At the Oklahoma City bombing trial of Timothy McVeigh jurors’ names were kept private. So, too, in the corruption trials of former governors Edwin Edwards of Louisiana and Rod Blagojevich of Illinois. Likewise in the recent Chicago trial for the murder of Jennifer Hudson’s mother and other family members. And last year Maryland’s courts adopted rules saying jurors are to be referred to by numbers, not names, and authorizing the trial judge to order that names and addresses be withheld from everyone except counsel when there is substantial danger of harm or undue influence.
Then last month the federal Fourth Circuit Court of Appeals weighed in on the subject. In United States v. Dinkins, No. 09-4668, 09-4669, 09-4755 (August 14, 2012), the court approved the use of an anonymous jury in a murder/drugs/firearms trial in Baltimore. The Fourth seems to be the last federal circuit court to rule on anonymous juries, and there now is fairly uniform agreement among the federal courts on when they are permitted. It is worthwhile to review what the federal courts say since there is little useful state law, and state courts generally tend to follow federal precedent on issues with First and Sixth Amendment implications.
(There appears to be only one North Carolina appellate case that even touches on the issue of anonymous juries, and it is a glancing blow. In State v. Garcell, 363 NC 10 (2009), the Supreme Court said that the trial judge did not have to investigate possible juror exposure to external influence just because the jurors sent a note to the judge asking to be referred to by number rather than name. The opinion does not say whether the judge granted the jury’s request to use numbers.)
First, let’s be sure we know what we mean by an anonymous jury. Anonymity usually begins during jury voir dire and continues throughout the proceedings. The degree of anonymity can vary. Sometimes it means withholding the names of jurors from the public and referring to jurors or prospective jurors in the courtroom by number rather than name — though the lawyers still have names, addresses and other identifying information. At other times the anonymity may be broader, shielding the jurors’ names and addresses not just from the public but from the defendant, defendant’s counsel and the prosecutor as well. The court might also withhold certain biographical information such as the identity of the juror’s employer.
In the Baltimore case the charges against the defendant included murdering an informant who was to be a key witness on drug trafficking and on the murder of another informant. The trial judge kept from the lawyers the names, addresses, spouses and employers of the jurors. However, the jury questionnaire which the lawyers had was extensive and included information about the employment of the jurors and their spouses, albeit without naming the employers. The lawyers also got jurors’ counties, neighborhoods and zip codes.
The basic message of the Fourth Circuit is that, yes, anonymous juries are permitted when (1) there is strong reason to decide that jurors need protection from interference or harm, or if without anonymity the integrity of the jury function will be compromised, and (2) the court takes safeguards to minimize interference with the rights of the defendant. The defendant’s rights needing protection are the right to an impartial jury, for which effective voir dire is essential, and the right to be presumed innocent, which can be affected by a suggestion that jurors need to be protected from the defendant.
Like the other federal circuits, the Fourth says the “Ross factors” — from United States v. Ross, 33 F.3d 1507, 1520 (11th Cir. 1994) — should be used to determine whether there is strong reason to believe an anonymous jury is needed:
“(1) the defendant’s involvement in organized crime, (2) the defendant’s participation in a group with the capacity to harm jurors, (3) the defendant’s past attempts to interfere with the judicial process, (4) the potential that, if convicted, the defendant will suffer a lengthy incarceration and substantial monetary penalties, and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation or harassment.”
By statute, anonymous juries are allowed in federal capital cases only when it is shown by a preponderance of the evidence that disclosure of names and addresses will jeopardize someone’s life or safety. 18 U.S.C. § 3432. For non-capital cases, the test is whether “the interests of justice” require anonymity. 28 U.S.C. § 1863(b)(7). The Ross factors inform the decision in both kinds of cases.
Emphasizing that the Ross factors are not exclusive, and that the trial court must always engage in a context-specific inquiry, the Fourth Circuit found sufficient basis for an anonymous jury in the case before it. The defendants belonged to an extensive and violent drug trafficking organization; one of the charges was murdering a former gang member who had turned informant and was to be a witness against them; other gang members were at large; still other members were also being tried for murder; and defendants were facing potential sentences of death or life imprisonment.
To safeguard the defendants’ rights the trial judge had offered to give the jurors a non-prejudicial reason for the anonymity — that the court just wanted to protect them from unwanted media attention. Additionally, jurors were not told that biographical information was being withheld from the lawyers. And even though names, addresses and spouses’ and employers’ identities were withheld, the lawyers did get zip codes, neighborhoods and considerable other information, including the nature of jurors’ and spouses’ employment, from the jury questionnaires. Consequently, the Fourth Circuit said, the defendants’ rights were preserved. The trial court was ready to explain the anonymity in a way that avoided labeling the defendants as dangerous, and their lawyers were not unduly handicapped in conducting an effective voir dire.
Although there is no United States Supreme Court decision on anonymous juries, the circuit courts’ views are consistent with the high court’s approach to First and Sixth Amendment rights to open proceedings. The court has recognized both a First Amendment right of the public to attend jury voir dire (Press-Enterprise Co. v. Superior Court of California, 464 US 501 (1984)) and a Sixth Amendment right of the defendant to have voir dire be open (Presley v. Georgia, 558 US 209 (2010)), but allows the proceedings to be closed when necessary to serve an overriding governmental interest — e.g., protecting witnesses — so long as the narrowest available restriction is used.
While there is no North Carolina law, statutory or otherwise, approving anonymous juries there also does not seem to be anything that would prevent their use in the kind of circumstances described by the Fourth Circuit. The statutes on jury lists address only the master jury list prepared by the jury commission annually or biannually, depending on the county, and, as rewritten in 2012, provide that addresses are confidential. N.C. Gen. Stat. § 9-4, as amended by SL 2012-180, § 4. The statutes, therefore, would not seem a barrier to withholding information about jury panel members. And while state case law acknowledges a potential First Amendment right of access to court records, at least when the records in question historically have been open to the public, that right may be overridden by a higher interest such as protecting a defendant’s right to a fair trial or protecting witnesses. (For more information about the case law, see Access to Court Records in North Carolina and Judicial Privilege, Administration of Justice Bulletin No. 2012/01.)
It would seem, then, that North Carolina case law does not present a barrier to employing anonymous juries in the right circumstances. And it would seem that the Fourth Circuit’s decision in United States v. Dinkins is a good guide to the right circumstances — and to the precautionary steps that need to be taken to preserve the defendant’s rights.
I would be interested to hear from anyone who has experience with anonymous juries.
