PHOENIX — Arizonans are not entitled to know the names of the jurors deciding criminal cases.
The U.S. Supreme Court has rejected a bid by the publisher of the Cochise County Record that there is a First Amendment right of the public to know not only who is sitting on the panel but even those being considered to serve. The justices provided no reason for their refusal to consider the case.
That decision leaves in place the 2022 decision by the Arizona Supreme Court rebuffing the claim by David Morgan that if judges want to shield juror names from the public they first have to make specific findings on a case-by-case basis. Instead, it leaves in place the presumption that juror names are not public, with the ability of judges in Arizona — again, on a case-by-case basis — to release the names.
At the heart of the issue is a 2007 law that says juror names “shall not be released unless specifically required by law or order ordered by the court.”
None of that was an issue until a dozen years later when judges in two criminal trials in Cochise County decided to use “innominate” juries, meaning one in which jurors are publicly identified only by number but whose names are provided to the parties.
In both cases, the public was permitted to attend jury selection and the trials. But the judges refused the request by Morgan and Terri Jo Neff, who writes for the Arizona Independent, to disclose the names publicly.
Justice Ann Scott Timmer, writing the 2022 Arizona Supreme Court ruling, said there are potential negative effects of jurors having their names available for publication. She rejected claims that denying that information interferes with the ability of the public to ensure that trials are being conducted fairly.
“Anyone can sit in the courtroom during a criminal trial and observe the juror screening process, including voir dire examinations,” she said, the part of the process where prospective jurors are questioned by attorneys about their backgrounds and potential biases. Timmer said they can observe when an attorney challenges a prospective juror “for cause,” meaning some specific bias or reason.
“Accessing jurors’ names would not significantly add to the public’s ability to assure itself that voir dire is fairly conducted or to check the courts in disregarding established standards for jury selection,” she said.
Gregg Leslie of the First Amendment Clinic at the Arizona State University College of Law, representing Morgan before the U.S. Supreme Court, told the justices the state’s high court got it wrong.
“The confusion among lower courts arises from a mistaken understanding by some courts, such as the Arizona Supreme Court, that the public’s presumptive right of access only protects the public’s right to attend criminal proceedings and does not extend to information typical to those proceedings,” Leslie wrote.
He told the justices, however, there are prior U.S. Supreme Court rulings that make it clear the right of the public to access criminal trials is not limited to simply sitting in the courtroom.
“A proper review of this court’s prior First Amendment right of access cases demonstrates that access to information is at the heart of the right,” Leslie said. “The ‘scrutiny’ that the Arizona Supreme Court recognized as part of the right cannot logically include complete secrecy of the identities of those involved in the process.”
Jeffrey Sparks, the deputy solicitor general for the state Attorney General’s Office, argued successfully there were good reasons for the U.S. Supreme Court to stay out of the fray and leave the lower court ruling intact.
“Regrettably, tribunals — judges and juries alike — are subject to attack and intimidation by one or the other side of our increasingly polarized and caustic political climate and society in general,” he wrote.
Sparks said judges know that when they seek the job.
“Jurors, however, are compelled upon pain of legal retribution to take on the role,” he said, something that is served by Arizona’s decision to protect jurors both during and after their service.
“This protection services the overarching goal of fairness in criminal proceedings by assuaging trepidatious jurors’ legitimate fears of the consequences of participation in the public arena.”
There was no immediate response from Morgan.