Banning post-verdict juror interviews a bad policy

Friday, February 27, 1998

It’s a recurring scene on the evening news. A decision is rendered in a high-profile trial and minutes later the cameras focus on any and all jurors willing to tell “their story” to the masses.

We’ve seen it with the O.J. Simpson and Timothy McVeigh trials, and even this week when TV talk show queen Oprah Winfrey was exonerated of charges she and her producers libeled the beef industry. Jurors are there to let us in on the behind-the-scenes action and deliberations, and the workings of our criminal justice system.

But interviews with jurors in Louisiana may land the media in legal hot water. Last fall a Circuit Court of Appeals upheld a district court order in that state which limits media access to jurors following completion of a criminal trial.

Banning post-verdict juror interviews violates the media’s free press rights and jurors’ free-speech rights. More than 25 years ago, the U.S. Supreme Court warned that “without some protection for seeking out the news, freedom of the press could be eviscerated” without such access.

The U.S. Supreme Court now has a golden opportunity to reverse a lower court ban on juror interviews and send a strong message that press freedoms will be protected.

Last week, a Louisiana newspaper, The Advocate, filed an appeal, asking the Supreme Court to reverse the 5th Circuit Court of Appeals’ October 1997 decision in U.S. v. Cleveland.

In that decision, the 5th Circuit failed to heed the Supreme Court’s long-standing warning by upholding a district court order limiting media access to jurors.

The controversy began after a six-week, highly publicized corruption trial in which six defendants, including two former Louisiana state senators, faced racketeering and other related charges for attempting to influence legislation affecting the video poker industry.

Following the verdict, the judge told the jury that “absent a special order by me, no juror may be interviewed by anyone concerning the deliberations of the jury.”

Area newspapers challenged the order, contending it infringed on their First Amendment free-press rights. However, the trial judge refused to change the order, and the 5th Circuit agreed.

The 5th Circuit justified its restriction in part by saying the press’ constitutionally protected right to gather news was not violated because “there was a great amount of media coverage of the trial from start to finish.”

This rationale should cut the other way. If a case has heavy media coverage, people want to know as much about it as possible. The public has a great thirst for knowledge about cases involving public officials charged with corruption.

The Reporters Committee for Freedom of the Press pointed out in a friend-of-the-court brief before the 5th Circuit that: “This case implicates the veracity of elected officials and the integrity of the legislative process. Public access to the perceptions and thought processes of the jurors can begin to mend the torn fabric of public trust in the government.”

Ironically, the appeals court also justified its infringement on the First Amendment rights of the press, jurors, and the public by claiming it was actually protecting freedom of speech. The 5th Circuit ruled that the order limiting juror interviews was “narrowly tailored to prevent a substantial threat to the administration of justice—namely, the threat presented to freedom of speech within the jury room by the possibility of post-verdict interviews.”

Unfortunately, censors often employ this device of turning the First Amendment on its head and masquerading as the true defenders of free speech.

The federal government, for instance, used the same argument in the Internet indecency case, claiming that offensive and indecent speech transmitted over the Internet would scare people away from the new medium and lead to suppression of speech. In Reno v. ACLU, the U.S. Supreme Court squarely rejected this specious argument, finding it “singularly unpersuasive.”

Those who support heavy restrictions on hate speech make a similar argument. They contend that hate speech intimidates its victims into silence and that restricting hate speech will actually protect the free-speech rights of those damaged by verbal assaults.

The ostensibly appealing, yet devious argument used by the 5th Circuit should be roundly criticized by all who are genuinely concerned with free-speech and free-press rights. Had the jury members in this particular case known their verdict would be closely scrutinized by the public, it seems logical that they would only have taken more seriously (or at least just as seriously) their civic responsibility to deliberate and decide the case based solely on the evidence and applicable rules of law.

Furthermore, many jurors in high-profile cases do not seem intimidated by media interviews. If anything, jurors in several of these cases—such as the O.J. Simpson and Menendez brothers criminal trials—have profited from their jury duty by signing book deals, giving radio interviews and publicizing themselves on TV talk shows.

Attorney Jack Weiss, who represents the media in the Louisiana case, aptly stated: “Pick up a newspaper; turn on your television; go to your local bookstore.You’ll see jurors talking to reporters. This decision is out of line with what is going on in the rest of the nation.”

Allowing post-verdict jury interviews will only create a greater forum for debate about the criminal justice system. The public will better understand jurors’ interpretation of evidence, and attorneys and judges will gain needed insight on their performances and conduct.

The Reporters Committee persuasively stated in its friend-of-the-court brief that: “post-verdict interviews educate the public about the nature of jury duty, the need for all citizens to serve on juries, and the functioning of the judicial system overall.”

A decision to withhold information about the workings of the criminal justice system from the public does nothing to bolster waning public confidence in the administration of justice. And it eviscerates the constitutional right of newsgathering.

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