Locking out the public: the secret selection of Martha Stewart jury

Friday, February 27, 2004

A jury soon will decide the outcome of Martha Stewart’s criminal case, but there’s already been an important verdict.

In a pivotal ruling, a federal appellate court has concluded that the trial judge had no business closing the jury-selection process in this highly visible case involving stock trades and allegations of fraud.

Jury selection usually is done in open court. Members of the press and public can watch prospective jurors being questioned about their backgrounds and their biases. With the fate of the defendant in the balance, this segment of the trial is as worthy of public scrutiny as any other.

That didn’t prevent prosecutors from seeking to hold those jury interviews behind closed doors, a request Judge Miriam Goldman Cedarbaum granted.

Her reasoning: Potential jury members would be more candid without the press present. Cedarbaum also was irked by a jury pool member who apparently posted a question from the jury survey on the Internet.

In addition, the judge – who said she had experience in high-profile cases – seemed unsettled by cable television and newspaper pundits.

There is “something unique about this case because there has been so much public pronouncement of opinions that different people have been exposed to. … I have read commentators who have already made up their minds, who are read by potential jurors,” Cedarbaum said.

In essence, the judge contended that she could close the jury proceedings in the interest of preserving a fair trial, in large part because the case had already had so much publicity. In her words, the case had generated “an extraordinary interest quite beyond the public’s right to know.”

Her interpretation would mean that the jury selection in any case that generated significant public interest could be closed. The irony is that few seek to attend jury selection in cases that haven’t generated significant public interest.

The 2nd U.S. Circuit Court of Appeals acknowledged that there was precedent for closing the jury-selection process, but said it was limited in scope and could be applied only in particularly sensitive matters, including questions of jurors about their possible bigotry.

The appellate court pointed out that the Supreme Court has found that the press and public have a presumptive right to attend criminal trials. Under the Sixth Amendment, defendants have a right to a fair trial and the presence of the public helps ensure that. In addition, the First Amendment provides that the press has a right to attend criminal proceedings in order to fulfill its watchdog role.

The appellate court didn’t buy Cedarbaum’s justification that the presence of reporters would make it less likely for jurors to admit that they had a bias against Martha Stewart. As the appellate court noted, Stewart and her co-defendant Peter Bacanovic were both present during the selection process.

“We find it difficult to conceive of a potential juror who would be willing to reveal a bias against the defendants in their presence, but not in the presence of reporters,” Circuit Judge Robert Katzmann wrote in the court’s opinion.

Cedarbaum’s decision to treat the Stewart case differently is part of a disturbing trend of judges overreacting to the fame and fortune of defendants. The rules that apply every day in courtrooms across America are sometimes set aside for celebrity defendants.

For example, in actor Robert Blake’s murder case, the judge began jury selection without notifying the public. In the Kobe Bryant rape case, documents that are normally public records were sealed.

Several factors appear to be influencing judges’ decisions. For some, this is the highest-profile case they will ever handle, and they want to make sure it doesn’t get out of their control. Everyone remembers Judge Lance Ito and his travails in the O.J. Simpson criminal murder case. It’s Ito’s misfortune that he now symbolizes inept courtroom management.

Secondly, there seems to be genuine resentment on the part of some judges toward the news media. When your daily job is the efficient administration of justice, fevered news media can feel intrusive and disruptive. The impulse is to put a lid on information rather than let it flow freely.

The real risk is that in trying to assert greater control, judges actually reinforce the public sense that the system works differently for the wealthy and famous.

The way to build confidence in the judicial process is through the even-handed administration of justice and public access to the entire trial, from beginning to end. When it comes to a defendant fighting for his or her own liberty, no segment of the trial is preliminary or inconsequential. The procedures must be fair, and the process must be public.

(See Newsweek's interview with Ken Paulson about Martha Stewart and the First Amendment.

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