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In one of the first appellate decisions to consider how far a trial court can go to keep a jury panel anonymous, the 5th U.S. Circuit Court of Appeals ruled that a court can’t restrict the press from reporting about jurors, but it can keep jurors’ information away from the media — even after a verdict is rendered. Some media lawyers believe the May 2 opinion may have far-reaching effects on federal judges who handle high-profile, media-intensive cases and may even encourage them to empanel anonymous juries. “Obviously the media has concerns about anonymous juries, and the court went out of its way to validate that judges may empanel anonymous juries,” says Paul Watler, a media lawyer and shareholder in Dallas’ Jenkens & Gilchrest. “It certainly reminds me of the justice system in Colombia these days where they have anonymous judges,” Watler says. “It has almost overtones of a police state.” The opinion, USA v. Brown, involved the high-profile fraud trial of Jim Brown, Louisiana’s former insurance commissioner. Brown was convicted of lying to the FBI during his trial last year. But his co-defendant, former Louisiana Gov. Edwin Edwards, was acquitted on related charges in a separate trial. U.S. District Judge Edith Brown Clement of Louisiana went to great lengths to keep the jury anonymous in Brown’s trial because there were allegations that the defendants had attempted to bribe witnesses and a judge, according to the opinion. Clement issued a gag order, ordered an anonymous but nonsequestered jury, closed the trial during jury selection, admonished against any attempt to interfere with the anonymous jury and continued the jury’s anonymity order post-verdict unless a juror requested that his information be made available. Numerous Louisiana news organizations immediately challenged the judge’s orders in an attempt to seek information about the jurors, the 5th Circuit’s opinion noted. In a reluctant opinion by Circuit Judge Edith Jones, the court ruled that Clement’s orders — which prevented the press from reporting information about the jurors — constituted “prior restraint.” “With considerable doubt, we conclude … the noncircumvention orders were unconstitutional insofar as they interdicted the press from independent investigation and reporting about the jury based on facts obtained from sources other than confidential court records, court personnel or trial participants,” Jones wrote. However, Jones found the trial judge was within her discretion to keep the jurors’ names, addresses and other relevant information from the media who wanted to interview them. That information also could leave jurors “vulnerable to abuse by those acting for the defendants,” Jones said. “Very real threats were posed by excessive media coverage, by the trial participants’ eagerness to manipulate the news media, and by the risk of harassment and taint,” Jones wrote. “The judge was empowered and entitled to counteract each of these threats in order to assure a fair trial.” According to the opinion, “[C]ommon sense tells us that a juror who has once indicated a desire to be let alone and to put the matter of his jury service behind him by declining to be interviewed regarding it is unlikely to change,” Jones wrote. “Significantly, at least one juror was interviewed following the conclusion of the trial.” Jones was joined in the opinion by Circuit Judges E. Grady Jolly Jr. and Jerry E. Smith. A WIN OR A LOSS? To the half-dozen media lawyers who had challenged Clement’s orders in Brown, the case is a win and a loss. Aside from the “prior restraint” issue, there’s not much to like, they say. “It’s good and bad,” says Mary Ellen Roy, a partner in New Orleans’ Phelps Dunbar who represented a New Orleans television station in the case. “This is the first 5th Circuit case that addressed whether that anonymity can continue after the verdict is announced.” James Swanson, a partner in New Orleans’ Correro Fishman, who represented the New Orleans Times-Picayune and the Associated Press, says the media initially did not challenge the jury’s anonymity, in part because of the credible threat of tampering in the case. But Swanson believes the decision that continues to keep jurors’ information secret after the verdict hampers the media’s ability to speak with jurors about their deliberations. Such reporting can reveal possible jury misconduct, he says. “We didn’t feel that there was any good reason to keep the jurors’ identities secret after the trial had ended,” Swanson says. Swanson says the media organizations have not decided if they’ll appeal. Jim Letten, U.S. attorney for the Eastern District of Louisiana, believes the 5th Circuit balanced the rights of the media and the right to a fair trial. Letten’s prosecutors requested that the jury remain anonymous in the case. “I think it’s a very important statement on the rights of the press and limitations on the press,” Letten says. “I think the 5th Circuit has simply said [that] the district court has proceeded properly.” Bill Jeffress, a partner in the Washington, D.C., office of Baker Botts who represented Brown, says he opposed the anonymity order, believing it hurt his case during jury selection. “We fought bitterly against the anonymous jury order,” Jeffress says. “These people [the defendants] are in politics. The parties and the government are entitled to know who these people [the jurors] are. You might find out that this person is a next door neighbor of my opponent.”

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