Nevada Supreme Court justices expressed doubts Tuesday about the way in which the judge in the Las Vegas robbery-kidnapping trial of former football star O.J. Simpson first withheld jury questionnaires from the media and then finally released censored versions.
The justices commented during high court arguments on a bid by The Associated Press and the Las Vegas Review-Journal for a ruling that Clark County District Judge Jackie Glass erred in delaying release of the documents and then redacting them, and in saying the matter was moot once the trial ended.
Although Anglo-Saxon tradition requires a jury "on the country," or chosen at random from the citizenry, the courts now micromanage the screening of potential jurors to such an extent that the Simpson panelists were required to fill out a 116-question form under penalty of perjury. The judge released a copy of the blank questionnaire but initially refused to release the filled-out forms of the seated jurors, then released censored versions after the trial ended.
Among the questions asked of potential jurors:
— 24. What civic, social, religious, charitable, volunteer, professional or business organizations do you belong to?
— 30. Which newspapers and magazines, if any, do you subscribe to and/or read on a regular basis?
— 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?
At the top this particular questionnaire, Judge Glass placed this bit of Lewis Carroll nonsense:
"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."
A public record that the public will never be allowed to see?
Chief Justice Jim Hardesty asked how a lawyer’s question in open court about a juror’s employer would be any different than such an inquiry on a juror questionnaire — which the media lawyers said are public documents under numerous state and federal court rulings.
Jill Davis, the senior deputy attorney general representing Judge Glass, said the media wanted information about jurors that went beyond their names and which could have led to juror intimidation.
The obvious way to avoid having any such information become public would be for the courts to ask the jurors nothing but their names, as is still largely the practice in Britain.
Las Vegas attorney Don Campbell, representing The AP and Stephens Media LLC, owner of the Review-Journal, asked the high court to spell out the rights of the media and public because of the inevitability of such closure orders in future cases.
While judges normally are permitted to withhold jurors’ personal information, such as Social Security and driver’s license numbers, Mr. Campbell and co-counsel Colby Williams said in briefs submitted in advance of Tuesday’s hearing that Judge Glass censored without explanation information such as where jurors were born and raised, their parents’ occupations, whether they had children and whether they owned a home.
The attorneys argued the U.S. Supreme Court has ruled that jury selection must be open, and that the questionnaires are extensions of in-court jury selection.
The risks of secret jury-stacking should be obvious after a moment’s contemplation. What if the court had decided to choose only jurors who admitted being huge fans of Mr. Simpson — or only jurors who said they believed he murdered his wife 13 years ago and should be punished on any pretext? What if the documentation that proved only such jurors had been chosen was then carefully hidden away?
There should be a lot less screening of potential jurors. Merely asking if they know the principals or have formed an opinion as to guilt or innocence should suffice. But if the screening is going to continue — whether in open court or via written questionnaires — that process must be public.