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As federal judges seek to keep the names of jurors in high-profile criminal cases confidential more often, some media outlets are challenging the practice and advocates for government openness are questioning whether justice is being served. The Chicago Tribune is appealing a decision by U.S. District Judge Amy St. Eve to keep the names of jurors in the trial of media mogul Conrad Black confidential. St. Eve said in ruling against the Tribune last month that not releasing the names to the public was crucial in providing Black and three co-defendants a fair trial. U.S. v. Black, No. 05-727 (N.D. Ill.). “It is really a fairly recent phenomenon that these secret juries are being convened in nonviolent, criminal cases,” said Jane Kirtley, a law professor and director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota Law School. Judges in recent trials of other top officials, including homemaker magnate Martha Stewart, former Enron Corp. executives and I. Lewis Libby, a former aide to Vice President Dick Cheney, also limited access to juror names. The orders follow a brief “guidance” issued in March 2004 by the Judicial Conference of the United States, which stated that documents containing identifying information on jurors shouldn’t be made public. Some media attorneys say the policy flies in the face of a tradition of trial openness that can elicit important information about jurors and generally enhances public confidence in the justice system. Cloaking jurors’ identities has in the past been reserved for mob-related cases in which there was the threat of jury tampering and harm to jurors, they said. “We’ve had generations of high-profile cases and have managed very well without orders limiting the disclosure of the names of jurors,” said Floyd Abrams, an attorney at Cahill Gordon & Reindel in New York. Privacy concerns The conference rule came as courts were wrestling with what information to provide electronically and as related privacy concerns grew, said Karen Redmond, a spokeswoman for the judicial conference. Individual courts have their own jury plans for handling a jurors’ list, she said. “There was never an intent that it would never be available,” Redmond said. Still, there’s no First Amendment right to the names during the trial, St. Eve said in her April 6 ruling, and she has the right to withhold them under her court’s rules. The question of providing them after the trial is still pending. While the names of all prospective jurors were said in court, no list of the final jurors selected was released. The “intense media scrutiny” and the Internet’s power to disseminate information beyond the court’s jurisdiction create risks of contact, St. Eve said. “A solid argument can be made that the temporary suspension of the First Amendment interest is appropriate to protect the defendant’s right to a fair trial,” said Mark Rotert, an criminal law attorney in Chicago at Stetler & Duffy. The Tribune argues that it has a First Amendment and common law right to the names. The newspaper’s lawyer, Sidley Austin attorney Eric Mattson in Chicago, declined to comment. Media attorneys say that judges have less restrictive tools they can use to prevent tampering, and that jurors can brush off attempted contact. In the Black trial, St. Eve ordered media companies not to attempt to contact jurors during the trial, which is common court protocol. And journalistic ethics generally preclude attempting to contact jurors during a trial. “There needs to be some kind of basis rather than merely the judge’s speculation that these jurors might be contacted,” said Slade Metcalf, a Hogan & Hartson attorney in New York. Making the names available encourages people to step forward if there’s a problem with a juror, media attorneys said. In the prosecution last year of former Illinois Governor George Ryan, the Chicago Tribune reported that two jurors lied on their jury questionnaires, resulting in their replacement. The 2d U.S. Circuit Court of Appeals in 2004, on petition from news organizations, reversed a lower court decision in Stewart’s obstruction of justice trial that cloaked the entire juror-selection process, saying openness advances rather than threatens a fair trial. The court in 2005 also reversed a judge’s ban on reporting names that had been spoken in court during an obstruction of justice trial of Credit Suisse First Boston banker Frank Quattrone.

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