A symposium on how law is supposed to work

You can't just make it up as you go along. Otherwise, what is the point of a couple hundred years of jurisprudence?

The U.S. Supreme Court hasn't ruled time and again that the courts must be open to the public merely on a whim. They meant it. Each and every time.

While listening to attorney Don Campbell argue before the state Supreme Court our case about why the press should have access to juror questionnaires in the O.J. Simpson robbery trial, I thought he had been joined by five co-counsels ... but they were all sitting on the bench.

The Las Vegas Review-Journal and The Associated Press had appealed to the state's highest court because District Judge Jackie Glass had at first rejected our requests for copies of the questionnaire filled out by potential jurors in the Simpson case this past September. After the jury was seated, she provided the questionnaire itself but did not provide the completed questionnaires of jurors until after the trial, and those were heavily and arbitrarily redacted.

Simpson and a co-defendant were convicted of robbery and kidnapping for grabbing sports memorabilia at Palace Station in 2007. Simpson is serving at least nine years.

At one point, Judge Glass had even issued an order prohibiting the press from disclosing the names of any jurors, another thing that perplexed the justices. When pressed as to why she would not release the questionnaires, she said she had promised the jurors she would not, while at the same time conceding they were part of the public court record. It was a promise with no basis in law or common sense.

In court this past Tuesday, Deputy Attorney General Jill Davis, arguing on behalf of Judge Glass, basically said the case was of such intense public interest that the judge did not wish to risk tainting the jury pool.

Campbell conceded the judge, under limited circumstances, could deny access to certain information, but she is required by law to explain her rationale.

"The press' traditional role," Campbell said, "as recognized by the courts repeatedly, has been to ensure the truth-finding process, not only from the witnesses at trial but also from jurors that are far less likely to embellish or to engage in any sort of prevarication knowing that the press is there."

Justices repeatedly interrupted Campbell, but virtually every time it was to clarify or even embellish his arguments.

One justice asked if depriving access to the questionnaire was no different than refusing to allow the press to observe the questioning of potential jurors in open court?

"That is precisely our point, your honor," Campbell replied. "And that is precisely the holding in every single case that we have cited."

Davis argued that there needs to be a balancing test applied when weighing the rights of a free press under the First Amendment and the right of a defendant to a fair trial under the Sixth Amendment.

To which Chief Justice Jim Hardesty asked, "What balancing test did the judge engage in in this case?"

Davis said Glass applied a balancing test but failed to articulate her reasons.

Another justice pointed out that "naked assertions without specific findings of fact are not sufficient. She has to do more and she didn't do it."

In her best Al Gore impression, Davis argued there was no "controlling law" in Nevada specifically on the release of juror questionnaires. Somehow, I suspect that is about to change.

During a rapid-fire Q&A with the justices, Davis was unable to provide a convincing argument that written questions were somehow different from those posed orally in open court.

"The goal posts were moved on us," Campbell told the court, explaining that at first the reason for secrecy was that promise to the jurors, then there was some vague reference to the possibility of betting on the trial's outcome. It turned out not to be true, but even then there was no explanation as to how betting might taint the jury pool.

Campbell told the court, "You must have evidentiary findings in the record supported by facts, not feelings, beliefs, superstitions, hunches or gut feelings. You have to demonstrate that they are compelling, not just that they are important, but that they are compelling and satisfy a compelling state interest and are the least restrictive means. None of that occurred in this case."

It was a symposium on how the law is supposed to be applied, compared to what happened in Glass' courtroom, where it was made up on a whim.

Thomas Mitchell is editor of the Review-Journal and writes on the role of the press. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com. Read his blog at lvrj.com/blogs/Mitchell.