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Shutting the Jury’s Window It has been more than 20 years since Steven Brill (once the Law Journal‘s chairman) turned the libel verdict for an oil company executive against The Washington Post on its head by interviewing the jury and finding out that good portions of their deliberations were improper. The case was reversed on appeal having nothing to do with those interviews, but since then, post-trial interviews of jurors by journalists have become a staple of high-profile trials. There are many lawyers and judges who oppose the practice and who believe that the recent talk show appearances and public statements by several jurors in the Martha Stewart trial are disturbing and disconcerting evidence that it has gotten out of hand. In State v. Neulander, 173 N.J. 193 (2002), for example, where the New Jersey Supreme Court upheld an order prohibiting post-trial juror contact with the media in between a death penalty mistrial and a retrial, Justice Gary Stein warned that, “Unchecked, the interviewing of jurors in high visibility cases will expose to view ‘the difficult and uniquely human judgments that defy codification and that build discretion, equity and flexibility into a legal system.’ That, in turn, surely will unravel the distinctive nonrational and intuitive ‘genius’ of this lay tribunal.” In the Stewart trial, there were indications from some jurors that they may have ignored the charge, taking into account the decision of Ms. Stewart not to testify or saying that their actions may have helped investors. Other jurors actually said that these jurors were not speaking for them. We are left to wonder what is wrong with the public knowing that jurors are ignoring the judge’s instructions or following a personal agenda. In the past we have opined that post-verdict interviews with jurors should be permitted with certain safeguards. Obviously, jurors had to freely consent to be interviewed without any pressure on them to do so and we believed that whatever information was revealed by such an interview should be barred except in exceptional circumstances from use by counsel on any post-trial motions or on appeal. New Jersey bars post-verdict juror interviews by counsel in R. 1:16-1. Other states make it a regular practice, helping trial attorneys refine their craft and helping the courts better refine their jury instructions. In federal habeas corpus practice, interviews with jurors that reveal improprieties, such as utilizing a Bible during deliberations, can and have saved persons from unconstitutional punishment. There is always a balancing that takes place between the First Amendment and the Sixth Amendment when it comes to safeguarding a defendant’s rights vis-�-vis the jury. There are judges, state and federal, who, believing that juror interviews by the media demystify the process and in turn reduce respect for it. There have been many attempts, often reversed by higher courts, gagging jurors from talking to journalists after the trial. It should be made clear to jurors that they do not have to speak to the media. But any restraint on the press must be limned narrowly to impose the least restriction necessary to ameliorate the perceived evil. The Supreme Court has reminded us time and time again that the First Amendment inevitably means we will hear and see things we don’t want to hear and see. There will always be somebody or something that makes us cringe. There is no question that we will suffer through the occasional crass, self-important, hyperbole-filled juror as part of the media’s post-trial juror interview process. Do there need to be hundreds of television trucks or all those klieg lights? We wish it weren’t so much like a circus sometimes, but these interviews continue to help educate the public and the legal system about what makes our justice system tick. If there are jurors violating the spirit or letter of the law, we ought to know about it. If it can’t stand the light of day, it shouldn’t be going on. In the Stewart trial, the jurors’ accounts show that they did a conscientious job and reached a reasonable result. As they explained it, the problem was not that the defendants didn’t take the stand; it’s that the defense put on no affirmative case and offered no alternative version of events to the government’s prima facie case. All the defense had to go on was impeachment, which wasn’t enough to create reasonable doubt. It is a message that no defense lawyer or prosecutor ought to be without, and one that we should not be afraid of. When the Government Comes to Call Martha Stewart was convicted on two counts of making false statements to federal investigators, including one in which she falsely said that she did not remember a conversation. Whatever else her conviction has accomplished, it has taught the general public all about 18 U.S.C. 1001, a criminal statute previously known mostly to specialists in white collar criminal defense. Under �1001, it is a felony knowingly to make any unsworn “false, fictitious or fraudulent statement” with respect to any matter within the jurisdiction of a federal agency. Six years ago, in Brogan v. United States, 522 U.S. 398 (1998), the Supreme Court held that someone being questioned by the FBI in a criminal investigation violated the statute when he falsely denied that he had done the act under investigation. Overruling those courts of appeals that had created an exception for an “exculpatory no,” the Court held that �1001 meant what it literally said, and that no policy justified an exclusion for those who lie to federal criminal investigators. “Whether or not the predicament of the wrongdoer run to ground tugs at the heartstrings,” wrote Justice Scalia, “neither the text nor the spirit of the Fifth Amendment confers a privilege to lie.” Brogan, 522 at 404. Thanks to the Stewart case, the general public now knows that it’s a crime to lie to a federal agent investigating you, even if you’re never charged with the crime being investigated. “Remember what happened to Martha,” is henceforth part of the federal interviewer’s tool kit. It is surely the government’s hope that Murray the accountant or Joan the junior vice president will remember her fate and be more forthcoming when the FBI, SEC or IRS come to call. That hope may be disappointed. It has long been private counsel’s duty to remind all and sundry that silence is safest. “Remember Martha” is a pretty persuasive reminder. Again Why kid ourselves? We’ve seen the courts find ways to delay executions in New Jersey, and we have commented on them. What seems to be seeping through all of that scholarly reasoning is the realization that the death penalty is, for a lot of reasons, as repugnant to our society as it is to most civilized societies. What we lack is the courage to say so. If the death penalty were as politically popular as it may once have been, we would understand the reluctance to tinker with the public will. But as Judge Sylvia Pressler suggested, the public may not be as sold when faced with the reality of the situation. We’ve tried to become more humane about what is inherently inhumane. We have tried to justify an eye for an eye, making the government itself vindicate the principle. We are finding ourselves less willing to accept the brutal role even when we can justify it. It’s time.

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