Supreme Court justices said Tuesday that District Judge Jackie Glass was required to give far more substantive reasons than she did last fall when she refused to provide questionnaires of jurors in the O.J. Simpson robbery trial to the Review-Journal and other media outlets.
"She had to do more," Justice Michael Douglas said. "You should have some basis for closing off this information."
Chief Justice Jim Hardesty added that Glass faced a balancing test of deciding between the Sixth Amendment right of a fair trial for a defendant and the First Amendment right of a free press.
"What balancing test did the judge engage in?" he asked. "She did not do a balancing test."
For Glass to deny release of the questionnaires, Hardesty said, she had to make a finding that there was a "compelling state interest" to keep the information confidential.
In September, Glass decided not to release the questionnaires because she had promised jurors to keep the forms "in confidence, under seal."
Although five of the seven justices questioned Glass' decision, the Supreme Court did not make an immediate ruling in the case. Any decision it makes is expected to have widespread effects on future cases involving jury questionnaires.
The Review-Journal and The Associated Press appealed Glass' decision to withhold questionnaires of jurors at the beginning of the Simpson trial.
Though Glass initially said she would not release the questionnaires because of her promise to jurors, she later offered a more detailed reason in response to the appeal to the Supreme Court.
She said releasing the questionnaires before the end of the trial could have tainted jurors and jeopardized Simpson's right to a fair trial.
Glass added that excessive media attention the case attracted -- including a Web site that posted odds on the verdict -- created "substantial potential" to taint the jury if the questionnaires were released.
After the trial, Glass released the questionnaires, but much of the content had been redacted.
Simpson and co-defendant Clarence "C.J." Stewart were convicted on charges of armed robbery and kidnapping in connection with a heist of sports memorabilia at the Palace Station in 2007. Simpson was given a prison term that will see him serve at least nine years.
In arguing for the media outlets, Las Vegas lawyer Don Campbell said there are at least four state and federal appeals court decisions that have held the right of the press to the juror empaneling process extends to jury questionnaires.
Campbell maintained that under those decisions, a judge must state a compelling state reason why the press, or any citizen, should be denied access to jury questionnaires.
That reason cannot be just that "the judge thinks" the information should be held confidential, he said.
"We aren't asking the court to do anything unusual or out of the ordinary (today)," he added.
Deputy Attorney General Jill Davis said Glass was concerned about how the Simpson case was being played up in the media and concerned about the privacy of jurors.
"This was more of an exceptional case," she added.
It had been brought to Glass' attention that bets were being placed on the trial, Davis said.
Campbell denied that bets were made on the trial. He said an off-shore betting site for one day placed odds on the trial but bets never were placed.
In response to questions posed by justices, Davis said the questionnaires should have been released earlier than they were.
When asked about her comment after the hearing, Davis said she was talking about "future cases."
She said the case is one of "first impression" for the court and its decision will guide judges in the future.
Contact Review-Journal Capital Bureau Chief Ed Vogel at evogel @reviewjournal.com or 775-687-3901