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On Jan. 18, WBUR won a victory in a campaign for transparency and accountability in federal court. The 1st Circuit U.S. Court of Appeals ruled jurors’ names and addresses must be disclosed in a timely manner after a verdict is reached in federal trials.
This significant gain for journalism followed WBUR’s challenge to several judges who had denied our requests on the grounds they would result in unacceptable invasion of jurors’ privacy. WBUR's David Boeri led our efforts.
First time I began tracking down jurors was in a federal racketeering trial of violent neo-Nazis in 1985. I’ve been doing it ever since. Over the years, some of my methods changed. At the start, dimes were essential, then useless. But the goal never changed. Reporters like me want to find out why jurors decide as they do and what evidence and testimony determines their verdict.
Not often — but much more often than now — jurors would agree to talk with us right after the verdicts. A judge would occasionally suggest to jurors that one of them, logically the foreperson, might want to speak to the assembled reporters — the “horde” was an apt description at times. Answering their questions in a orderly setting, the judge counseled, might free the whole jury from further intrusions. But most of the time, court officers kept the jurors from reporters as they dispersed, often marshaled out the back door. So we had to go find them ourselves. That meant we needed the jury list, and for that, we needed the judge’s approval.
In federal district court here in Boston, which belongs to the 1st Circuit, ruling precedent since 1990 is that juror names and addresses must be made public after the jury has rendered a verdict.
The principle is straightforward. Court proceedings are presumed to be public, and knowing who the jurors are “allows the public to verify the impartiality of key participants in the administration of justice, and thereby ensures fairness, the appearance of fairness and public confidence in that system.”
The precedent allows one exception: If a judge finds a specific threat to “the interests of justice,” such as “a credible threat of jury tampering” or “a risk of personal harm to individual jurors,” he or she can order their names sealed. It's the only allowable justification for keeping the jurors anonymous.
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Having that list in hand at the end of major trials, reporters from newsrooms around the city once competed to reach jurors. I would race to the home addresses of as many as 12 jurors all over eastern Massachusetts in hope of finding one juror, maybe two, whom I could ask — plead with — to talk about the trial and the verdict. Even after the arrival of sophisticated databases and internet search engines provided possible phone numbers and email addresses or social media links for the jurors, I preferred to make my appeals in-person and on-the-door-step.
As unwelcome as my presence may have been to many [jurors], I have justified my temporary intrusion into their lives by the need recognized by the court itself to ensure accountability and public confidence in the system.
For all the rejections, mostly polite — though some involved dogs, slamming doors, and being compared, unfavorably, to piranha and jackals — I often succeeded.
Jurors provided great insights, and I’ve been deeply impressed by the sense of duty and seriousness of purpose they bring to their task. As unwelcome as my presence may have been to many, I have justified my temporary intrusion into their lives by the need recognized by the court itself to ensure accountability and public confidence in the system.
In recent years, however, a number of federal judges in Boston have been less that forthcoming with jury lists. The controlling precedent and practices gave way to evasions. The expectation that jury lists would be released promptly gave way to waits of weeks, even months, without explanation or findings of specific threats that justified them.
The longer the wait, the more likely the news story will fade from public attention to issues and fresh perspective jurors can bring. But with fewer reporters covering the courts, only a handful of news organizations challenged the rulings of judges who seemed to be breaking with the controlling precedent.
I’m proud to say that WBUR was one of that handful. With the backing of Boston University, our license-holder, WBUR stepped into the breach and provided the legal counsel that allowed us to file motion after motion, often alone, to win the timely release of jury lists I sought in all major trials in the last few years.
The case in which the Courts of Appeals has now ruled in our favor involves the New England Compounding Center, implicated in a national meningitis outbreak that followed the distribution of contaminated medications and led to 76 deaths. Defendants were charged with mail fraud and racketeering that included 25 predicate acts of second-degree murder.
On October 18, 2017, one week before a federal jury convicted pharmacist Glenn Chin of mail fraud and racketeering (but not the predicate acts of second-degree murder), WBUR filed a motion to obtain the jury list “as soon as possible after the verdict is announced.”
Two days after the jury returned with its verdict, U.S. District Judge Richard Stearns denied our motion. He ruled he would only give us the jurors’s names and their city or towns of residence, and only after sentencing. We had been down this road with Judge Stearns once before. Back in June of 2017, Stearns withheld the street addresses of jurors who had convicted Barry Cadden, owner of the New England Compounding Center, in a separate but related trial.
Without street addresses, and under deadline to find jurors in that case, it became evident how difficult identifying and finding all the jurors would be even with the help of the internet. Despite the work of a team of WBUR staffers and interns scouring the internet and social media for matches, a depressing number of jurors eluded us. Our spreadsheet revealed all kinds of phone calls to people who shared the jurors' surnames but weren’t who we were looking for. We found people online who matched jurors' first and last names, but were complete strangers to the case. Even if we thought we had the phone number of a likely juror but no one answered the phone, we couldn’t be sure we had the right person. Same with email if no one replied.
Imagine if you are looking for a juror named Michael Murphy of Boston, no street address provided. As one of the legal briefs in our case pointed out, there are 729 entries for Michael Murphy in an online database. The ability to identify all jurors clearly requires their full address. Without it, we couldn’t.
The reason Judge Stearns gave for denying us the list in 2017 was expressed more dramatically within a few days of Stearns' denial by another judge in the same courthouse. Judge William Young was presiding over the terrorist trial of an Everett man, David Wright, convicted of plotting to kill Americans on behalf of the Islamic State. When we filed a motion to obtain that jury list, Young denied our motion with the pyrotechnic pen for which he’s known.
Imagine if you are looking for a juror named Michael Murphy of Boston, no street address provided. ... there are 729 entries for Michael Murphy in an online database. The ability to identify all jurors clearly requires their full address.
“Routed and in retreat, their territorial aspirations today but a bitter memory among blackened ruins, ISIS nonetheless remains a viciously dangerous yet shifting and shadowy group of depraved international terrorists,” Young began.
Building steam, Judge Young vowed: “This Court will provide no aid and comfort to ISIS propaganda. Therefore, even though there is no credible threat against anyone involved in this prosecution (I’ve checked), I will not follow my usual practice and reveal the names and home address of the jurors now that the case is over.”
Young could not have been clearer in rejecting the ruling precedent that required the specific finding of a credible threat as a basis for withholding the list. Echoing Young, Judge Stearns’ ruling raised the fear jurors’ identities would be “plastered permanently” on the internet. Withholding the jury list in Chin “is a necessary pre-caution,” he wrote, “in an age in which traditional boundaries of personal privacy are under assault.”
At first Young, and then Stearns, offered a compromise that was even worse. Both judges ruled in their separate opinions that they would provide the names and hometowns of the jurors if we and other news organizations submitted protective orders on how we would make sure the jurors’ personal identifiers would not be disseminated on the web once we got them.
The question of how in the world we would do that was actually overshadowed by the concern raised by WBUR attorney Jeffrey Pyle, of the law firm Prince, Lobel, Tye. He responded that Young’s order clearly amounted to a case of prior restraint on speech and publication, which the High Court regards as the “least tolerable infringement on First Amendment rights.”
Judge Young backed off and released the list to us without the addresses. Stearns backed off, as well. But 90 days passed between the verdict and the sentencing for Glenn Chin before WBUR obtained the list of his jurors. It was an extraordinary delay, contrary to the long-standing precedent and rules that lists be provided after the verdict. Once again the list did not contain street addresses.
In filing a notice of appeal of Stearns' ruling, WBUR took a very big step. We went before a three-member panel of the Court of Appeals. Pyle, our attorney, argued that for more than 30 years the 1st Circuit has been following the same precedent (a 1990 Court of Appeals ruling referred to as “In Re Globe” or “In Re Globe Newspaper Company”).
Pyle pointed out that in the case of Glenn Chin, Judge Stearns had made no particularized findings that there was any danger posed to the judicial system to justify withholding the jury list. The Appeals Court judges recognized that Stearns had raised a significant issue of whether jurors need to be more shielded from invasion of privacy more intrusive “in an era in which social media was unknown.” Stearns had characterized the 1st Circuit's rules as antiquated in the face of “a less innocent and more threatening age.”
But Pyle and The New England First Amendment Coalition, which entered the case as amicus (“a friend of the court”) in support of WBUR, reported they could find no instances of jurors ever being adversely affected by having their names and addresses released by the court after trials had ended.
In what might have been the Court of Appeals’ strongest rebuke to Judge Stearns' rulings against WBUR, it stated that though the ruling precedent in the 1st Circuit was decided “before the first tweet was tweeted” these technological changes “have by no means diminished the need for accountability and transparency in our system of justice.”
In other words, vague or generic threats are no justification for withholding jury lists and making jurors anonymous. After the Appeals Court’s ruling, Pyle applauded the court for holding that “generalized fear of the internet is no reason to sacrifice transparency in the criminal justice system.”
... Vague or generic threats are no justification for withholding jury lists and making jurors anonymous.
Most importantly, the Court of Appeals ruled that nothing had changed in the intervening years, so the controlling precedent from 1990 and federal jury rules are still controlling in the 1st Circuit. Thus, WBUR is entitled to the jury lists with addresses that the court agreed are essential to identifying jurors.
Leaving little ambiguity, the court also reproached Judge Stearns for making us wait 90 days and until after sentencing before releasing the Chin jury list.
Stearns is now ordered to unseal the list of juror names and addresses as WBUR requested back in 2017 unless he makes those “particularized findings,” which he did not make before, of a “credible” threat to the jury system.
I would like to think the Appeals Court decision will be welcomed beyond the ranks of reporters. More likely it will be unpopular among prospective jurors, especially those who don’t know that releasing names and addresses was supposed to be the norm for the last 30 years.
“We recognize that jurors are pressed into service, and that some of them may not want to take media calls,” says Pyle. “But the idea of having anonymous persons decide criminal cases is contrary to the principles of transparency and accountability at the heart of our system of government.”
WBUR has not yet received the jury list from Judge Stearns. So the matter is not yet settled.
But as a reporter who has called for and received full legal support from WBUR and Boston University for numerous motions and appeals, I look forward to celebrating this likely victory for open justice, transparency and accountability to the public.
Update on Feb. 14, 2019: An Feb. 13, Judge Stearns announced that he was complying with the order of the Court of Appeals. He turned over the list of jurors and their addresses to WBUR the next day.
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