7th Circuit offers wise caution against secret juries

Tuesday, July 20, 2010

From an open-courts perspective, the recent decision in USA v.
isn’t a cloud with a silver lining. It’s a silver lining with a

In Blagojevich, a 7th U.S. Circuit Court of Appeals panel held that
the judge hearing the corruption trial of former Illinois Gov. Rod Blagojevich
erred when he ordered that the jurors’ names be kept confidential from the
public and news media until after the trial. Before such a ruling can be made,
the court said, a trial judge must make a finding, based on evidence, that such
confidentiality is necessary, and determine that no other option exists to
protect the jurors from outside influences.

In an era in which trial courts are impaneling anonymous juries with alarming
frequency, the 7th Circuit’s decision is a welcome reminder that judges should
at least pause before promising jurors confidentiality. However, an unusual
attack from 7th Circuit judges not involved in the decision threatens to
distract from the importance of the ruling and become the part of the case that
trial judges remember.

The attack was led by Judge Richard Posner, the prolific and well-respected
jurist whose name is synonymous with the 7th Circuit. Within hours of the
unanimous three-judge panel's July 2 decision, an unidentified judge (presumably
Posner) requested that the entire court rehear the case and called for a vote on
the request.

Though parties unhappy with a panel decision often ask the full court to
rehear the case, it's rare that another judge makes such a request. Indeed, in
reviewing the history of such requests, Posner could find only one other time
that a judge in the 7th Circuit sought en banc review, in 2005. Nevertheless,
the law appears clear that the request was proper.

After receiving the request — but before voting on it — the judges circulated
comments within the court on the panel’s decision. After receiving those
comments, the panel issued an amended opinion on July 12. The panel, however,
did not circulate the amended opinion before issuing it, and its amendments did
not satisfy Posner and three other judges. The votes of those four judges,
however, were insufficient to require a full-court hearing.

Obviously frustrated, Posner wrote an 18-page opinion dissenting from the
denial of the en banc request. In it, he called the panel’s analysis “unsound
and confusing” and criticized the panel for imposing new requirements on judges
who wish to keep jurors’ names confidential.

Those requirements are based on the seemingly unremarkable presumption that
jurors’ identities — like most other aspects of court proceedings — are presumed
to be available and accessible to the public and press. In its original ruling
the panel recognized that this presumption could be overcome, but it held that a
judge or party seeking to overcome it must satisfy procedural and substantive

Procedurally, a judge must conduct a hearing before ordering that jurors’
names be kept confidential and must allow the press to participate in the
hearing. In the Blagojevich proceedings, the trial judge denied the news media’s
motion for permission to challenge the confidentiality order, saying he already
had promised the jurors that their names would not be released until the trial

Substantively, a judge must base a confidentiality order on evidence, must
consider options less drastic than confidentiality and, if ordering
confidentiality, must make specific evidentiary findings that confidentiality is
necessary.  In ordering that the Blagojevich jurors’ names not be
disclosed, the trial judge relied only on his fear (and assumption) that jurors
during the trial would be peppered with e-mail and instant messages regarding
the case.

“Because the judge acted without evidence … we do not know the answers to
some potentially important questions,” the 7th Circuit panel said. “Have
jurors in other publicized cases been pestered electronically (email, instant
messaging, or phone calls), or by reporters camped out on their doorsteps? If judges in other high-visibility cases have told the jurors to ignore any
unsolicited email or text messages, have those instructions been obeyed? If not, do any practical alternatives to sequestration remain?”

While noting that “[w]e do not imply that any of the subjects mentioned above
is indispensable to a decision,” the court emphasized that “a judge must find
some unusual risk to justify keeping jurors’ names confidential; it is
not enough to point to possibilities that are present in every criminal

Because the Blagojevich trial judge had not conducted a hearing or heard
evidence, the court remanded the issue for further proceedings. The trial judge
is scheduled to conduct the hearing on July 23.

Posner disagreed with virtually every aspect of the panel’s opinion, arguing
that trial judges are entitled to base many decisions on experience and common
sense rather than on evidence, that the panel did not take sufficient account of
jurors’ privacy interests, that the public has limited interest in jurors’
identities and that no presumption of access attaches to jurors’ names.
Throughout his dissent, Posner displayed contempt for today’s news

In the first sentence of his opinion, for example, Posner cited “the
widespread mischief that is a daily if not hourly occurrence on the Internet.”
He later shook his head at “the unusual attention-getting conduct of the
principal defendant and his wife” and observed that anyone doubting the
high-profile nature of the case “has only to do a Google search under
‘Blagojevich.’” He described e-mail and text messages as “electronic harassment”
and asserted, “Most people dread jury duty — partly because of privacy

Indeed, Posner apparently would prefer confidential juries in all
high-profile trials.

“A degree of anonymity safeguards jurors from intimidation during trial,
promotes vigorous debate in the jury room, allows jurors to focus on the facts
rather than on how the public might perceive their verdict, reduces jurors’
anxiety (which may improve jury deliberations), and makes people less reluctant
to serve on juries,” Posner wrote.

Ultimately, the subject about which the panel and Posner most disagree is
about whether the openness of our court system demands known and accountable
jurors or whether, instead, our system can and should accommodate secret juries.
At least for the moment, the panel’s value of openness has prevailed.

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