Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, September 30, 2010

Balancing the Media Right of Access and the Defendant's Right to a Fair Trial After U.S. v. Wecht

Seth A. Fersko has published United States v. Wecht: When Anonymous Juries, the Right of Access, and Judicial Discretion Collide, at 40 Seton Hall Law Review 763 (2010). Here is the abstract.

The United States was a young country in 1807 when proceedings began in Aaron Burr's treason trial. The former vice president sat accused of treason for allegedly conspiring to wage war against the United States. By all accounts, the trial was such a spectacle that the country had not seen anything like it before, even during the colonial period. Although newspapers at the time virtually ignored the courts, the Burr trial "captivated the American public's attention," and the newspapers happily obliged the public's interest. The news reports were so invasive and the editorials were so provocative that Burr alleged that the coverage prejudiced the jury against him. Acknowledging that some jurors might have formed opinions, Chief Justice John Marshall, serving as the trial judge, instructed the jury to remain open to the evidence and witness testimony. Despite the prejudicial media coverage, the jury acquitted Burr of treason.

Since 1807, courts have occasionally witnessed high public interest in criminal trials. In the early 1920s, the newspapers and public carefully followed the Sacco and Vanzetti arrests and murder trial. The media coverage continued throughout the defendants' appeals and right up to their execution. Reporters even tracked down the original jurors from the trial - seven years after the guilty verdicts - to ask whether, in hindsight, they thought that the trial was fair. The intensity and pervasiveness of the media's trial coverage, however, took on a new character in the 1950s with the advent of television and the growth of broadcast news.

The justice system witnessed one of the first modern media frenzies in the 1954 murder trial of Dr. Samuel Sheppard. The prosecution accused Dr. Sheppard, a "handsome, 30-year-old" doctor from an Ohio suburb, of brutally murdering his pregnant, thirty-one-year-old wife. The press's daily trial coverage included "[a]bout fifty reporters from newspapers, news services, radio and television networks, with perhaps twenty still and movie camera men...swarmed over the court house. Except [for] eight or ten seats in the last row, all places in the court room not occupied by participants and attendants [were] filled by the press. Not only were critics concerned about the fairness of the process to Dr. Sheppard, the trial also raised serious questions about the privacy of jurors because of the pervasive media coverage."

During the years following the Sheppard trial and Dr. Sheppard's appeal to the Supreme Court of the United States in Sheppard v. Maxwell, the legal community recognized the need to address how the media covers high-profile trials and the negative influence excessive media coverage can have on the trial itself. Congress also embraced the idea of greater judicial discretion and control over criminal proceedings. As a result, district courts have relied on case law, statutes, and their inherent judicial authority to address intense media coverage, including withholding jurors' identities from the public by using anonymous juries. In contrast, because of the media's First Amendment right of access and the inherent benefits of public trials and media scrutiny, the Supreme Court has voiced concern over excessive judicial measures that close proceedings from the public eye. For these reasons, in 1986, the Supreme Court adopted the "experience and logic" test. The "experience and logic" test seeks a balance between too much and too little public access under the First Amendment by instructing courts when proceedings must be open or may be closed.

Courts determine whether the "experience and logic" test weighs in favor of a First Amendment right of access by examining both the historical openness of the proceeding and the benefits and detriments of public access. If a First Amendment right attaches, then a presumption of openness applies. A court can close a proceeding and overcome this presumption only when detailed, case-specific findings reveal the necessity of closure. On the other hand, when the First Amendment does not attach, the courts need not overcome a constitutional burden to close the proceedings. Thus, courts have far greater discretion and control over the trial process when a First Amendment right does not attach because they do not need to overcome a constitutional presumption of openness.

The "experience and logic" test and the stability it achieves have worked well, but the U.S. Court of Appeals for the Third Circuit upset the status quo in United States v. Wecht ( Wecht II). In Wecht II, the Third Circuit held that the media has a First Amendment right of access to the names and addresses of prospective jurors. Yet legal tradition and policy considerations weigh against the Third Circuit's holding under the "experience and logic" test.

If Wecht II endures, district judges will lose a significant amount of discretion over the jury-selection process and will no longer control when or how the court releases prospective jurors' identities to the public in high-profile trials. Instead of using their inherent and statutory discretion, courts would first need to rebut a strong, constitutional presumption - rather than a common-law presumption - that the jurors' identities are publicly available. By making it more difficult for the district courts to exercise their discretion during jury selection, Wecht II ignores the history that led to the "experience and logic" test and the delicate policy balance that the Supreme Court and Congress achieved.

This Comment contends that, under the "experience and logic" test, the First Amendment does not apply to prospective jurors' identities during jury selection. Therefore, the First Amendment does not require that courts disclose prospective jurors' identities to the public when the parties have not finished jury selection in a high-profile case that lacks safety concerns. Part II of this Comment introduces the concept of the anonymous jury and the source of the district judge's authority to empanel an anonymous jury. Part II also presents the constitutional issues raised by an anonymous jury and the current case law addressing those issues. Part III discusses the unprecedented decision in Wecht II, which creates a constitutional right to obtain the identities of prospective jurors. Part IV analyzes the ways in which the Wecht II court misapplied the "experience and logic" test. Part IV also evaluates the potential effects of Wecht II and how, if followed, it might substantially affect the balance achieved between media-access concerns and concerns for juror privacy and systemic integrity.

Download the article from SSRN at the link.

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