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 AJR  Columns :    FIRST AMENDMENT WATCH    

From AJR,   January/February 1998  issue

Keeping Jurors' Lips Sealed   

A federal judge orders a jury not to grant interviews about its deliberations.


By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

How secret should jury deliberations be?

Jurors reach a consensus in sessions closed to the press and public, and then deliver their verdicts in open court. But what happens next? May jurors voluntarily discuss their experience with the news media? May they write books or sell the rights to the story to filmmakers? And should journalists be allowed to approach jurors and ask them what went on behind those closed doors?

Judges are concerned that post-verdict interviews will undermine the secrecy of the deliberative process. They fear that jurors, particularly in high-profile cases, could be intimidated if their frank and honest viewpoints, expressed in what they assumed was a confidential process, appear in the news media.

But, recently, judges have focused on protecting the reputation of the system itself, a far more nebulous and subjective concept. Many are appalled by jurors peddling their stories to the highest bidder or holding press conferences after a trial. Although there are many examples of such post-trial revelations contributing to greater public understanding of the most secretive aspect of our criminal justice system, judges feel that such interviews invade the jury room not to educate, but solely to "sell newspapers."

For the most part, the First Amendment has prevailed. Although judges often instruct jurors at the conclusion of a trial that they are not obliged to talk to anyone about their service, they do have a constitutional right to speak, which doesn't vanish simply because they have served on a jury. Journalists, too, have First Amendment rights to ask questions in the course of gathering news.

Accordingly, most courts have been reluctant to issue broad orders barring media contact with jurors, unless a clear and present danger to some competing interest exists. And even then such restrictions must be as narrow as possible so as to have the least impact on First Amendment rights.

But, as a recent federal case in New Orleans shows, not all judges operate this way.

After a high-profile trial of two former Louisiana state senators and others accused of racketeering and other felonies in connection with a scheme to block video poker legislation, Judge Sarah Vance issued an order telling the jury members that they had no obligation to speak to anyone about the case. It also said that, unless she issued a special order, "no juror may be interviewed by anyone concerning the deliberations of the jury."

The publishers of New Orleans' Times-Picayune and the Baton Rouge Advocate, joined by two reporters, intervened, asking the court to clarify whether the order was intended to prohibit interviews about any aspect of jury service, or only matters relating to the deliberative sessions. They also asked whether the judge was forbidding interviews concerning an individual juror's own thoughts or general aspects of the deliberations, as opposed to those seeking to learn the specific votes of particular jurors. The news media contended that the order was so vague that both jurors and journalists feared that any communication between them would violate it.

The district court judge denied the request, writing that nothing in her order prohibited press interviews of jurors as a general matter. "Common sense" required that the specifics of any part of the process by which the jurors reached their verdict had to be considered off-limits, she said.

The media parties appealed to the U.S. Fifth Circuit Court of Appeals, arguing that requiring journalists to obtain a judge's blessing before interviewing jurors was an impermissible restraint on constitutionally protected newsgathering rights. This was especially so in this case, they said, because there was no evidence that reporters either had, or would, harass or disturb jurors who did not wish to be interviewed.

In late October 1997, a unanimous panel affirmed Vance's order, concluding that the restriction was narrowly tailored because it applied only to questions about deliberations, not "general reactions" to jury service, and did not prohibit jurors from speaking out on their own. The court also cited the high level of publicity that the case had attracted, finding that this alone would justify the order, "without regard to the willingness of the jurors to be interviewed or the civility of the reporters seeking to conduct the interview."

In December the entire appeals court turned down a request to reconsider the ruling.

Attorney Jack Weiss, who is representing the news organizations said, "This decision is out of line with what is going on in the rest of the nation," where readers and viewers can see media interviews with jurors published daily.

The question is, will that be the case for long if orders like Judge Vance's are upheld? l