Santa Clara Law Santa Clara Law Digital Commons Faculty Publications Faculty Scholarship 1-1-1994 The Anonymous Jury: Jury tampering by another name? Gerald F. Uelmen Santa Clara University School of Law, [email protected] Ephraim Margolin Follow this and additional works at: http://digitalcommons.law.scu.edu/facpubs Recommended Citation 9 Crim. Just. 14 This Article is brought to you for free and open access by the Faculty Scholarship at Santa Clara Law Digital Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Santa Clara Law Digital Commons. For more information, please contact [email protected]. I I 1rowing use of anony- mous juries in criminal trials presents a chal- The lenge to the fundamen- , tal values protected by the defendant's right to a jury trial: the presumption of in- nocence, and the requirement of proof of guilt beyond a reasonable doubt. It is important to understand the extent to which these fragile rights are burdened by jury anonym- Jury ity so that effective safeguards can be developed. Juror anonymity is an innovation that was unknown to the common Jury tampering by another name? law and to American jurisprudence in its first two centuries. Anonymity was first employed in federal prose- cutions of organized crime in New York in the 1980s. Its use has spread By EPHRAIM MARGOLIN more recently to widely publicized and volatile cases such as the federal and GERALD F. UELMEN prosecution of police officers ac- cused of beating Rodney King; the 114 Criminal Justice HeinOnline -- 9 Crim. Just. 14 1994-1995 II I I I I I IIIIII trial of African American defendants cess. Nevertheless, courts have al- where terrorist crimes are alleged alleged to have beaten Reginald lowed prosecutors to use this radical and American use of juror anonym- Denny, a white truck driver, during innovation as a tactical ploy-de- ity in cases to which the "organized the riots after the first Rodney King spite the potentially increased crime" or "terrorism" label is ap- verdict; and the trial of those accused chances of conviction-without bal- plied. In both situations, the label be- of the fatal World Trade Center ancing the frequently unproven as- comes a self-fulfilling prophecy, di- bombing in New York City. sertions of the prosecution against minishing the procedural protections In some of these cases, the defense the probability of harm for the de- available to the accused before the offered no objection to use of an fense and without requiring careful label's accuracy has been deter- anonymous jury. This judgment, monitoring and cautious scrutiny of mined. however, demands careful weighing the process. A shroud of secrecy pre- of anonymity's potentially harmful cludes any accumulation of data to impact on the defendant. The deci- assess the impact of anonymity. An American tradition sion can be described as a "tactical The showing necessary to justify judgment" only where the court al- anonymity can be made routinely in The public nature of the jury trial lows open-ended voir dire suffi- any case to which a prosecutor af- has been recognized since its in- ciently meaningful to permit an in- fixes an "organized crime" or "ter- ception. As the Supreme Court noted formed judgment call. Most often, rorism" label and attributes allega- in Press-Enterprise Co. v. Superior the defense operates in a fog, and tions of prior jury tampering to the Court of California, 464 U.S. 501, preservation of anonymity posttrial defendant by virtue of his or her 505 (1984): makes assessment of the process im- alleged control over "organized The roots of open trials reach possible. crime" or "terrorist" affiliates. back to the days before the Nor- Available evidence suggests that There is an eerie parallel between man Conquest when cases in Eng- anonymity may impose substantial attempts in Northern Ireland to re- land were brought before ... a burdens on a jury's deliberative pro- strict the right to a jury trial in cases town meeting kind of body .... Fall 1994 15 M HeinOnline -- 9 Crim. Just. 15 1994-1995 Attendance was virtually compul- court] may always sequester the determined that alternatives other sory on the part of the freemen of jury and change of venue is al- than anonymity must be employed the community .... ways possible .... to protect the jurors' safety and their Although the Supreme Court in The Fourth Circuit is not alone in deliberations in such cases. Press-Enterprise did not rely explic- having reached this conclusion. The The 1990 restoration of a federal itly on the Sixth Amendment right to Supreme Judicial Court of Massa- death penalty creates a serious a "speedy and public trial," the chusetts recently reversed an orga- anomaly in cases that permit use of Court nonetheless stated that there nized crime defendant's conviction anonymous juries. Jurors' identities has always been a "presumptive for being an accessory to first-degree may be kept from an "organized openness of the jury selection pro- murder on the ground that he was crime" defendant accused of drug cess" and that "how we allocate the deprived of his right to know the trafficking but not from a defendant 'right' to openness as between the prospective jurors' names and ad- accused of murdering a police offi- accused and the public, or whether cer who sought to arrest the defen- dresses. (Commonwealth v. Angiulo, dant for drug trafficking. we view it as a component inherent 415 Mass. 502 (1993).) Although the in the system benefiting both, is not ruling was based on a statutory right crucial." to a jury list in capital cases (Mass. The U.S. Court of Appeals for the Gen. Laws Ann. ch. 277, § 66 (West Organized crime Fourth Circuit, relying on Press-En- 1990)), the court noted the common The anonymous jury has become terprise and on the fact that histori- law origin of the requirement and a hallmark of organized crime cases. cally "everybody knew everybody the constitutional limitations on the In recent years, it has been trans- on the jury," rejected jury anonym- use of anonymous juries even in formed from a rare and unusual ity in In re Baltimore Sun, 841 F.2d noncapital cases. "last resort" into a standard tactical 74, 76-77 (4th Cir. 1988): A two-hundred-year-old federal weapon in the prosecutorial quiver. We think it no more than appli- statute requires the prosecution to The obvious effect of its employ- cation of what has always been furnish any defendant charged with ment was noted by John Markham, the law to require a district court a capital offense with "a list of the a former federal prosecutor: "[An ... to release the names and ad- veniremen ... stating the place of anonymous jury] ominously signals dresses of those jurors who are sit- abode of each venireman" at least the jurors that you are so dangerous ting .... We recognize the diffi- three full days before the com- that you cannot even be trusted with culties which may exist in highly mencement of trial. (18 USC § 3432 their names." (2(8) California State publicized trials ... and the pres- (Supp. 1992).) One century ago, the Bar Bull. 1 (June 1992).) sures upon jurors. But we think U.S. Supreme Court declared that The prejudice that a defendant the risk of loss of confidence in compliance with the statute's provi- suffers when tried by an anonymous the judicial process is too great to sions is mandatory, even when the jury is not unlike the prejudice suf- permit a criminal defendant to be defendant is acquitted of a capital fered by a defendant who is gagged tried by a jury whose members charge and convicted of a lesser of- and shackled in the courtroom. The may maintain anonymity. If... fense. (Logan v. United States, 144 cases upholding the use of court- the attendant dangers of a highly U.S. 263 (1892).) room restraints in the presence of a publicized trial are too great, [the More recent cases have declared jury make it clear that the defen- that the right arises from the nature dant's own personal courtroom con- of the charges, even if the prosecu- duct is the only trigger that can jus- Ephraim Margolin, a past president of tion does not intend to seek the tify this burden on his or her rights. the National Association of Criminal De- death penalty, and that failure to In Illinois v. Allen, 397 U.S. 337 fense Lawyers, is in private practice in comply with the statutory require- (1970), the Court conceded that the San Francisco. He teaches at the Univer- sity of California at Berkeley Law School ment is "plain error." (Amsler v. sight of shackles and a gag might and at Santa Clara University School of United States, 381 F.2d 37 (9th Cir. have a significant effect on the jury's Law. Margolin represented John Gotti 1967); United States v. Crowell, 442 attitude toward the defendant, but it before the United States Court of Appeal F.2d 346 (5th Cir. 1971).) Thus, the upheld the practice to control a dis- for the Second Circuit. Gerald F. Uelmen empanelment of an anonymous jury ruptive defendant. As the Court later is a professor of law and former dean at is precluded in capital cases in fed- explained in Estelle v. Williams, 425 the Santa Clara University School of eral court. U.S. 501, 505 n.2 (1976): "The con- Law. At this writing, he is co-counsel for The primary justification for using tumacious defendant brings this the defense in the 0.1.