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Friday, July 16, 2010

Courts - "Posner Rips Easterbrook on Juror Anonymity Question"

That is the heading of this WSJ Law Blog entry by Ashby Jones, referencing the 18-page dissent by Judge Posner filed July 14th and linked in this ILB entry from that date.

The WSJ blog also points to this story today in the Chicago Tribune, by Ameet Sachdev. Well worth reading! A quote:

Zagel told media organizations in May that he would withhold juror names until after a verdict. The Tribune, The New York Times and other media outlets made a formal request for the names before the start of the trial last month. They argued that Zagel's decision went against the U.S. tradition of open trials and that the First Amendment entitled them to the names.

Zagel disagreed, saying in court that he worried about jury tampering and harassment in an age of Facebook and Google because of the high-profile nature of the case. In essence, he ruled that the integrity of the jury trumped the public's right to know who would be deciding the fate of the former governor.

The media organizations took their objections to the appellate court. On July 2, a three-judge panel ruled that Zagel acted too hastily in deciding to defer disclosure of jurors' names and ordered the judge to a hold a hearing on the media's request.

While Easterbrook's opinion will require Zagel to reconsider his position, the panel didn't rule that the jurors' names should necessarily be made public. Still, throughout the opinion, Easterbrook said that under previous case law, there is a presumption of access to the names of jurors as soon as they are seated and that any effort to keep those names secret must be backed by actual evidence. He was joined by Judges Diane Wood and John Daniel Tinder.

Posner, who was not involved in the appeal, nevertheless found a way to air his misgivings through a rarely used procedural move. He explained himself in his opinion, filed Thursday.

One unnamed judge on Monday asked for a vote over whether the full 16-member appellate court should rehear the media case, known as "en banc" review. Typically en banc hearings are requested by losing parties in appellate decisions.

When a majority of the judges voted against the en banc hearing, Posner explained why he thought the issue merited the attention of the full court.

In his opinion, Posner quickly came to Zagel's defense. In the first sentence, he wrote: "An experienced trial judge made a reasonable determination that the release of jurors' names before the end of the trial would expose the jurors to the widespread mischief that is a daily if not hourly occurrence on the Internet."

Posner then began a scathing review of Easterbrook's decision, calling it "unsound and confusing."

He attacked the presumption of media access. "Jurors are entitled to be treated with respectful regard for their privacy and dignity, rather than as media prey."

He said the panel ignored the consequences of Zagel having to possibly renege on a promise made to jurors and argued that there's no need for a further hearing. "The jurors may well be upset, concerned for their privacy, fearful of the prospect of harassment and angry at having been induced by false pretenses to agree to take months out of their life to perform jury service."

Posner even went so far as to say that Zagel might have to declare a mistrial.

It's highly unusual for a judge to speak so harshly of a previous opinion, Monico said. Putting aside issues of civility, the controversy raises more questions. Is there a real concern of jury tampering if names are released before the end of the trial? What influence will Posner's opinion have on the hearing?

Posted by Marcia Oddi on July 16, 2010 08:12 PM
Posted to Ind. (7th Cir.) Decisions