By Howard Fischer
Capitol Media Services
PHOENIX — The Arizona Supreme Court is being asked to decide whether the public has a right to know the names of jurors deciding criminal cases.
In a hearing on Tuesday, Evan Steele urged judges to overturn lower court rulings and even court rules that now keep those names secret, not just during a trial but afterwards. He said the First Amendment guarantees the public’s right to know how justice is administered — and by whom.
But Judge Clint Bolick said he did not buy the argument that a constitutional provision specifically requires the disclosure of such names. And he told Steele there were conflicting issues.
“We have a confidentiality clause in our (state) constitution,” Bolick said.
“And it seems to me that the state has very, very important privacy interests,” he continued. “It’s not just a First Amendment issue.”
Steele conceded the point. For example, he said a judge might conclude that it would be dangerous to make the names of jurors public, such as in a trial where jurors are deciding the guilt or innocence of a member of a criminal cartel. drug.
But he said the presumption should be that the information is public unless a trial judge has a specific reason — and puts it on the record — why it should be withheld.
The trial case stems from two criminal trials in Cochise County where judges use an “unnamed” jury, that is, a jury where jurors are publicly identified only by number but whose names are provided to the parties.
In both cases, the public was allowed to witness both the jury selection and the trials. But the judges refused a request from David Morgan, publisher of the Cochise County Record, to release the names publicly.
Morgan had no better luck with the Court of Appeals, leading to Tuesday’s hearing at the Supreme Court.
At Tuesday’s hearing, Chief Justice Robert Brutinel said he interprets the case law as favoring public disclosure when it relates to the workings of government.
“I’m kind of struggling with the idea of how to swear names, how giving access to names of individuals relates to the ‘workings of government,'” he asked.
Steele said it starts with the voir dire (ITALIC) (ROMAN) process where attorneys can question potential jurors, “who’s going to be on the jury and who’s going to make the decision in criminal cases, who’s going to be dismiss people for years.”
“The judge sends people back for years,” Brutinel replied. “The jury determines the facts.”
Other judges expressed their own doubts about the arguments.
“You can sit and watch,” Judge Bill Montgomery said. “Access to the voir dire (in ITALIC) (ROMAN) was not denied.”
Steele, however, said having a name allows the public or media to contact jurors for interviews.
“There is no right to question a juror,” Montgomery replied.
Steele said there is a particular need for this kind of openness in criminal cases. He said the interest goes beyond the defendant’s interest in obtaining a fair trial and the victim’s interest in the outcome.
“The public has an interest, and an acknowledged interest, according to the (US) Supreme Court, in seeing justice done,” Steele said.
The case received national attention, with a brief in support of Morgan filed by the Journalists Committee for Freedom of the Press. Class attorneys argued, as did Steele, that the names of jurors and potential jurors have always been open to the press and the general public.
“Access to jurors’ names allows the press to conduct the thorough observation and research investigation necessary to ensure fairness and the appearance of fairness,” attorney Andrew Fox wrote.
“The news media can, for example, publicly verify that jurors and prospective jurors answered questions put to them honestly at the voir dire (in ITALIC). (ROMAN),” he said. writing. names can raise awareness of patterns and practices in the jury selection process, including implicit bias or potential discrimination.”
This last argument did not impress Montgomery. He noted that there are people whose surnames come from those who marry and may not reflect their actual ethnic or racial background.
No date has been set for a judgment.
On Twitter: @azcapmedia
By Howard Fischer