Arizona Supreme Court to decide if public has right to know jurors' names

By Howard Fischer
Capitol Media Services
PHOENIX -- The Arizona Supreme Court is being asked to decide if the public has the right to know the names of jurors who are deciding criminal cases.
At a hearing Tuesday, Evan Steele urged the justices to overturn lower court rulings and even court rules that now keep those names secret, not only during a trial but afterwards. He said the First Amendment guarantees the right of the public to know how justice is being administered -- and by whom.
But Justice Clint Bolick said he isn't buying the argument that constitutional provision specifically requires the disclosure of those names. And he told Steele that there are conflicting issues.
"We have a privacy clause in our (state) constitution,'' Bolick said.
"And it seems to me that the state has very, very significant interests in protecting privacy,'' he continued. "It's not simply a First Amendment issue.''
Steele conceded the point. For example, he said a judge might conclude it would be dangerous to make juror names public, such as in a trial where jurors are deciding the guilt or innocence of a member of a criminal drug cartel.
But he said that the presumption should be that the information is public unless a trial judge has a specific reason -- and states it on the record -- why it should be withheld.
The lawsuit case stems from two criminal trials in Cochise County where the judges use an "innominate'' jury, meaning one where jurors are publicly identified only by number but whose names are provided to the parties.
In both cases, the public was permitted to attend both jury selection and the trials. But the judges refused the request by David Morgan, publisher of the Cochise County Record, to disclose 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 reads legal precedent as favoring public disclosure when it relates to the functioning of government.
"I'm kind of struggling with the idea of how to juror names, how does giving access to the names of private individuals relate to the 'functioning of government,' '' he asked.
Steele said it starts with the (ITALICS) voir dire (ROMAN) process where the lawyers get to question prospective jurors, "who's going to be serving on the jury, and who going to be making the decision in criminal cases, who's going to be sending people away for years.''
"The judge sends people away for years,'' Brutinel responded. "The jury makes determinations of fact.''
Other justices expressed their own doubts about the arguments.
"You can sit there and watch,'' said Justice Bill Montgomery. "Access to (ITALICS) voir dire (ROMAN) hasn't been denied.''
Steele, however, said having a name allows the public or the media to reach out to jurors for interviews.
"There's no right to interview a juror,'' Montgomery responded.
Steele said there is a particular need for this kind of openness in criminal cases. He said that interest goes beyond that of the defendant in getting a fair trial and the victim's interests in the outcome.
"The public has an interest, and a recognized interest, according to the (U.S.) Supreme Court, in seeing justice done,'' Steele said.
The case has drawn some national attention, with a brief in support of Morgan filed by The Reporters Committee for Freedom of the Press. Attorneys for the group argued, as did Steele, that the names of jurors and prospective jurors have historically been open to the press and general public.
"Access to juror names allows the press to perform the close observation and searching inquiry necessary to ensure fairness and the appearance of fairness,'' wrote attorney Andrew Fox.
"The news media can, for instance, publicly verify that jurors and prospective jurors have truthfully answered the questions put to them during (ITALICS) voir dire. (ROMAN)'' he wrote. "Similarly, news reporting made possible by access to juror names can raise public awareness about patterns and practices in the jury selection process, including implicit bias or potential discrimination.''
That last argument did not impress Montgomery. He noted 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 ruling.
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