In a ruling that could have far-reaching effects on the handling of high-profile trials, the 3rd U.S. Circuit Court of Appeals ruled Friday that the media has a presumptive right of access to the names of jurors, and that a Pittsburgh federal judge erred when he sought to empanel an anonymous jury in the corruption trial of former Allegheny County coroner Cyril H. Wecht.
"The prospect that the press might publish background stories about the jurors is not a legally sufficient reason to withhold the jurors' names from the public. Although such stories might make some jurors less willing to serve or more distracted from the case, this is a necessary cost of the openness of the judicial process," 3rd Circuit Judge D. Brooks Smith wrote in United States v. Wecht.
The court's 118-page decision included a lengthy dissent by Senior 3rd Circuit Judge Franklin S. Van Antwerpen that said the ruling "effectively creates a new constitutional right" and "sets a precedent of permitting our court to micro-manage trial procedures established by the district courts."
Van Antwerpen complained that "requiring district courts to bow to media demands to know the names of prospective jurors would certainly impair the public good in many cases."
For a more in-depth analysis of the Wecht opinion, check The Legal Intelligencer later this week.
The decision was handed down just one business day before the same three-judge panel is scheduled to hear oral arguments in Pittsburgh today on the issue of whether all charges against Wecht should be dismissed on double jeopardy grounds as a result of the procedures followed by the trial judge in declaring a mistrial in April when the jury said it was deadlocked.
Wecht's defense team, led by attorneys Richard L. Thornburgh and David R. Fine of K&L Gates, argues in the appeal that U.S. District Judge Arthur J. Schwab denied Wecht's right to object when the judge declared a mistrial and immediately scheduled a retrial in the presence of the not-yet-discharged jurors.
In their brief, the defense team argues that the "right to be free from double jeopardy mandates that a district judge exercise 'scrupulous' and 'extraordinary' care to be certain that there is no alternative to a mistrial."
The Federal Rules of Criminal Procedure mandate an inquiry by the judge prior to declaring a mistrial, they argue, in order to "give the defendant an opportunity to dissuade a judge from granting a mistrial even when doing so would not be an abuse of discretion."
Friday's decision focused on an appeal brought by two newspapers and a television station challenging Schwab's jury selection procedures in the first trial.
In the emergency appeal, lawyers for the Pittsburgh Post-Gazette, the Pittsburgh Tribune-Review and WPXI argued that Schwab violated the First Amendment by keeping the names of jurors secret and by failing to conduct voir dire in open court, opting instead to rely solely on written questionnaires.
The 3rd Circuit acted swiftly on the appeal, issuing an order Jan. 9 -- prior to the opening of Wecht's trial -- that instructed Schwab to make the names of all potential and chosen jurors available to the public.
Now the 3rd Circuit has issued an opinion that fully explains its reasons for the emergency order.
In an important threshold ruling, the majority found that the media has a right to bring such appeals immediately, without waiting for the outcome of the trial, because such challenges qualify as "collateral orders."
"It would be impossible for us to vindicate the public's asserted right of access if we foreclosed appeal of this matter until after the final judgment," Smith wrote in an opinion joined by 3rd Circuit Judge D. Michael Fisher.
Smith found that the media has a presumptive right to know the names of jurors and potential jurors, and that trial judges must satisfy a strict test whenever they decide to keep those names secret.
"It appears that public knowledge of jurors' names is a well established part of American judicial tradition," Smith wrote, adding that "instances of courts withholding jurors' names appear to be very rare before the 1970s."
Smith said he recognized that trial judges have historically had the power to empanel anonymous juries "in special cases," but that "a tradition of openness exists and that anonymous juries have been the rare exception rather than the norm."
Schwab's justifications for empaneling an anonymous jury in Wecht's case fell short, Smith found, because they were premised mostly on "conclusory" and "generic" findings.
"The prospect that the press might publish background stories about the jurors is not a legally sufficient reason to withhold the jurors' names from the public. Although such stories might make some jurors less willing to serve or more distracted from the case, this is a necessary cost of the openness of the judicial process," Smith wrote.
Smith also found that Schwab failed to show "that there is anything unusual about this case, aside from a locally prominent defendant, that makes the prospective jurors' hypothetical privacy concerns more compelling than usual."
If Schwab's reasoning were upheld, Smith said, it "would allow judges to withhold the names of jurors in every case that might attract media attention."
Likewise, Smith rejected Schwab's concern that friends or enemies of Wecht would attempt to influence the jurors.
"The district court's reasoning would justify anonymity in virtually every jury trial, whether or not it attracts media attention, since almost all defendants have friends and enemies who might be inclined to influence jurors," Smith wrote.
In dissent, Van Antwerpen complained that "today's opinion will undoubtedly cause significant problems and delays in our district courts if the majority's expansion of the collateral order doctrine and its announcement of a new constitutional right are permitted to stand."
Van Antwerpen faulted Smith for focusing his legal analysis on several centuries of history instead of recognizing that the reality of modern media calls for a new approach.
"The collective experience of courts over the last few decades in managing high-profile trials is arguably more relevant than is the early development of the jury system," Van Antwerpen wrote.
"The fact that numerous district courts and state courts, exercising their own individual judgment in light of the challenges their judges face, permit the names of jurors to be withheld is strong additional evidence that the 'right' the majority announces today is not firmly rooted in history or the collective experience of this nation's courts," Van Antwerpen wrote.