosure of Juror Identity

Holland & Knight Newsletter
Gordon P. Katz

They are two high profile criminal cases. In one, the reporter wants to write a human interest story on the jurors while the case is in progress. In the other, the verdict has now come in. The reporters for each case were assigned a story on jury deliberations.

Two recent decisions illustrate the method of analysis courts employ in permitting or restraining disclosure of jurors’ names. In doing so, the two cases make clear that obtaining jurors’ identities after-trial is a much easier task than obtaining public disclosure of jurors’ names before the verdict has been returned.

In the first case, U.S. v. Blagojevich, 2010 WL 2934476 (E.D. Ill. July 26, 2010), Judge James B. Zagel in Chicago considered a request by a consortium of media representatives which attempted to intervene in the Blagojevich public corruption trial in order to seek immediate access during the trial to the names of the jury. Judge Zagel quickly denied the motion for intervention and for disclosure, explaining, among other things, that withholding the jurors’ names was necessary to protect the jurors from outside influence, and, in turn, to protect the defendants’ right to a fair trial.

On appeal, the Seventh Circuit reversed and remanded Judge Zagel’s decision, which, while denying disclosure during trial, had suggested that the issue of juror disclosure should be deferred until trial had concluded. While the Seventh Circuit did not endorse an absolute right to access to the names of jurors during trial, it required that the trial court hold a hearing so the parties could present evidence and propose alternatives to withholding disclosure during trial.

On remand, and after the required hearing, Judge Zagel again denied the intervenors’ motion for immediate access to the jurors’ names during the still pending criminal trial. While Judge Zagel ordered disclosure after the trial had concluded, Judge Zagel still refused to permit release of the jurors’ names during trial. Central to the decision was (1) Judge Zagel’s identification of the constant and large number of “gadfly,” “crank,” and, to some degree, abusive and threatening communications he personally had received by mail, telephone and electronic media during the lengthy criminal proceeding against the former Illinois governor; and (2) his determination that it would be inevitable that the jurors, if their names were disclosed, would receive the same.

Protection of the jurors’ identity during trial, he ruled, was necessary in order to shield the jurors from such outside influence, personal harassment and distraction from the hard work of performing their tasks as jurors.

In the second recent case, Commonwealth v. Gadson (Unpublished, August 17, 2010), decided in Boston by Massachusetts Superior Court Judge Thomas Connors, the issue of post-trial disclosure of juror identity arose after a confusing verdict was returned in a well-publicized criminal case involving the death of a minor child and resulting involuntary manslaughter charges against the child’s mother.

The day after the verdict, The Boston Globe sought access to the list of names of the jurors who had been impaneled for trial of the case.

The defendant opposed disclosure, arguing that media coverage would lead to inquiries of the jury members as to how the jurors applied the trial evidence to the five specific charges in the indictment. The court, however, rejected the argument.

The court noted that established Massachusetts law provided that, “in the absence of compelling circumstances … such as juror safety,” denial of a post-trial juror disclosure request is inappropriate. In this case, the court acknowledged that disclosure might intrude upon the jurors’ privacy. That, however, was not enough to bar release of the jurors’ names once trial was over, and, accordingly, the court granted the Globe’s motion for access to the jury list.

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