Court rule opens jury lists, debate

Are jurors' names public information? Or can this information be withheld from the media and general public? Should jurors be subject to a reporter's phone call? The Missouri Supreme Court gathered a committee representing a cross-section of Missouri's legal community, including local attorney James Wyrsch, and attempted to address the privacy of the state's jurors by formulating Court Rule 27.09, which closed all jury lists and questionnaires following voir dire. That rule was to be in effect as of January 1, 2003.

A protest against the rule ensued, led by attorney Jean Maneke, arguing the jury lists were public information and should be open and accessible to the public. The Court met with those who protested the rule, and amended 27.09 December 2002. The amended rule held closed jury questionnaires, but the lists were now available to the public. The rule was in effect January 1, 2003, making it the first state rule affecting jury information.

The 16th Circuit Court, like some other circuits, has had such a rule for quite some time. The local rule closes all information, leaving Harlene Hipsh, counsel to the court's administrator, to formulate a committee to revise its rule to match the state rule. But the state rule deals only with criminal cases. Should the local rule also encompass civil cases?

Joined with Jeffery Berman, assistant dean of the University of Missouri-Kansas City School of Law, Wyrsch, Maneke and Hipsh took time out to discuss the new court rule and its implications on litigants, jurors and the courts.

SHEILA THIELE: Mr. Wyrsch, could you give us a little bit of the history of Supreme Court Rule 27.09?

JAMES WYRSCH: I think there are several reasons that prompted the drafting, and ultimately the approval of a rule such as this. One was a letter that I believe the Supreme Court received from the St. Louis County Circuit Court, concerning requests primarily by media to interview jurors in the Ellen Reasonover case, which our firm actually was involved in handling. The case involved a federal judge, ultimately releasing Ellen Reasonover, by reason of a writ of habeas corpus that she issued, that caused quite a bit of media attention.

Some of the media wanted to actually interview some of the jurors, and asked for the list. That caused a lot of concern; that some 16 or so years after the verdict, the jurors were still being asked to respond why they did what they did.

Then some other concerns had been raised over time. There's something called a State Justice Institute. And they had been writing some papers showing concern about jurors' confidentiality. They had actually done studies on this. So the committee was really responding to those concerns.

I know Jackson County had a similar rule--similar to the one we originally proposed to the Supreme Court. And I believe either St. Louis County or St. Louis City also had a similar rule. So that really was why the rule was drafted as it was.

I would point out that the rule as originally drafted--and I believe to some extent, as it is now--would permit the litigants to actually know the names of the jurors and to use the information obtained during the course of litigation in connection with the representation of their respective clients.

What this original rule did was shield from outside view the names of the jurors and the information contained in the jury questionnaires unless there was a good reason not to. In other words, this wasn't an absolute rule. If there was a good reason not to seal that information, then whoever was seeking the information could go to the circuit judge and ask to obtain the information.

So at the time we drafted the rule, we thought there was a balance there. That's kind of what happened, really.

JEFFREY BERMAN: I think that's a good point--that basically this rule is primarily targeted at the public and the media rather than the litigants. The litigants can have access to the names and the questionnaires. Also, there is something in the rule about post- conviction relief. Depending upon whether you make the proper showing, you can get access thereto.

So basically, it's aimed at the media and public, which causes me a lot of concern because they are not going to be able to get this information unless they make a showing of good cause, and there is really nothing in the rule that really explains what kind of showing that's to be. It's going to basically be a discretionary call by the judge, without any guidance. I suspect that in operation, they are not going to be able to get it, especially if their only argument is, "We would like to know." And I don't think that's going to be sufficient, the way the rule reads.

THIELE: Jean, you protested the original language of the rule.

JEAN MANEKE: Right. I think a lot of what Dean Berman says is much the same perspective we had. This rule kind of flips the perspective that has been the rule across the nation for access to information concerning jurors in criminal cases.

Whether you look at Missouri's constitution that premises everything on courts and court records being open to the public, or whether you look at cases--not only in the state of Missouri in terms of criminal trials, but also cases around the country dealing with juror records--the premise has always been it's open unless the court judges it to be closed due to some reason. The standard would be, of course, much the standard that was here, only flipped the other way.

So for many of us, we felt like the perspective on it needed to be looked at more closely.

HARLENE HIPSH: I think you also have to consider the privacy interests of the jurors. They are selected randomly and asked to do this civic duty, not exactly voluntarily, but because they are asked to as part of their civic duty. I know that prospective jurors and selected jurors have expressed in the past a lot of concern about their names being provided to the press and to the public, especially in criminal cases.

So I believe the court has some concern in that regard, in protecting their right to privacy.

THIELE: Since Jackson County's rule currently closes all records, does that --

HIPSH: The Rules Committee met and repealed the local rule, but the repeal hasn't become effective, because it has to go before the next court en banc meeting and then be certified to the Supreme Court.

THIELE: The amended version of the state rule allows some information to be open. Does this take care of some of your concerns with the original?

WYRSCH: The new rule will permit, presumptively, the jury list, the names of the jurors to be available but not the questionnaires.

BERMAN: But not the questions? Let me talk about the questionnaires, then, because this issue was litigated, in a way, in the U.S. Supreme Court case, Press-Enterprise Company v. Superior Court of California, back in 1984. That case in California involved the rape and murder of a young woman. The trial judge allowed, I think three days of voir dire to be observed by the public and the press, and then closed it from the public.

Press-Enterprise was concerned about that, and tried to get it open so that they could observe and also asked for the transcript of the jury questioning. And basically, the judge said, "Well, I think there is a significant privacy interest here, that there's a good deal of information in the jury questionnaire, that jurors would have difficulty or would be embarrassed or would have some concerns about releasing." So the judge said, because of those privacy interests, he was not going to allow that to go to the press.

Well, this went all the way up to the U.S. Supreme Court. There is a privacy interest, which was just mentioned here, but there is also a First Amendment interest, which is very important. The court looked at history and logic and basically said, based on the fact that voir dire was a public thing and everyone could see that, and based upon the importance of voir dire in terms of the administration of justice, this information, the transcript, should be provided to the press unless there was something to rebut the presumption of openness.

So the questionnaire issue really came before the U.S. Supreme Court, and the court said, "We're going to vacate or remand this back to the trial judge, and you should at least speak to the jurors and find out if they are concerned about their information going out."

Then the trial judge is supposed to determine whether their interests are legitimate and whether they override the presumption of openness.

Then the trial judge is supposed to make a decision that you can only overcome the overriding interests of the First Amendment, based on the finding that closure is essential to preserve higher values, and is narrowly tailored to serve that interest.

I think that basically says this rule is not going to hold water if it's appealed and eventually gets to the U.S. Supreme Court, because just by saying, you can't get it unless you make a good cause showing, flips everything upside-down. It should be open, unless there is some overriding interest, narrowly tailored to protect that interest, to not allow it to be available.

WYRSCH: I might comment on that Press-Enterprise case. As Dean Berman has indicated, the court must make certain specific findings on the record.

First they must determine whether there's a substantial probability of prejudice to a compelling interest of the defendant, government or a third party, which closure would prevent.

Secondly, even when the court finds a substantial probability of prejudice which supports closure, the trial court must consider whether there are alternatives, such as in-chamber questioning of jurors or sealing portions of transcripts, which would protect the interests in question while preserving the essential openness of the proceeding.

Third, if the alternatives are found inadequate, the trial court must determine whether the prejudice to the interest in question outweighs the First Amendment right of access.

And fourth, if closure is warranted, the court should devise an order that is narrowly tailored to serve that interest.

I will say that courts have, in the past--even since the Press- Enterprise case--permitted anonymous juries. They have done so primarily in cases where there are allegations of organized crime, or they may have specific information that there may be attempts to influence the jury by improper means, or there may be a particular history of violence on the part of the folks that are being prosecuted.

As a criminal defense attorney, I have concerns that -- and this has been expressed in some of these studies by the State Justice Center--that jurors will be less than forthcoming if they know that information concerning their background, and in certain instances, their identity, is in fact made public.

From the defendant's point of view, we want to get the prospective jurors talking as much as they will talk about their background and their attitudes and their feelings about how they might approach this particular case. I believe that if we told them their names and the juror questionnaire information will not be made public, they would be a lot more forthcoming than they sometimes are.

So I think there is a legitimate interest, from the defendant's point of view, that on certain types of matters that this information be kept confidential from third parties.

Now, I'm not an advocate of keeping the information away from a litigant, the defendant or the state. I'm not asking that that be done. I'm not necessarily in favor of anonymous jurors. But I do think there is a legitimate interest here in terms of protecting prospective jurors' confidentiality and those that serve.

MANEKE: I think, clearly there's a balancing issue here. I think we all recognize the court has the power to seal a record, to impose an order to protect information any time the court deems it prudent. Obviously, any member of the public's only option is to take that up on appeal in some fashion.

But still, I think there has to be weighed in that balance the premise that criminal proceedings are open. That's been a constitutional foundation from day one in this country. If the public cannot fully observe what goes on in a criminal proceeding, the public begins to lose faith in whether what's happening in a courtroom is fair and impartial and if justice is being done. So those two interests have to be weighed very carefully in these kinds of situations.

BERMAN: I understand what Jim is saying, in terms of jurors might be more open if they didn't think what they said could be made available.

On the other hand, if they knew they would be accountable for what they are saying, they might be more forthright, also. I wonder if they knew it wasn't going to be made public, they might lie? Who knows? Because there might be people out there who know they are lying. So I'm not so sure that's a legitimate reason, although I understand that argument.

I'm concerned about what the public thinks. I'm concerned about the public -- we see our federal government today saying that if we believe someone is a terrorist, we shouldn't even let people know who they are. If we're going to try them, we shouldn't even let them have lawyers and shouldn't let anyone see what's going on.

This is kind of the next step. Let's not let people know who the jurors are because they will get nervous. Then maybe we should say, let's not let them know who the prosecutor is because the press might be all over the prosecutor. Let's not let them know who the judge is because the judge will be hounded.

I think that's a bad road to follow. I think people would be very concerned about secrecy in criminal trials; that they'd feel a lot more comfortable if they knew there weren't any hoods on people, if things were illuminated. Yes, there might be some down side to it. Maybe the press will call some of these jurors. But they don't have to talk to the press if they don't want to.

If there's a legitimate concern about safety in murder trials, in drug lord kinds of things, fine, the judge has the authority to look for a good cause shown, have an anonymous jury or not to provide the name. But there ought to be a legitimate reason for that to happen. Not require the public to have to come forward and say we have to show good cause.

I think good cause is based on history. It's always been public. If they want to change that, they ought to come forward with some legitimate reason for that.

WYRSCH: Jeff, one of the concerns I have is that the prosecutor often--particularly in a case involving a substantial community concern--will appeal to the jurors to convict, or in the case of the death penalty, to impose the death penalty, on the basis that the community's values will be served by that, okay? Those arguments, to some extent, have been held to be legitimate.

To me, if a juror knows information about themselves is public and there has been a lot of publicity in the paper about the case, and most of it is going to favor the prosecution, this idea that whatever they are going to do in this case they are going to be held accountable for in the public means vote for guilty. Vote for guilty, because you're not going to be able to walk out of here anonymously and say, "I rendered a just verdict," faced with all of this public pressure on you. That's a concern of mine. Everybody seems to want to put the spotlight on them. Why? All they are there to do is to make a true and just verdict, based on the facts and the evidence.

HIPSH: I think there's a distinction between the prosecutor and the judge in that these people are enlisted into service, as opposed to signing on so to speak.

THIELE: Mr. Wyrsch, while you were serving on the committee, did the committee interview jurors from past cases?

WYRSCH: We at least did not do that as a collective unit.

On the other hand, the committee is composed of individuals from a cross section of the bar and as it relates to the criminal justice system. We have prosecutors and judges, defense counsel, one law professor -- well, actually, there are several of us that are adjuncts, but only one that's a professor. So there were different experiences brought to the table in terms of drafting the rule.

So I think the experience of how jurors react, so to speak, to information about themselves was there even though there might not have been any current interviews of any jurors.

MANEKE: I do know one of the questions that came up when we met with the Supreme Court was the issue of how the media or the public's perspective was reflected in the committee. Everybody acknowledged that, yes, there really was no input from the media or from the public, in terms of the public access angle on this whole issue. Perhaps we should have done that. Although I don't know that we knew this was all going on until it was over with.

BERMAN: I may be a Boy Scout, because I understand the tensions at trial and some of the implications of a finding and how the community might perceive it, but I mean, that's part of the price we pay in a free society. If we're on a jury, I think that's part of the price of democracy. We should be proud; we should be accountable, rather than trying to hide from the public.

It may be that some of the members of the public, in that community, would want the jury to go the other way. It doesn't mean they will want the death penalty. And then the rule's not even limited to death penalty cases. It's limited to every single type of case. It's a major inroad on what we perceive to be the administration of justice in criminal trials.

HIPSH: Actually, in Jackson County it's a move in the direction that you seem to be in favor of, because we had a local rule that closed access to all juror lists and questionnaires. Now the Supreme Court rule has said they're presumptively open. The rule speaks only to criminal cases. But we have assumed, since there is probably more of a privacy interest on the part of the jurors in criminal cases than there would be in civil cases, that if there's to be a presumption of openness on the criminal side, that there should be on the civil side, as well.

So, in fact, this rule has made these records a lot more accessible to the public.

THIELE: What has your experience been with having the records closed?

HIPSH: The jury supervisor I believe, is frequently asked whether their personal information is going to be disseminated. And she has frequently, I would go so far as to say, comforted them; that no, it wouldn't be available.

Several of the judges have told the juries when they were impaneled that the information about them personally would be kept private, and the juries are generally in favor of that.

I guess just as a private individual as opposed to a court employee, I am wondering what the public interest in knowing where the juries live, and what their phone numbers are. I wonder what the real public interest is in that.

MANEKE: There have been many, many cases where the media in years past--and I don't know that I can speak specifically of the Kansas City media, but across the country--there have been many times when stories have been done dealing with the make-up of jury panels across the board, whether there are certain categories of people that are routinely left out of those panels, or whether juries tend to be heavily weighted toward a particular race or sex or type of person, whether people seem to be getting out of jury duty on a regular basis because of their standard. All of those are issues that certainly would concern the public. And if you can't get access to names and addresses and be able to identify who the people are on the panel, you really have no ability to do those kinds of stories.

So that's the public interest that you really have, in ensuring that everybody is following the same obligation that you, as a citizen, are following.

WYRSCH: Let me ask you this, Jean, if I can. What exactly is the public interest in knowing the identity of the juries? I guess maybe in the O.J. Simpson case they wanted them to explain why they voted the way they did. And so then as result of that, we had juries getting on TV and saying things that may have been inappropriate.

I'm not so sure the justice system is well served by the fact that we can have the juries' names in the press. I can't say there is no interest there. I just don't know what kind of compelling interests there are.

When the rule was originally drafted, it was sort of -- if it wasn't modeled after Jackson County, it was certainly similar to it. So I argued that there should be access by the litigants, and if there was a good reason for the press to have it, fine. But there had to be a way -- if they had a real good reason, they could get the information. But if they didn't, we were going to leave it the way it was. The litigants could use the information, but it wouldn't be public information to anybody else. It seemed to me that was one approach.

Obviously, the Supreme Court went the other way, and said the lists would be presumptively open, although you can still close them if there is a legitimate reason.

But I just had a hard time identifying what compelling interest there was in the media, to the information. I'm sure there are cases where that would be the case. I just don't see it, in most cases.

BERMAN: To me, the juries are not just third parties. They are the trier of fact. They have a major role in the determination of the case. Just like the judge shouldn't, in my view, be anonymous, just like the prosecutor shouldn't, just like the defense attorney shouldn't--I think the juries who are part of this system, ought to be illuminated somehow.

I can see they might be in danger, and so maybe we should protect them there. They might be talking about private things involving their kids, involving rape or drug use. I can see that and we can close that. But the fact that they were involved I think should always be open. And most of their questions, I think, should be available to the public.

I think we're going in a dangerous direction in this country if we have rules like this.

MANEKE: If I'm a reporter and I go on a case where you're defending an alleged criminal, and if I sit in that courtroom and I discover that every single member of the jury panel is the wife or husband of a criminal defense attorney in town, I think the public would be very interested in that, in terms of whether that had any influence on the outcome of the trial.

WYRSCH: That's a good example. I've always heard it said the other way, that the press might ferret out that there were people on the jury that had a connection to, for instance, the prosecution, and they never revealed it. And therefore, the defense could use that information to ask for a new trial. That is a legitimate basis for inquiry. I just hadn't ever experienced the press finding out some information that I could use, at all.

I had one case in Springfield, and a sensational case down there, where the TV station did interview a couple juries, and they said some things that I thought would be helpful, and would not give us the names of the people that they interviewed because they were citing their own sources or whatever, so we couldn't get the information from them. Then we made a motion to the court to have the information revealed to us, or to interview all the juries. And although we started to do that, the judge put a halt to it and said, "I don't want you to interview the juries."

So I think that inquiry might result in a benefit to somebody-- the prosecution or the defense--but I haven't had the experience where it's happened very often, or at all.

THIELE: Harlene had mentioned that the circuit court is working to amend their local rule to also include civil cases. What is your opinion on that matter? Should the state rule be applied to civil cases, as well?

MANEKE: I like Harlene's analysis on that. I think that makes good sense. This clearly should be viewed as more restrictive in civil cases. So if this is the rule in criminal cases, certainly it should at least apply in civil cases, too.

Although I like what Dean Berman says about, why not go further with it? But you take what you've got.

BERMAN: Jim raises the interest, and I guess it's the trial practitioner's major interest, and I certainly understand, that if it doesn't help somehow with respect to a new trial, why is it important?

And I keep going to the next level. I keep talking about the needs of the public and media. They are not involved with the prosecution or the defense, except they would like to know about the trial, whether it was a fair trial, whether it was a fair process, whether the juries selected were selected properly, whether they understood their responsibilities. And it may turn out that if the press has access to this information, they might find out things that can be helpful to a new trial.

But that's not my major concern. My major concern is the public's perception that people have hoods over their faces and are dealing in this dark chamber of proceedings. That scares me. I don't like to see it happening, unless it's absolutely necessary.

HIPSH: I think maybe the process can be evaluated without having the specific identifying information about the people -- I mean, the court doesn't take any position on whether this rule is a good move or a bad move. It will just be enforced. But the process is open to the public. The voir dire has always been open to the public. There are no hoods over anybody's faces. You can see what they look like, what gender they are, a lot of things about them. The only information that we're talking about is their name, address, phone number and things like that.

THIELE: Are there any other issues you would like to touch upon?

BERMAN: There was one thing, and I assume it's in the revised rule, about the post-conviction problem that might face an attorney, trying to find out information. There was an article about a lawyer who would have trouble getting the information because he wouldn't know how to show good cause to get the questionnaire.

I wonder, from the defense attorney's perspective, whether you see that as a real problem. I mean, someone who is hired to do post- conviction habeas relief, and can't get access to the questionnaire without a showing of good cause, and I think the lawyer said something to the effect, "How would I show good cause, other than I say I need it to be able to try to find the habeas ground?"

WYRSCH: I believe that the rule provides that the jury questionnaires will be accessible--are confidential, but they are not confidential with respect to the court and the parties.

HIPSH: That's true.

MANEKE: I guess as a closing comment, I see this as being indicative of many efforts that are made in the State of Missouri and around the country, to attempt to close information that has previously been open. I think there's a heightened awareness of privacy in the public, and many times they are failing to see how they benefit from access to information. All they see is -- I don't want to use the word "paranoia." They see a concern that all the problems that arise, arise from public access to information. They focus on that, rather than focusing on the benefits that arise from public access.

So I think it's inherent upon the media, to continue to articulate the benefits that are gained, because perhaps the only word that the public is getting, is the concerns that are raised from privacy concerns. The public needs to realize more strongly, that public access to information is a good thing.

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