At the rate we are going, our American juries are going to look like South American drug trials, the jury box packed with a dozen black-hooded jurors to conceal their identity and prevent retaliation.
What retaliation might be anticipated in the robbery and kidnapping trial of O.J. Simpson is speculation best left the knife-sharp wits of the late-night television talk show hosts.
Nonetheless, Judge Jackie Glass has virtually shrouded the jurors in the case. In her Decorum Order, she dictated, "No party, counsel, representative of the media, or member of the public shall publish in any way the name or address of any juror or prospective juror, nor a likeness of any juror or prospective juror, in a manner that discloses or may disclose the identity of that person."
The rationale we are given is that in such a high-profile case someone might use juror identification to attempt to taint the jury in some vague, unspecified way. That, of course, is against the law and can result in serious jail time.
Two can play at hypotheticals. Perhaps one of the jurors sleeps in a Buffalo Bills No. 32 jersey. The guy who sold him the jersey knows it and remembers the hero-worship talk. But he doesn't know who is on the jury.
The public, assuming they can find a seat, can walk in off the street and eyeball the jury, but that's OK. It is a public trial, right?
But you folks playing along at home are being kept in the dark. All you are allowed to know is the jury is made up of 10 whites, two Hispanics and two black alternates. So many are male. So many are female.
The jurors were required to fill out a 116-question questionnaire under penalty of perjury. The judge released a copy of the blank questionnaire but refuses to release the filled-out forms of the seated jurors.
Among the questions asked of potential jurors:
-- 24. What civic, social, religious, charitable, volunteer, professional or business organizations do you belong to?
-- 26. Who is your favorite public person?
-- 30. Which newspapers and magazines, if any, do you subscribe to and/or read on a regular basis?
-- 54. What is your opinion of criminal defense attorneys?
-- 55. What is your opinion of prosecuting attorneys?
-- 88. Have you, your spouse or domestic partner, or any family members, friends or co-workers ever had your picture taken with O.J. Simpson?
-- 91. Were you a fan of the Buffalo Bills football team in the years when O.J. Simpson played for them?
-- 106. Will you follow the law, as given to you by the court, even though it may differ from your concept of what the law should be? (Jury nullification is a topic for another day.)
-- 107. Do you think the news media always report the truth? (I object!)
At the top the aforementioned questionnaire is this bit of logical whiplash:
"Your answers will become part of the Court's permanent record and therefore, a public document. After a jury has been selected, all copies of your response to this questionnaire will be returned to the Clerk of the Court and kept in confidence, under seal. Your answers will be used solely in the selection of a jury and for no other purpose."
First it is a public record and then it is not in the space of two sentences?
Of course, this has all the established legal precedent of declaring it's OK to lie as long as your fingers are crossed.
When the Review-Journal and The AP filed a motion seeking copies of the filled out questionnaires, Judge Glass responded that it would be "unconscionable to break these promises to the jurors and the alternates who are eventually seated in this case."
Attorney Don Campbell, who is appealing Glass' denial to the state Supreme Court, cites a court ruling addressing such a promise: "Finally, we reject respondents' argument that the prospective juror questionnaires should not be disclosed because they were completed pursuant to a promise of confidentiality. Constitutional rights are not superseded by the mere promise of a trial judge to act contrary to those rights."
The Sixth Amendment guarantees the right to a "public trial," not a trial by hooded jurors.
Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at firstname.lastname@example.org.