Secret juries threaten integrity of judicial system
By Douglas Lee
Special to freedomforum.org
12.30.99
It's no wonder Illinois Public Act 91-0321 didn't make headlines.
Twenty-six pages long, the act contains a potpourri of changes to Illinois laws governing juries. Starting Jan. 1, counties can raise the daily amount paid to jurors above $15.50 if they wish. Jurors can recoup child-care expenses related to their jury service. Fees for demanding a jury trial are raised from $50 to $62.50 in some cases. And, oh, by the way, judges now can impanel secret juries.
The juror anonymity provision is the last amendment in the act, buried on page 26, short and to the point: "A judge may prohibit the release to the public of the name of any member of a jury ... if the judge finds that there would be a reasonable threat of harm to the juror if his or her name were released."
Even at their best, laws and court rulings permitting anonymous juries are dangerous. Most importantly, jury anonymity threatens the presumption of openness that has, until now, been the bulwark of our judicial system. In the past, a party or judge who wanted to close all or part of a judicial proceeding had to meet a heavy evidentiary burden. As many juror anonymity laws and rulings are written, however, either the need for secrecy is presumed or, as in the Illinois act, the standard for closure is diluted from compelling to "reasonable."
Second, jury secrecy laws and rulings are based on theories that have far-reaching and ominous implications. The premise behind the Illinois law, for example, is that jurors are entitled to anonymity if a reasonable threat of harm exists. In other cases, judges have allowed juror anonymity if they believed jurors would be harassed by the media. If these theories take root in our judicial system, their reach almost certainly will someday extend to witnesses, who are even more likely to be threatened or harassed. Will judges then start closing courtrooms in order to protect the identity of witnesses? If so, can completely secret trials be far away?
Third, laws and rulings creating juror privacy erode juror accountability. Jury verdicts in many cases have life-altering consequences. Jurors accordingly must feel — and bear — a responsibility for their decisions. Juror accountability already has been diminished by secret deliberations and the reality that, in most cases, jurors never will need to explain their verdicts. Shrouding jurors in additional secrecy diminishes their accountability even further.
The new Illinois act suffers from these defects and more. Unlike some of the more radical juror anonymity provisions, the act still requires that jurors be identified to the parties and their counsel. While this restraint is admirable, it guts the act of any logic.
From whom, for example, would a juror most likely feel a reasonable threat of harm? From a member of the public or from the accused drug lord or gang leader sitting at the defense table? Under the act, the criminal defendant has free access to the jurors' names and can without penalty disclose them to anyone he or she wishes. Realistically, the only interested people who will be denied the jurors' names will be reporters, which likely is one of the act's desired effects.
From a practical standpoint, the act also threatens a defendant's right to a fair trial. No matter how many times a judge tells a jury that the defendant is to be presumed innocent, the judge shatters that presumption by invoking the act. When a judge applies the act, he or she sends a clear message — the defendant is dangerous. Fair trials in this environment seem almost impossible to achieve.
Perhaps the most troubling aspect of the new Illinois law is that criminal statutes already prohibit all of the feared conduct. Jurors may not be harassed or threatened. Like the rest of us, they may not be beaten, robbed or killed. Their houses may not be burned down. These criminal laws and the penalties that accompany them have for two centuries deterred threats and actions against jurors. No evidence exists that threats against jurors are increasing. Nor does any evidence exist that the act, which contains no penalties, will afford jurors any additional protection.
Instead, the act seems designed only to permit judges to introduce secrecy into what had been open courtrooms. That, unfortunately, is the reasonable threat of harm in Illinois.
Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.
Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.