By Dan Kennedy • The press, politics, technology, culture and other passions

Secret juries and a muzzled press

In a decision that ought to trouble anyone who believes in a free press, the state’s Supreme Judicial Court yesterday ruled that judges can keep the names of jurors a secret if there is some reason to think that revealing their identities could put them in danger.

Jonathan Saltzman reports in the Globe today that the unanimous decision, written by Justice Judith Cowin, came in response to an order by Bristol Superior Court Judge Gary Nickerson, who sought to protect jurors sitting on a gang-related murder trial. The defendant, Manuel Silva, was acquitted, and The Standard-Times of New Bedford was turned down when it sought the names of jurors who had sat on the trial.

Obviously the problem Nickerson sought to address is real. But are we to allow secret juries to decide whether to send someone to prison? How would we ever know what had gone on during jury deliberations without the media’s being able to contact jurors once a trial has concluded? What about when something goes wrong? Who’s going to tell us?

What’s especially troublesome about this ruling is that it sounds as though Nickerson didn’t make much of an attempt to determine whether his order was even necessary, deciding on his own that two shootings that took place before and after the trial were related to the murder case. Saltzman writes:

Anthony C. Savastano, who represented the Standard-Times Publishing Co. in the appeal, criticized the decision and said the court accepted at face value unconfirmed police accounts that both shootings were linked to the trial of Silva, a reputed gang member from the Monte Park area of New Bedford.

Savastano said Nickerson should have held a hearing to determine whether the shootings were related to the case and sealed records only if he saw a “compelling government interest,” which Savastano characterized as a higher standard than good cause.

He questioned Nickerson’s concern for jurors’ safety, saying the judge took no action until a Standard-Times reporter requested the names in hope of interviewing jurors after the verdict. The judge then sealed them, Savastano said.

“This was not a case where the judge was overly concerned with jurors’ safety so he, on his own, impounded the jury list,” he said.

In today’s Standard-Times, Rob Margetta reports that the paper’s editors had no intention of publishing the names, but that they balked at a demand from Judge Nickerson that they sign a pledge to that effect in advance:

Managing Editor Dan Rosenfeld said the newspaper told Judge Nickerson about that policy when it made its initial request. But, he said, the judge wanted The Standard-Times to sign an agreement binding it from printing the names before he would give them out.

“I could not agree to a prior restraint,” Mr. Rosenfeld said. “We could only tell him that it is not our policy to print the names. That was not good enough for him.”

Later, Margetta continues, the paper did agree to that request — but, by then, it was too late.

Robert Ambrogi posts the text of the SJC decision here.

I doubt many people are going to be sympathetic to The Standard-Times. Former Massachusetts House Speaker Tom Finneran was chortling about it on his WRKO Radio (AM 680) show this morning.

But there needs to be some way for the press to perform its watchdog role without endangering the lives of jurors. I’m not sure how that balance ought to be struck. But it certainly seems to me that Judge Nickerson and the SJC got it wrong.

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  1. Rick in Duxbury

    Does this “wrong” decision by Judge Nickerson kill anybody? Until I had walked a mile in the shoes of these poor people afraid to reclaim their communities, I personally would place survival as a higher priority than the obvious free press concerns.

  2. Anonymous

    I’m with Rick on this one, Dan.We’ve seen recent cases of jury intimidation in Boston in gang trials. A juror’s right to life trumps a reporter’s right to contact that juror. At some point, it’s a judgment call. Both the reporter and the juror have rights, but the SJC made a decision that is so correct that I’d call it a no-brainer.

  3. rozzie

    When I was on a jury in a newsworthy trial about 15 years ago, the judge told us we were under no obligation to talk to the press. It’s not a secret process since the trial is open to the public, but the jury has the right to secret deliberations, and I don’t think the public, or even the press, needs to have the right to their names and addresses.

  4. Peter Porcupine

    I think this decision will do more to enhance jury service than any other I can think of. How many potential jurors balk at serving because they ARE worried about being in a media circus afterwards? And how often have media outlets abused the jury process by publishing the intrinsicly unverifiable claims of Juror 17 about bias, effectively casting doubt over the actual verdict?We recently had the Christa Worthington trial in my neighborhood, and people did everything but shoot themselvles in the foot like draft dodgers to avoid service. The media has no intrinsic right to know about the course of deliberations, and their intent to garner a lurid comment could actually prevent full deliberation. There’s a REASON why juries don’t deliberate in open court – to ensure frank discussion of the facts in evidence. The media’s only right is to the verdict as handed out.

  5. man who hates lawyers

    But are we to allow secret juries to decide whether to send someone to prison? (1) How would we ever know what had gone on during jury deliberations without the media’s being able to contact jurors once a trial has concluded? (2) What about when something goes wrong? (3)1: Yes. 2: That’s not your business.3: Who are you to decide?For a long time I’ve had a real problem with the media pouncing on jurors. It’s damn hard enough to get an impartial jury…we don’t need the jurors thinking that they’ll be crucified in the court of public opinion if they happen to render an unpopular verdict.It’s not the media’s place to decide whether something was “wrong” with a verdict or not. But if the media feels it must hold someone accountable, then go after the lawyers and the judges. They’re really the ones that are supposed to be the source of the verdict. The jury just confirms it.

  6. Anonymous

    The identities of jurors have been public since trials began centuries ago. The entire jury selection process is open to the public. Criminal defendants know their jurors’ names, so keeping the names from the press does not keep them from the bad guys. Juror interviews are done across the country and provide valuable information to lawyers, judges and the public. There is no need to adopt a Kafka approach to juries. In individual cases when a danger is present, the jurors’ names can be kept confidential including, in rare cases such as those involving organized crime, from the defendants and the press.

  7. Anonymous

    “I personally would place survival as a higher priority than the obvious free press concerns.”-Blogger, 2007″Give me liberty or give me death” -Patrick Henry, March 23, 1775Oh, please. Jurors’ lives aren’t endangered by talking to the press. It’s not as if the Standard-Times wouldn’t have printed their addresses. That’s for the governor to do. But seriously, it’s every citizen’s job to sit on a jury. And that responsibility gives a juror a .000001 chance of being targetted, I’m sorry, but so be it. When did we all become so zombified about liberty and so wimpish about safety? Grow some stones, people.

  8. Anonymous

    Listen up, and listen well, Dan.People don’t appear for jury duty voluntarily. They are subpoenaed by the court, and required to appear*. If people had to worry about whether they were going to be placed in possible harm because they were called to (subpoenaed for) jury duty, just how many people do you think might ignore the subpoena? You wouldn’t have a lot of people subjecting themselves to jury duty, would you?If a juror wants to “out” him or herself, fine. For the courts to out them, no.*Unless they leave the jurisdiction, of course.–raj

  9. Anonymous

    Did the Standard Times indicate if it would appeal this to the U.S. Supreme Court? It strikes me that this is appealable on the basis that the SJC’s ruling is unconstitutional.- Bill Densmore, Williamstown, Mass.

  10. Carol Steinfeld

    Is it true the Standard-Times has been purchased by Gateway papers and will merge with the Fall River paper?

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