Court vindicates public defender who balked at sealing of juror questionnaires

By David Hudson
The Freedom Forum Online

12.28.00

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Finding that the First Amendment trumps privacy concerns, a California appeals court reversed contempt charges against a public defender whose office refused to turn over juror questionnaires to the court for sealing.

Last March, Eliel Elpidio Brown was convicted of second-degree murder in the Alameda County Superior Court after a 17-day trial. Before the trial, every member of the jury pool was required to fill out an eight-page questionnaire to assist the attorneys with juror selection.

The questionnaires contained detailed information about the prospective jurors, such as work experience, religious affiliations and educational background.

After the trial court sentenced Brown on May 18, Judge Roy Hashimoto asked the deputy public defender who represented the defendant to return copies of the juror questionnaires.

The attorney from the public defender's office refused, saying that he had highlighted and made notes on the pages. The attorney claimed the pages were attorney work product that needed to be preserved for Brown's counsel on appeal. (Brown has appealed his murder conviction).

On May 25, the trial court held a hearing at which time the head of the Public Defender's Office of Alameda County, Daine A. Bellas, testified. Bellas testified that her policy was not to turn over any part of the public defender files, which she described as "sacrosanct" and said she was "loathe to begin separating out from our files portions that under the law we believe are a rightful part of our public defender case file."

Hashimoto then held Bellas in contempt of court. Both sides agreed that because the questionnaires were withheld under her policy, Bellas was the proper person to be subjected to the contempt order.

On appeal, the California Court of Appeals, First Appellate Division, reversed in Bellas v. The Superior Court of Alameda County.

The California appeals court cited the U.S. Supreme Court's 1984 decision Press-Enterprise Co. v. Superior Court of Cal. for the proposition that jury selection proceedings are presumed to be open to the public.

"The presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest," the appeals court wrote in its Dec. 18 opinion.

The appeals court also cited California case law for the proposition that juror questionnaires should be as "fully accessible to the public" as any other phase of the trial, including the oral process of jury selection.

"It is enough that these decisions make clear that the content of juror questionnaires are publicly accessible," the appeals court wrote, "unless the reason for ordering them sealed outweighs the presumption of open access to records of judicial proceeding, the limitation on access is tailored as narrowly as possible, and the trial court's findings are articulated with enough specificity that a reviewing court can determine whether a confidentiality order was properly entered."

Applying this standard, the California appeals court noted that Hashimoto failed to weigh "the necessity for sealing against the exigencies of public access."

The appeals court noted that the California legislature had shown concern over juror privacy, but stated that "the First Amendment prohibits the [indiscriminate] sealing of these questionnaires."

The court also noted the conflict between privacy and open access, writing: "The otherwise understandable desire to preserve juror privacy conflicts with the constitutional mandate requiring public access to most information about the private lives of potential jurors."

A possible solution to the conflict, according to the appeals court, is to state in "unambiguous language" on juror questionnaires that the information will become public record, and provide the alternative that jurors can orally respond to questions about "sensitive personal data" in the judge's chambers with the attorneys present.

"The First Amendment of the United States Constitution guaranteeing public access to judicial proceedings overwhelms any countervailing privacy interests of prospective jurors as to the content of questionnaires they complete," the appeals court wrote.

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