Appeals panel rejects challenge to anonymous jury in Louisiana corruption trial

By The Associated Press

05.03.01

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NEW ORLEANS — The jury that convicted Louisiana's insurance commissioner, Jim Brown, will remain anonymous, but the judge in the corruption trial was wrong to tell reporters not to "circumvent" her order keeping the names secret, a federal appeals court panel has ruled.

A three-judge panel of the 5th U.S. Circuit Court of Appeals this week rejected arguments by two newspapers, a wire service and a television station. But it did side with the news media on the most important part, attorney James R. Swanson said.

"I think the court did vindicate our position that prior restraint on the media's lawful newsgathering activities is not going to be permitted. And that's good," he said.

It will take a couple of days to decide whether to appeal, he said.

The 5th Circuit rejected the news media's arguments that U.S. District Judge Edith Brown Clement should have released the jurors' names and pretrial questionnaires after the trial.

"The judge's power to prevent harassment and protect juror privacy does not cease when the case ends," the appeals panel said.

It also rejected arguments that the combined anonymous jury and gag orders violated the constitutional right to open trials.

Brown was sentenced to six months in prison and a $50,000 fine for lying to an FBI agent about the liquidation of a failed insurance company. He has been suspended from his job but is free on bond while he appeals.

The case stemmed from an earlier investigation of former Gov. Edwin Edwards' dealings with riverboat casino operations. Edwards was convicted of racketeering in the gambling case but was acquitted in the insurance matter. He, too, is free while appealing his conviction.

Both cases were based on federal wiretaps on Edwards' office and home. Agents said those wiretaps contradicted what Brown told the FBI agent.

The appeals panel's ruling dealt with the news media's appeal only. Brown's appeal has not been filed with the court, and he said he would be attacking the anonymous jury on totally different grounds.

"I don't read this as damaging to my case at all," Brown said.

The Associated Press, New Orleans' Times-Picayune, The (Baton Rouge) Advocate, WDSU-TV and the Louisiana Press Association challenged the judge's orders after the trial ended.

"The court went to extraordinary lengths to preserve the integrity of the jury system and conduct a fair trial in the face of relentless publicity, some of it generated by the parties themselves," said the opinion written by Judge Edith H. Jones and released May 1. "Eager media have entertained the citizens of Louisiana and beyond with nonstop coverage of the current prosecutions of Louisiana's colorful ex-governor."

For the most part, Clement was within her bounds, Jones wrote for the three-judge panel that included E. Grady Jolly and Jerry E. Smith.

The panel rejected arguments that Clement should have given a legal explanation for her order.

"It rests on an earlier promise of anonymity, which itself was grounded in well-documented threats by the media and the defendants to jurors' privacy and independence," Jones wrote. "The drumbeat of publicity surrounding the Edwards prosecutions continues to this day. Requiring the court to recite such details and repeat obvious facts would be a meaningless exercise."

Clement also told jurors that any who wanted to talk to reporters could do so, and asked them, one by one, if they wanted their names made public. None did.

"The measures used by the district court, while at the outer limit of permissible restrictions, were narrowly tailored to prevent real threats to the administration of justice, not just in this case but in the subsequent related prosecutions," Jones wrote. "If jurors voluntarily waive their anonymity and consent to interviews on matters other than jury deliberations, so be it. They need not become unwilling pawns in the frenzied media battle over these cases."

Jones also noted that, after their convictions in the various cases involving Edwards, defendants filed motions accusing jurors of improper behavior.

"Without continuing anonymity, jurors would remain vulnerable to abuse by those acting for the defendants. There may be cases where a district court would abuse its discretion by refusing to revoke an order of juror anonymity post-trial, but this is not one of them," she wrote.

Attorneys for the news media argued that Clement's order against "circumvention" of or "interference" with the anonymous jury would keep reporters from using any information that they got independently, outside the court.

If Clement meant only that reporters could neither reveal jurors' identities nor get confidential court records, the order would stand, Jones wrote.

"It could be tricky to determine how much information revealed in an independently gathered news article might compromise juror anonymity," she wrote. "Nevertheless, a violation of the orders would subject the press to sanctions. The orders thus plausibly constituted a prior restraint because it gagged the press from reporting some kinds of independently gathered stories pertinent to the trial."

The orders did not violate the right to a fair and open trial, she wrote.

"Very real threats were posed by excessive media coverage, by the trial participants' eagerness to manipulate the News Media, and by the risk of jury harassment and taint. The judge was empowered and entitled to counteract each of these threats in order to assure a fair trial," Jones wrote.

And she said the public got plenty of news.

"The public knew what was going on. They knew that the jury rendered split verdicts, exonerating all but defendant Brown and convicting him only on some of the counts. The public can perceive that the jurors were neither in the prosecution's pocket, nor, because of their anonymity, could they have been improperly influenced by the defendants. The result of the trial seems to belie any contention that the public's rights to a transparent criminal justice system were unconstitutionally compromised."

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