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.

Josh Wolf’s costly victory

Judith Miller testified. So did Tim Russert. But Josh Wolf, a blogger and freelance videographer, won a partial victory yesterday by walking out of jail without having to appear before a grand jury. The San Francisco Chronicle has the details.

Wolf spent seven and a half months behind bars rather than turn over unused footage of an anarchists’ protest he had covered in July 2005 and answer prosecutors’ questions about violent incidents he had witnessed. In the end, he agreed to give up the footage in return for not having to testify. He also posted it on his Web site.

In a statement given in front of San Francisco City Hall and reposted on his blog, Wolf, 24, said in part that he considered not having to testify more important than turning over the video:

Contrary to popular opinion, this legal entanglement which has held me in Federal Prision for the past eight months, has never been about a videotape nor is the investigation about the alleged attempted arson of a San Francisco police vehicle as the government claims. While it is true that I was held in custody for refusing to surrender the tape and that the justification for making a federal case out of this was the police car, things are not always as they appear. The reality is that this investigation is far more pervasive and perverse than a superficial examination will reveal.

When I was subpoenaed in February of last year, I was not only ordered to provide my unedited footage, but to also submit to testimony and examination before the secretive grand jury. Although I feel that my unpublished material should be shielded from government demands, it was the testimony which I found to be the more egregious assault on my right and ethics as both a journalist and a citizen.

Wolf’s case is about the right of journalists — never fully recognized, and under increasing assault in recent years — to protect their confidential sources and unused notes, video footage and other materials from the prying eyes of prosecutors.

Wolf’s case was especially egregious, as this Online Journalism Review story explains, because the investigation was shifted from state court, where Wolf might have enjoyed the protection of California’s shield law, to federal court, where there is no shield law. The argument — that a San Francisco police cruiser damaged by protesters was paid for in part with federal anti-terrorism funds — is so weak as to be laughable.

With his partial victory yesterday, Wolf did not succeed in changing the law. But he showed that a journalist — even an independent blogger whose journalistic credentials are not clearly established — can generate enough publicity that the authorities will eventually back down.

The Committee to Protect Journalists hails Wolf’s release; so does the Society of Professional Journalists.

In February, Amy Goodman interviewed Wolf for “Democracy Now!”