Barring Reporters From Jury Selection:
Why a Recent Ruling in the Martha Stewart Case Was In Error

Soon, Martha Stewart's criminal trial -- in which she faces allegations of obstruction of justice, false statements to the government, and securities fraud -- will begin. The venue is the U.S. District Court for the Southern District of New York. The judge is U.S. District Judge Miriam Goldman Cedarbaum. And no doubt, members of the New York and national press corps will be in attendance.

But on January 15, Judge Cedarbaum ruled that the courtroom will be closed to the press and public when the questioning of prospective jurors in Stewart's case occurs. She also, however, ruled that she would release a transcript of the questioning the following day, while withholding the names of prospective jurors.

The judge's decision to bar the press was in error -- and the transcript she has offered as a substitute is not enough. Press freedom, as protected by the First Amendment, should be the freedom to witness proceedings, not just the freedom to review a cold transcript of what occurred. Accordingly, a judge should have very good reasons indeed before closing a courtroom -- and good reasons are lacking here.

A number of media entities have since asked the judge to reconsider her ruling -- and indeed, she should do so.

American courtrooms have traditionally been open to the press and public, and the Supreme Court has drawn upon this historic tradition in defining the First Amendment right of access. Beyond tradition, though, are there good reasons for court proceedings to be open to the press and public? Absolutely.

For one thing, the press and public should be able to judge the quality and character of the government's prosecutors and judges -- as well of as the defense attorneys provided by the government pursuant to the Sixth Amendment. Are we proud to have these people represent us when the stakes are at their gravest -- life versus death, imprisonment versus freedom, ruinous money penalties versus the status quo?

The press and public should also be able to witness and comment upon the fairness -- or lack thereof -- of what happens at trial. And jury selection is a crucial part of any trial -- so crucial, indeed, that many attorneys retain highly-paid jury consultants to help counsel them as to which potential jurors to challenge or strike, and which to retain.

Consider, for instance, the fairness issues that may arise within the Martha Stewart jury selection in particular. And remember, when you do so, how crucial the jury's decision in her case will be. It could dramatically improve Stewart's life -- or it could ruin it. (In addition, because her company relies so strongly on her name as a brand, its fortunes, and the livelihoods of thousands who work for her may be at stake).

During Stewart's jury selection, should potential jurors who've lost lots of money in the market be excluded, on the ground that they will not be able to render an unbiased verdict? Should a potential juror who subscribes to Martha Stewart Living or orders from the Martha Stewart catalog be excluded? Stewart is a person with many admirers and many detractors. Will either manage to make it onto the jury?

Members of the press and public are entitled to know, and decide for themselves, whether they believe the defendant is receiving a fair trial -- and assessing whether the defendant has been given the benefit of a fairly-chosen jury is the first step in making that judgment. That's one key reason why jury selection ought to be an open process, except in very rare and unusual circumstances.

Judge Cedarbaum gave two central reasons for closing jury selection.

First, Judge Cedarbaum expressed the fear that reporters might disclose the names of prospective jurors, in connection with their answers to questions they were asked in the course of the jury selection process. But instead of closing the proceeding, the judge could simply have had everyone refer to the prospective jurors by number -- not by name.

But what if someone slips up, and inadvertently uses a prospective juror's name? The judge could have addressed a potential slip-up in several ways. First, she could have sternly admonished onlookers not to disclose the name. Second, she could have made clear she would sanction anyone who did so -- both through harsh monetary sanctions, and by banning them from the courtroom in the future. Strong sanctions ought to prevent disclosure. And the press typically takes federal judges' orders very seriously.

Even if a disclosure of a prospective juror's name were to occur, it would hardly be a catastrophe. It's important to remember that judges can instruct prospective jurors that if they consider information private, then they may approach the bench. The judge can also tell them that if they do so, only the attorneys, the judge, and the court reporter -- and none of those sitting on the benches towards the back of the courtroom, including members of the press -- will be able to hear their answers. In most jury selection processes, no prospective juror is required to say anything deeply private in open court.

(Since the Stewart case is based on a stock sale, and the reasons for it, financial topics will likely come up again and again in the questioning of potential jurors. Judge Cedarbaum probably should also indicate to jurors beforehand if she considers general financial information -- income, stock holdings, losses and gains, and the like -- to be private.)

But as I said previously, prospective jurors have the option to approach the bench if they feel that giving a full and frank answer would require them to voice private information. And at the bench, jurors shouldn't feel any qualms about offering full and frank responses.

What about the judge's concern about an open courtroom undermining jurors' ability to give "full and frank" answers? In this case, the need for such answers has already been satisfied, to some extent, by the fact that the prospective jurors have already filled out a jury questionnaire.

Such questionnaires are common in complex cases like Stewart's, and they are usually lengthy and thorough. Typically, they are only seen by the attorneys and, potentially, the judge and court reporter. Smart lawyers tend to include in the private questionnaire any questions they fear might embarrass jurors to speak about in open court, in order to get the fullest and frankest answers possible.

Granted, some of the attorneys' oral questioning may end up following up on prospective jurors' responses to the questionnaires -- and in this sense, the privacy the questionnaire affords is not complete. But again, if the subject is sensitive, the colloquy among the attorneys, prospective jurors, and judge can be held privately at the bench.

Notably, there has been a strange twist with respect to the jury questionnaire in the Stewart case in particular. Despite Judge Cedarbaum's specific instruction to the contrary, a prospective juror anonymously posted some of the questions from the questionnaire on the Internet. And it is possible that this disclosure has played a role in the judge's decision to close the courtroom. If that is the case, however, the judge has opted for the wrong remedy -- for several reasons.

First, the posting reportedly listed the questions -- not anyone's answers. Thus, it hardly revealed any private information. Accordingly, it is a poor springboard for the judge's expansive concerns about juror privacy.

Second, it was a potential juror -- not a reporter or member of the public -- who posted the information and violated the judge's instruction. Thus, this disclosure could have been made even if the courtroom had been entirely closed to the press and public. (There is, of course, no way around allowing jurors themselves to read the jury questionnaire; they are ones who have to fill it out, and unless they are sequestered, they will inevitably have Internet access.)

In the end, this disclosure ought to cause Judge Cedarbaum to worry about a different problem: The risk that she will end up with a jury that includes a person willing to violate a judicial order. This is a serious risk: Someone willing to violate a court order may also be willing to disregard the judge's instructions on the law.

But the remedy is not to close the courtroom. It is, instead, to try to ferret out the potential juror who is the violator -- or, if that is impossible, to restart the process to make sure the law-violator is not in the mix.

Indeed, closing the courtroom may only make it more tempting for jurors to leak crucial info to the press, or to post it on the Internet anonymously. Jurors may feel that if there are no reporters there, then they themselves must become the reporters of this high-profile trial -- even if the court has ordered otherwise.

Readers may raise a question at this point: Don't all the alternatives -- bench conferences and jury questionnaires -- that I have suggested in this column actually tend to defeat the purpose of having an open courtroom in the first place?

After all, if the press is going to be sitting there watching a lot of secret conferences to which only the judge and attorneys are privy -- or watching jurors fill out (or take home) lengthy forms -- then to what extent is the court genuinely open, and to what extent is it effectively closed?

These are certainly good questions, in my view. I think there is room for strong First Amendment challenge to the overuse of bench conferences, the failure to release bench conference transcripts to the public, and the secrecy of jury questionnaires and jurors' answers. (While I think the juror who posted the Stewart jury questionnaire questions on the Internet was wrong to violate a court order, I don't think he was wrong in principle: There's no reason in the world that those questions shouldn't be made public.)

But in the system we have now, limited options exist. And both of the options I have offered -- bench conferences and questionnaires -- are frequently used by judges and are, at least, less drastic than closing the courtroom entirely. By employing these options, a careful judge can keep most of jury selection open -- shifting truly private topics into the realm of the bench conferences and questionnaires, and allowing all other topics to be aired publicly. And then, to the extent possible, that judge can choose to later release the non-private content of the bench conferences and questionnaires, as well (with suitable protections for juror anonymity, of course).

The key is to try to protect both jury privacy and press/public access -- not simply to sacrifice press access entirely by closing the courtroom.

My answer is a strong no. Attorneys would never accept this kind of substitute-- the poor man's option of selecting jury members without meeting them first. And the press and public shouldn't either.

As noted above, a major reason for press and public access to courtrooms is to ensure fairness. And it is impossible to judge whether jury selection -- including the judge's decision as to which jurors to strike for bias -- is fair, without actually seeing the jurors who are either excused or retained.

At least half of the benefit of jury questioning is the ability to observe a juror's demeanor. Facial expressions and intonation can give away far more than words can. Just as on the witness stand, demeanor during jury questioning can indicate whether a juror is telling the truth or fudging -- whether she is telling all she knows, or holding something back, or lying outright.

Mode of dress, too, may be deemed significant by the attorneys -- and by the press. For example, the defense team may opt to get rid of poor jurors on the theory that they will resent Stewart's wealth. Or, on the other hand, it might welcome them on the theory that they are unlikely to worry much about the stock market, and the harm Stewart's alleged false statements or alleged insider trading might have caused.

As with demeanor, mode of dress can play a key role in the assessment of why jurors have been excused or retained, and whether the choices made by the judge in jury selection are fair ones. Would it be fair if Stewart's jury did not include any stockholders? On the other hand, would it be fair if most jurors were stockholders who had lost money in the market?

Jurors are chosen in person for a very good reason -- because attorneys and judges want to see them with their own eyes. The press, under the First Amendment, ought to have the same right. And we should not lightly allow press and public courtroom access rights to be compromised -- for they are key to ensuring that we have an informed public, a strong judicial system, and courtroom procedures that honor the defendant's Sixth Amendment right to a fair trial.