Future shock: A worst-case courtroom scenario

Wednesday, December 2, 1998

Before we blister our hands high-fiving over the Wisconsin Supreme Court’s recent rejection of a rule that would have provided for anonymous juries in all cases, we should remember the proposed rule was so sweeping that it would have denied juror information even to the lawyers trying the case.

In today’s environment, however, a scaled-back version of the rule — one that provides information to the lawyers but denies it to the public and media — may not be so easily defeated. And from there, we’re only a short slide away from picking up the newspaper (or clicking the mouse) and finding a story like this one …

New Washington state law insures privacy of trial witnesses

SEATTLE (Dec. 2, 2008) — In a move that stunned the media and sent shock waves through the nation’s judicial system, Washington Gov. Bill Gates today signed legislation barring the public disclosure of the names of witnesses in all criminal and civil trials.

“Witnesses, like jurors, have privacy rights, and we have a duty to protect those rights,” said Gates, whose campaign pledge to restore personal privacy resonated with voters here. “Witnesses often are reluctant participants in our judicial system, and we should do everything in our power to protect them from media stakeouts, ambush interviews and stories that pry into their personal lives.”

The new Washington state law makes it a felony for any lawyer, party or court officer to disclose a witness’ name, address or other “identifying information.” The law also gives trial judges the power to close courtrooms if a witness reasonably believes that testifying in open court would allow for the disclosure of his or her identity. Under the law, witnesses also can ask to testify behind “witness privacy screens,” which now must be installed in all Washington courtrooms.

“We’re surprised and extremely disappointed,” said a representative of one Seattle-based media group. “This new law reverses the presumption of openness, which until recently had been the hallmark of our judicial system. I’m sure we’ll challenge the constitutionality of the legislation.”

While the Washington state law is the first of its kind, its supporters claim that it is nothing more than a logical and appropriate extension of the privacy protections now afforded jurors in 27 states.

“Many judges and now more than one-half of the states believe that jurors should not be forced to abandon their anonymity when they cross the courthouse threshold,” said a spokesman for the National Council for Personal Privacy. “Why should witnesses be asked to do any more? They have the same privacy rights and are probably more at risk for media and other surveillance than jurors, who do not have a personal involvement in the cases before them. These privacy rights are under constant attack and must be defended — look at how the media behaved in the Clinton case.”

Media and legal system observers point to the Arkansas perjury trial of former President Clinton as the point after which anonymous juries became the rule rather than the exception. During and after that trial, jurors complained to the presiding judge that reporters were staking out their homes, interviewing their friends and families and probing into their sexual histories. After the trial ended in a hung jury, some analysts speculated that the jurors were so intimidated by the media frenzy that they were unwilling to reach a verdict.

“Were there excesses in the reporting of the Clinton trial? Of course there were,” conceded a Georgetown journalism professor. “But there is absolutely no evidence that these excesses affected the jurors’ deliberations or their view of the case presented them. If they were so traumatized by this process, why did all of them hold press conferences after the mistrial was declared? Why did eight of them later do one-on-one interviews for national news shows? Why did five of them write books? Hell, one of them even got his own talk show on CNBC.

“Juror anonymity — and now witness anonymity — are significant steps toward a completely closed legal system,” the professor said. “What happens to the accountability of jurors and witnesses if they can hide behind screens or in closed courtrooms? Their decisions and their testimony, after all, dramatically affect the lives of the parties before them and, in some cases, the lives of countless other people. The unfortunate truth is that jurors, witnesses and the parties sometimes have to pay a small price for an open judicial system. The price that society pays for an anonymous system, however, is considerably higher.”

Anonymous juries became popular with judges in the late 1990s, especially after the celebrated murder trial of former football star O.J. Simpson. Unable to control how the media reported information in high-profile cases, judges instead decided to limit the information available to journalists. Media appeals of these secrecy orders rarely were effective, and the U.S. Supreme Court so far has refused to hear the issue.

The first state to seek complete juror anonymity was Wisconsin, which considered a blanket confidentiality rule in 1998. That proposed rule, which would have prevented even the lawyers in the case from learning jurors’ identities and work histories, was struck down by a unanimous state Supreme Court. Less than a year later, however, Wisconsin adopted a modified version of the rule, which required anonymous juries but allowed limited personal information about the potential jurors to be given to the lawyers involved.

Since that time, 26 other states have embraced juror confidentiality, and 14 others are considering anonymity proposals. Interestingly, neither California nor Arkansas has entertained jury secrecy legislation.

“Those of us who have lived through these celebrated trials know that they are aberrations,” said the president of the California Bar Association. “We know that the other 99.99 percent of cases are heard and decided without incident and without even a suggestion that jurors must be protected from public scrutiny.

“Our open judicial system has thrived for more than 225 years and is the envy of every other nation in the world,” she said. “For the life of me, I can’t understand why some people are so willing to so easily give that up. If a foreign dictator appeared on our doorstep and demanded that we institute a closed judicial system, we’d go to war over it. If jurors and judges in a handful of cases complain about media coverage, however, our first response is to make the system more secret.

“I simply don’t understand it. And it scares me to death.”

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.