On The Case

1st Circuit: In criminal justice system, transparency (still) trumps juror privacy

(Reuters) - Nearly 30 years ago, the 1st U.S. Circuit Court of Appeals weighed jurors’ privacy concerns against the public benefit of assuring the legitimacy and fairness of the criminal justice system. In 1990’s In re Globe Newspaper, the appeals court held that public faith in the system depends on accountability. The court said that Massachusetts’ jury plan requires trial judges to release the names and addresses of jurors after the jury has delivered a verdict. That presumption of post-verdict public disclosure holds, according to the 1st Circuit, unless judges offer specific reasons why the disclosure would violate “the interests of justice,” by, for instance, compromising jurors’ safety.

The world has changed a lot since 1990, when the Internet was in its infancy and social media wasn’t even a gleam in 6-year-old Mark Zuckerberg’s eye. U.S. District Judge Richard Stearns of Boston described our times as “a less innocent and more threatening age” in a 2017 decision in which he denied a motion by the Boston public radio station WBUR to disclose the names and addresses of jurors in the prosecution of Glenn Chin, a pharmacist charged with racketeering for his role in the New England Compounding Center scandal that led to a nationwide outbreak of meningitis in 2012.

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Judge Stearns originally said in the Chin case that he would not release jurors’ names and addresses at all without a protective order to guard against jurors’ information being disseminated via the Internet. He later amended the opinion to withdraw the protective order demand but said he wouldn’t disclose jurors’ names and hometowns until after Chin’s sentencing – and would not reveal their specific addresses even then. The judge said he understood why transparency is important, but said that in our “less innocent” times, he was worried that jurors’ fears of exposure could compromise their ability to deliver fair and impartial verdicts.

Judge Stearns’ ruling set up a fascinating question at the 1st Circuit: Does the advance of technology change the balance of equities between jurors’ privacy rights and the public’s right to confidence in court proceedings? In the age of social media, must jurors be shielded from public scrutiny in order to render fair decisions?

Not according to the 1st Circuit’s decision last week in U.S. v. Chin. The appeals court sided with WBUR and its lawyers from Prince Lobel Tye, holding that the advance of technology hasn’t changed the analysis in its 1990 Globe case.

“We recognize, of course, that In re Globe was decided decades ago and thus well before the first tweet was tweeted,” wrote Judge David Barron for a panel that also included Judge Bruce Selya and Judge Gary Katzmann of the U.S. Court of International Trade, sitting by designation. “As the district court emphasized, there is now a greater potential for the public release of a juror’s name, and, especially, a juror’s address, to be more intrusive and concerning than would have been the case in an era in which social media was unknown. But, these technological changes have by no means diminished the need for accountability and transparency in our system of justice.”

To be clear, the 1st Circuit decision is rooted in the Massachusetts jury plan, not the First Amendment or the common law presumption of public access to court proceedings. There are still lots of federal jurisdictions in which juror addresses are presumptively private, as the court-appointed amicus defending Judge Stearns’ order, Gregory Dubinsky of Holwell Shuster & Goldberg explained in a brief to the 1st Circuit.

But WBUR counsel Jeffrey Pyle told me it’s important that the appeals court refused to be swayed by vague warnings about how social media might impact jurors. “We have a resounding rejection of the notion that the Internet changes the equation when it comes to transparency in the criminal justice system,” Pyle said. “I have sympathy for jurors who are pressed into service (and) have to endure media calls. But the alternative is that justice is meted out by anonymous people.”

Importantly, according to Pyle and WBUR’s media amici, there’s no history of jurors in the U.S. suffering actual reprisals for their verdicts. Dubinsky, the lawyer appointed by the 1st Circuit to argue for juror privacy, cited several instances in which jurors in high-profile cases were called out on social media. WBUR’s reply brief nevertheless argued, quite convincingly, that none of those jurors was put at risk by court disclosure of their names or addresses. “There is no evidence that threats to jurors today have changed at all since 1990, let alone grown so great as to justify juror anonymity for days, weeks or months after verdicts in high-profile cases,” the radio station brief said.

In our interview, WBUR lawyer Pyle reiterated that point: “The bottom line is that no juror has come to harm. There just has not been any such event. Generalized fears have not come to fruition and are not likely to.”

I don’t think transparency advocates have heard the last of this issue, though. Remember, the 1st Circuit ruling is grounded not in the U.S. Constitution but in Massachusetts’ federal court jury rules – and the decision points out that those rules can be amended if the court is worried about juror privacy. Clearly, some of judges on that court are. As WBUR’s opening brief explained, Judge Stearns’ refusal to disclose jury information right after the verdict in the Chin case was not the only recent instance of Boston federal court trial judges evading the 1st Circuit’s directive from the 1990 Globe case.

Judge Stearns previously delayed the release of identifying details about the jury that acquitted Chin’s former boss, NECC co-founder Barry Cadden, on murder charges – a decision that turned out to be controversial when WBUR reporter David Boeri uncovered jury confusion about their instructions when he interviewed the jury foreman at Cadden’s sentencing. U.S. District Judge William Young, in a ruling Judge Stearns cited in his original decision to deny WBUR’s motion in the Chin case, imposed a protective order on information about jurors in the prosecution of a Boston man accused of plotting to aid the Islamic State. The order, which Judge Young subsequently reconsidered and rescinded, would have required news organizations not to publish identifying information about jurors without their express consent because “we simply must come to understand that in this internet age, personal data remains accessible long after the news cycle in which it figures is forgotten.”

Dubinsky, the court-appointed amicus defending Judge Stearns’ restricted release of juror information, said he probably would not seek en banc review. (The 1st Circuit remanded the case to Judge Stearns to unseal jurors’ names and addresses or else to provide specific reasons for withholding identifying information.) But Dubinsky also said courts are going to have to keep grappling with questions about juror privacy in the Internet age.

“Today presents different challenges than we’ve faced in the past when it comes to juror safety,” he said. “If jurors fear backlash, that’s a threat to the fair and impartial administration of justice, and everyone should be concerned about it.”