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The media companies demanding that jury selection in the trial of Martha Stewart be opened to the press have the tide of recent history�and case law�against them. Experts agree that closed voir dire is rare in run-of-the-mill criminal trials. But in high-profile cases, “it’s very unusual that voir dire would be completely open,” according to Paula L. Hannaford-Agor, a senior research associate at the National Center for State Courts. “Courts have become increasingly concerned that jurors will not be fully candid if they feel that a large audience is paying attention to their every word,” she said. She added that questioning of prospective jurors occurred behind closed doors in the trials of the Oklahoma City bombers, Timothy McVeigh and Terry Nichols. Since voir dire began last Tuesday in the trial of Stewart and co-defendant Peter E. Bacanovic, Judge Miriam Goldman Cedarbaum has been probing prospective jurors for biases in a robing room in her New York City courthouse, out of sight and hearing of all but the defendants, their lawyers and federal prosecutors. Reporters will have access only to transcripts of the voir dire, one day delayed, after removal of the names of the prospective jurors, “as well as such deeply personal information as any juror shall reasonably request not be made public,” in the words of a Jan. 15 order by Cedarbaum. That order was requested by prosecutors, with the agreement of both defendants. A coalition of 17 companies, including the major New York City daily newspapers and national outlets like CBS Broadcasting Inc. and the Associated Press, appealed the order to the 2d U.S. Circuit Court of Appeals. In re Application of ABC Inc., No. 04-0220. The 2d Circuit agreed to hear the case on an expedited basis, scheduling oral argument for Jan. 26. American Lawyer Media Inc., the parent company of The National Law Journal, is a member of the coalition. High profile George Freeman, assistant general counsel for coalition member The New York Times Co., said that Cedarbaum’s order is typical of a worrisome trend toward closing voir dire merely because a case has generated substantial publicity. “It’s anomalous to exclude the public from cases in which the public has the greatest interest,” he said. The order also troubles media lawyer Karen A. Monsen of the San Antonio office of Dallas’ Jackson Walker, author of an article on juror privacy rights in the Spring 2002 University of Texas Review of Litigation. She noted that there’s little reason to fear that Stewart, Bacanovic or their supporters will do physical harm to convicting jurors, a concern that has led to the closing of voir dire in some criminal trials. “This is a big step. It brings us one step closer to closing the courts to the public,” she said. In his complaint on behalf of the coalition, David A. Schulz of the New York office of Washington’s Levine Sullivan Koch & Schulz, argued that U.S. Supreme Court precedents assert that voir dire must be open absent compelling circumstances and that the mere notoriety of the defendant is not a compelling circumstance. Schulz claimed that a 1998 case in which the 2d Circuit approved closed voir dire, U.S. v. King, 140 F.3d 76, is distinguishable. Not only was the defendant, boxing promoter Don King, well known, “but that case involved questioning potential jurors about their own racial attitudes, in a racially charged prosecution,” Schulz wrote. But according to researcher Hannaford-Agor, case law shows that making available a transcript of the voir dire can be an adequate substitute for here-and-now public access. In two of the decisions relied on heavily by Schulz-1984′s Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, and a 1986 follow-up case of the same name, 478 U.S. 1-the press was denied access not only to a court proceeding (voir dire in the first case, a preliminary hearing in the second), but to transcripts as well. The 1984 decision said that a court could go into closed session to protect a prospective juror’s intimate secrets. In King, the 2d Circuit expanded that ruling to say that courts can restrict public access for the purpose of eliciting candid views about public figures and that the measures they use need not be limited to those mentioned by the Supreme Court in the 1984 decision. In his brief filed in the 2d Circuit last Thursday, U.S. Attorney David N. Kelley denied that the “interests [of press and public in open proceedings] are entirely or even significantly impaired where a transcript of the proceedings is provided promptly.” Yale Law School Professor Abraham S. Goldstein, who has written on juror privacy, said that the publicity surrounding a trial can be compelling enough to restrict press access. “The more public the proceedings, the more intrusive the questioning will seem. Courts are reluctant to bear down too hard. I’m concerned that some courts may simply give up,” he said. Nancy J. King, professor at the Vanderbilt University Law School, is the author of a 1996 article arguing the case for keeping the names and addresses of prospective jurors from the press, a practice that is now fairly common. While generally supportive of juror privacy, she acknowledged that it is conceivable that in some cases a transcript would not adequately protect the public’s right to know. For instance, seeing the demeanor of a lawyer may be important in deciding if he were striking jurors for discriminatory reasons. “I’m not sure that’s been litigated,” she said. Young’s e-mail address is [email protected].

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