Secret juries threaten integrity of judicial system

Thursday, December 30, 1999

It’s no wonder Illinois Public Act 91-0321 didn’t make headlines.

Twenty-six pages long, the act contains a potpourri of changes to Illinois
laws governing juries. Starting Jan. 1, counties can raise the daily amount paid
to jurors above $15.50 if they wish. Jurors can recoup child-care expenses
related to their jury service. Fees for demanding a jury trial are raised from
$50 to $62.50 in some cases. And, oh, by the way, judges now can impanel secret

The juror anonymity provision is the last amendment in the act, buried on
page 26, short and to the point: “A judge may prohibit the release to the public
of the name of any member of a jury … if the judge finds that there would be a
reasonable threat of harm to the juror if his or her name were released.”

Even at their best, laws and court rulings permitting anonymous juries are
dangerous. Most importantly, jury anonymity threatens the presumption of
openness that has, until now, been the bulwark of our judicial system. In the
past, a party or judge who wanted to close all or part of a judicial proceeding
had to meet a heavy evidentiary burden. As many juror anonymity laws and rulings
are written, however, either the need for secrecy is presumed or, as in the
Illinois act, the standard for closure is diluted from compelling to

Second, jury secrecy laws and rulings are based on theories that have
far-reaching and ominous implications. The premise behind the Illinois law, for
example, is that jurors are entitled to anonymity if a reasonable threat of harm
exists. In other cases, judges have allowed juror anonymity if they believed
jurors would be harassed by the media. If these theories take root in our
judicial system, their reach almost certainly will someday extend to witnesses,
who are even more likely to be threatened or harassed. Will judges then start
closing courtrooms in order to protect the identity of witnesses? If so, can
completely secret trials be far away?

Third, laws and rulings creating juror privacy erode juror accountability.
Jury verdicts in many cases have life-altering consequences. Jurors accordingly
must feel — and bear — a responsibility for their decisions. Juror
accountability already has been diminished by secret deliberations and the
reality that, in most cases, jurors never will need to explain their verdicts.
Shrouding jurors in additional secrecy diminishes their accountability even

The new Illinois act suffers from these defects and more. Unlike some of the
more radical juror anonymity provisions, the act still requires that jurors be
identified to the parties and their counsel. While this restraint is admirable,
it guts the act of any logic.

From whom, for example, would a juror most likely feel a reasonable threat of
harm? From a member of the public or from the accused drug lord or gang leader
sitting at the defense table? Under the act, the criminal defendant has free
access to the jurors’ names and can without penalty disclose them to anyone he
or she wishes. Realistically, the only interested people who will be denied the
jurors’ names will be reporters, which likely is one of the act’s desired

From a practical standpoint, the act also threatens a defendant’s right to a
fair trial. No matter how many times a judge tells a jury that the defendant is
to be presumed innocent, the judge shatters that presumption by invoking the
act. When a judge applies the act, he or she sends a clear message — the
defendant is dangerous. Fair trials in this environment seem almost impossible
to achieve.

Perhaps the most troubling aspect of the new Illinois law is that criminal
statutes already prohibit all of the feared conduct. Jurors may not be harassed
or threatened. Like the rest of us, they may not be beaten, robbed or killed.
Their houses may not be burned down. These criminal laws and the penalties that
accompany them have for two centuries deterred threats and actions against
jurors. No evidence exists that threats against jurors are increasing. Nor does
any evidence exist that the act, which contains no penalties, will afford jurors
any additional protection.

Instead, the act seems designed only to permit judges to introduce secrecy
into what had been open courtrooms. That, unfortunately, is the reasonable
threat of harm in Illinois.

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