Move toward anonymous juries gets boost from Fla. appeals court

Wednesday, February 15, 2006

Seemingly lost in a sensational murder case that featured a videotaped abduction, a fight over crime-scene photos and live television coverage was an appellate court decision that could make it easier for trial judges across the country to seat anonymous juries.

The decision in The Sarasota Herald-Tribune v. State was announced by Florida's 2nd District Court of Appeal on Nov. 17, 2005, the same day the jury at issue returned guilty verdicts against Joseph Smith for the February 2004 kidnap, rape and murder of 11-year-old Carlie Brucia in Sarasota. The case drew national attention when police trying to find Brucia released a videotape of her abduction taken by a security camera at a car wash. Brucia’s half-naked body was found four days later a few miles from the car wash.

Photos and a video of the crime scene were at the center of one of the battles between the news media covering the case and trial judge Andrew Owens Jr. Although the photos and video were introduced as evidence in the trial, Owens ruled the media could not view or publish them.

Three newspapers and a television station appealed that ruling, and the 2nd District reversed Owens in part, saying the media could view the evidence but could not publish, broadcast or post it on the Internet. Florida’s attorney general then asked the Florida Supreme Court and the U.S. Supreme Court to overturn the appellate court’s ruling, but both courts refused.

Owens’ concern about news coverage first surfaced in an order he entered more than two weeks before the trial began. In the order, Owens barred court personnel from releasing the names, addresses and other identifying information of potential jurors, prohibited the media from publishing names and addresses of potential jurors, required that prospective jurors and the jurors ultimately selected be identified only by an assigned number and barred the media from photographing or videotaping the faces of prospective or seated jurors.

The Sarasota Herald-Tribune, Tampa Tribune and WFLA-TV challenged Owens’ order, claiming it violated their First Amendment rights and constituted an improper prior restraint. Interestingly, however, they told the appellate court they did not intend to publish jurors’ names and addresses or release photographs of them during the trial. Therefore, the appellate court noted, the appeal was filed “more as a matter of principle and as academic exercise rather than from a genuine need and desire to publish information [the media] has determined to be vital to its readers or viewers.”

The appellate court also noted the appeal had not been filed until after “the jury had been selected and had already been promised by the trial court that its privacy would be protected” and after Owens had decided to not sequester the jury.

Still, the appellate court reversed parts of Owens’ order. The trial judge, it said, could not constitutionally prohibit the media from publishing information about jurors that reporters learned from sources outside the courthouse. Nor could the trial judge restrict the publication of information about or photographs of jurors after the trial had concluded. Finally, the appellate court said, Owens — after the jury was seated — could not prohibit the media from contacting or publishing information about persons who had been called but not chosen for the jury.

Though the appellate court’s decision was a partial victory for the press, the part that was a defeat is more significant. No doubt aided by the media’s curious admission that they wouldn’t use the information anyway, the appellate court crafted a defense of anonymous juries that will likely be used against more aggressive members of the media for years to come.

Not surprisingly, the court’s defense of anonymous juries includes words that have made First Amendment advocates cringe for more than 10 years: “Since the trial of O.J. Simpson,” the court said, “we have known that judges, lawyers, and expert witnesses can easily become household names and celebrities by virtue of a well-publicized trial.”

When courts facilitate this publicity by allowing live television coverage, the 2nd District Court reasoned, they should protect jurors from media attention. “[C]itizens who are compelled to serve as jurors would seem to be entitled to some degree of protection when the government partners with the media to transform a courtroom into a live television show, supplemented by a large number of multimedia internet sites.”

The notion that live coverage transforms a trial into a television show was central to the court’s ruling. “The cable television industry has come to realize that the public, including people far from Sarasota County, Florida, will view a trial not merely to assure that both sides receive a fair trial, but as a form of informative entertainment,” the court said. “Mr. Smith’s trial, however, from his perspective, is not a matter of informative entertainment. He has a constitutional right to a fair trial by a jury uninfluenced by matters or people outside the courtroom.

“Likewise, the jurors did not come to the courthouse to be celebrity guests on a reality TV show. Because they are adults with drivers licenses, they received an order of court compelling them to appear. They are obeying the law and performing a valuable public service that many others shirk.”

Therefore, the court concluded in language that undoubtedly will be cited again and again to support anonymous juries, seating unidentified jurors in highly publicized cases is both necessary and fair.

“When a trial becomes such an extraordinary event, the trial court often needs to protect the jury from outside influence,” the appellate court says. “Without some protection during the trial, jurors’ names and faces would be readily recognizable by strangers who see them at the gas station, grocery store, or a restaurant. The likelihood that one or more persons would try to influence their decisions, innocently or otherwise, seems very high.”

The court’s conclusion, however, is flawed in at least two respects. First, a “seems very high” standard is hardly one that supports the denial of important constitutional rights. What should be required instead is evidence — evidence that identified jurors in high-profile cases often are contacted by strangers, evidence that jurors have been influenced by such contact and evidence that the risks associated with such contact are more significant than the risks associated with permitted contact between anonymous jurors and their family, friends and co-workers.

No such evidence was presented to the court in this case. Realizing this, the court relied on the 3rd District appellate court’s 1998 ruling in Sunbeam Television Corp. v. State, in which the court stated that juror anonymity would protect jurors from “advice,” “tips” and unwanted comments and opinions from strangers. The court in Sunbeam Television Corp., however, also was not relying on evidence but instead cited only the trial judge’s general concerns about possible efforts to contact identified jurors. Judges therefore are relying only on assumptions and unsupported biases when they determine anonymous juries are necessary.

Second, the notion that jurors’ identities should be protected because jurors are involuntary participants in the process is a dangerously expansive view of the privacy rights of persons involved in highly publicized cases. That logic, for example, can just as easily be applied to a reluctant or fragile witness, whose privacy likely is even more at risk than a juror’s. After all, if a juror who appears in response to a jury summons is entitled to anonymity, why isn’t a witness who appears in response to a subpoena? And why isn’t a defendant — criminal or civil — who probably also considers himself an involuntary participant in the process?

One would like to believe that, logical consistency aside, courts seating anonymous juries will not start extending that protection to witnesses and parties. Surely, we’d like to believe, judges see that our open judicial system cannot function if witnesses and parties join jurors behind the cloak of secrecy. However, as long as we allow judges to base these decisions on assumptions — whether they are assumptions about outside influences or about the fragility of those involved in the process — our ability to protect an open judicial system is at considerable risk.

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