Court vindicates public defender who balked at sealing of juror questionnaires
Finding that the First Amendment trumps privacy concerns, a California
appeals court reversed contempt charges against a public defender whose office
refused to turn over juror questionnaires to the court for sealing.
Last March, Eliel Elpidio Brown was convicted of second-degree murder
in the Alameda County Superior Court after a 17-day trial. Before the trial,
every member of the jury pool was required to fill out an eight-page
questionnaire to assist the attorneys with juror selection.
The questionnaires contained detailed information about the
prospective jurors, such as work experience, religious affiliations and
After the trial court sentenced Brown on May 18, Judge Roy Hashimoto
asked the deputy public defender who represented the defendant to return copies
of the juror questionnaires.
The attorney from the public defender’s office refused, saying that
he had highlighted and made notes on the pages. The attorney claimed the pages
were attorney work product that needed to be preserved for Brown’s counsel on
appeal. (Brown has appealed his murder conviction).
On May 25, the trial court held a hearing at which time the head of
the Public Defender’s Office of Alameda County, Daine A. Bellas, testified.
Bellas testified that her policy was not to turn over any part of the public
defender files, which she described as “sacrosanct” and said she was
“loathe to begin separating out from our files portions that under the law we
believe are a rightful part of our public defender case file.”
Hashimoto then held Bellas in contempt of court. Both sides agreed
that because the questionnaires were withheld under her policy, Bellas was the
proper person to be subjected to the contempt order.
On appeal, the California Court of Appeals, First Appellate Division,
reversed in Bellas v. The Superior Court of Alameda
The California appeals court cited the U.S. Supreme Court’s 1984
decision Press-Enterprise Co. v. Superior Court of
Cal. for the proposition that jury selection proceedings are
presumed to be open to the public.
“The presumption of openness may be overcome only by an overriding
interest based on findings that closure is essential to preserve higher values
and is narrowly tailored to serve that interest,” the appeals court wrote in
its Dec. 18 opinion.
The appeals court also cited California case law for the proposition
that juror questionnaires should be as “fully accessible to the public” as
any other phase of the trial, including the oral process of jury selection.
“It is enough that these decisions make clear that the content of
juror questionnaires are publicly accessible,” the appeals court wrote,
“unless the reason for ordering them sealed outweighs the presumption of open
access to records of judicial proceeding, the limitation on access is tailored
as narrowly as possible, and the trial court’s findings are articulated with
enough specificity that a reviewing court can determine whether a
confidentiality order was properly entered.”
Applying this standard, the California appeals court noted that
Hashimoto failed to weigh “the necessity for sealing against the exigencies
of public access.”
The appeals court noted that the California legislature had shown
concern over juror privacy, but stated that “the First Amendment prohibits
the [indiscriminate] sealing of these questionnaires.”
The court also noted the conflict between privacy and open access,
writing: “The otherwise understandable desire to preserve juror privacy
conflicts with the constitutional mandate requiring public access to most
information about the private lives of potential jurors.”
A possible solution to the conflict, according to the appeals court,
is to state in “unambiguous language” on juror questionnaires that the
information will become public record, and provide the alternative that jurors
can orally respond to questions about “sensitive personal data” in the
judge’s chambers with the attorneys present.
“The First Amendment of the United States Constitution guaranteeing
public access to judicial proceedings overwhelms any countervailing privacy
interests of prospective jurors as to the content of questionnaires they
complete,” the appeals court wrote.