Before 2004, few people had heard of Ruth Jordan. She was a seventy-nine-year-old grandmother who lived in the Upper East Side of Manhattan and had been employed as a teacher before going to New York Law School. She worked at a couple of law firms after passing the bar in 1981. Ms. Jordan had lived a relatively peaceful and unremarkable life. All of this changed when she was chosen as Juror Four in the high-profile trial of two Tyco executives accused of stealing $600 million from the company. During the six-month trial, Ms. Jordan and the other jurors performed their duties and listened to both sides’ arguments. The media was covering the trial intensely, but reporters left the jurors alone, as is the custom among journalists. But during deliberations, Ms. Jordan made a life-changing decision: she swept her hair away from her face in front of the defense. Some journalists interpreted her action as flashing an “OK” sign to defense counsel, which supposedly indicated her intent to hold out for acquittal. Her smiles and nods throughout the trial also made some question her intentions. The following morning, the Wall Street Journal and the New York Post published her name and their interpretations of her hand gesture the previous day. Following publication, Ms. Jordan received a threatening phone call, and a few days later an anonymous letter threatening her if she acquitted the defendants. The presiding judge declared a mistrial the next day, after nearly six months of arguments and deliberations. This case exemplifies some of the worst problems that can arise when courts do not adequately protect juror privacy interests.
During the last thirty years, courts have expanded the First Amendment to include a public right of access to certain criminal trial proceedings. That same period has witnessed a general acceptance of the idea that people have privacy interests that deserve protection. The rise of the modern media and its increasing presence in courtrooms have forced judges to determine at what point the press’s First Amendment rights and juror privacy interests meet or overlap. Judges found that these interests intersected in many different ways, resulting in seemingly contradictory case law.
One solution increasingly used by judges to combat what some see as media infringement into the courtroom is to empanel anonymous juries. The questions of whether and to what extent juror privacy issues can justify an anonymous jury largely depend on whether a court finds a presumptive First Amendment right of access to juror information. While other federal courts in the past twenty years have both recognized and rejected this right, the Third Circuit remained relatively silent on the issue. But on August 1, 2008, the Third Circuit tackled the issue of a First Amendment right to juror names in the case of United States v. Wecht.
Wecht involved a criminal defendant who garnered international fame and publicity for his work as both a public coroner and an author of books about celebrity murders and autopsies. The intense pretrial media attention and the possible improper motives of the defendant’s friends and enemies caused the district court judge in the underlying case to issue an order in which he declared that the court would withhold jurors’ identifying information from the public. Local newspapers filed an interlocutory motion appealing the court’s use of an anonymous jury.
In Wecht, the Third Circuit Court of Appeals addressed the issue of whether the press and the public have a qualified First Amendment right of access to the names of prospective and actual jurors. The court had the opportunity to address not only whether the right of access existed, but also at what stage during the trial it attached. The court found that a right of access exists, and, with limited consideration, held that it attaches prior to empanelment. The Third Circuit is the only federal appellate court to find that the right of access attaches before trial. As a result, the majority contradicted the most analogous case law and instead based its opinion on a flawed analysis of a test adopted by the Supreme Court and a view of the district court’s factual findings that lacked the deference they deserved. The holding took away the deference once granted to judges to decide whether or not to empanel an anonymous jury in a criminal case, and placed juror privacy interests at risk, particularly in high-profile cases.
This Note addresses the important analytical disagreements that exist between the majority in Wecht and both the dissent and other courts. It argues that the media’s First Amendment right of access should not attach until after the trial concludes. Given the increasing presence of the media in courtrooms and the changing nature of trial coverage, threats to juror privacy interests are matters of pressing concern. Part II delineates the development of the laws surrounding the First Amendment right of access and the use of anonymous juries. Part III details the factual and procedural history of United States v. Wecht. Part IV summarizes the Third Circuit’s analysis in Wecht, including Judge Franklin Stuart Van Antwerpen’s lengthy dissent. Finally, Part V describes various flaws in the majority’s analysis while highlighting arguments that the court could have considered and other courts should address in subsequent cases.