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First Circuit: Juror Names and Addresses Remain Public in the Age of Social Media

By Jeffrey J. Pyle and Sigmund D. Schutz

Nearly 30 years ago, the Court of Appeals for the First Circuit held that judges in the District of Massachusetts must release the names and home addresses of jurors after trial, absent exceptional circumstances justifying impoundment. In re Globe Newspaper Co., 920 F.2d 88 (1st Cir. 1990). The opinion, by then-Circuit Judge Stephen Breyer, was ostensibly based on the text of the Jury Plan for the District of Massachusetts, but it also drew heavily from the Supreme Court's First Amendment access cases. Applying the "logic" test of Press-Enterprise II, 478 U.S. 1, 9 (1986), the court observed that post-trial interviews of jurors can reveal bias, root out misconduct, expose misconceptions, and otherwise improve the quality of the justice system. "In a democracy," the court concluded, "criminal trials should not, as a rule, be decided by anonymous persons."

Last month, in U.S. v. Chin, No. 17-2048 (Jan. 18, 2019), the First Circuit reaffirmed the rule of access to juror identities, notwithstanding the worries of some district judges about potential threats to juror privacy in the era of social media. The court also held that any delay in releasing the jurors' identities must be supported by findings of a threat to the judicial system, and that courts must release jurors' home addresses, in addition to names and hometowns, so that the press can identify and interview them.

A Questionable Verdict

In 2016, the Government charged the New England Compounding Center ("NECC"), a compounding pharmacy, and the individuals who ran it with serious criminal charges for distributing contaminated medications that caused a nationwide outbreak of fungal meningitis, killing scores of people. Barry Cadden was NECC's owner. At Cadden's trial, the jury heard that he had deliberately avoided safety measures to prevent contamination. It convicted him of numerous offenses, including RICO violations, while marking "not guilty" next to charges of second degree murder.

After the trial, court observers noticed that the jury had written numbers adding up to 12 on the verdict form next to the "not guilty" notations—apparent evidence of non-unanimous votes. Trial judge Richard Stearns had not asked the jurors what the numbers meant before discharging them.

David Boeri, longtime courtroom journalist for public radio station WBUR, wanted to interview the Cadden jurors to see if they understood that their verdicts had to be unanimous. However, despite In re Globe, Judge Stearns did not release the jury list after trial, so WBUR filed a motion for it. In response, the judge ruled that he would delay release of the jury list until after sentencing, and even then, would release only the jurors' hometowns, not their home addresses.

WBUR moved to reconsider these limitations. The judge summarily denied the motion, asserting that the requirement of In re Globe regarding home addresses was mere dicta, and even if it weren't, "the opinion was written in a more innocent age. In the turbulent times in which we now live, I would no more consider ordering the public disclosure of a juror's home address than I would my own."

After Cadden's sentencing, the judge released the jurors' names and hometowns. However, despite considerable sleuthing, WBUR was unable to contact all the jurors. Thankfully, the jury foreman decided to attend Cadden's sentencing, where Boeri interviewed him. The foreman confirmed that the jurors erroneously believed that if they weren't unanimous on a charge, they had to find Cadden "not guilty."

An Abortive Prior Restraint

Soon thereafter, WBUR filed a motion in another criminal case in the District of Massachusetts, the terrorism trial of U.S. v. Wright. In that case, Judge William Young agreed to release the juror identities, but only if the media submitted to a "protective order" to "secure the jurors' personal identifiers from unnecessary dissemination on the internet." WBUR responded by reminding Judge Young of the law on prior restraints, and arguing that it would be unconstitutional to require the media to agree to one as a condition of receiving court records.

Meanwhile, WBUR moved for the jury list in the trial of Barry Cadden's co-defendant, NECC chief pharmacist Glenn Chin, shortly before the jury went out to deliberate. Judge Stearns denied the motion without prejudice, again ruling that he would delay release until after sentencing, and would not release street addresses. However, inspired by Judge Young's order in Wright, Judge Stearns also held out the possibility that he would release juror information earlier in exchange for a protective order.

WBUR filed a notice of appeal. After the notice of appeal, Judge Stearns withdrew the prior restraint offer, (as Judge Young had by then done in Wright), but otherwise stuck to his guns, supplementing his order with a 20-page rumination on the history and importance of the jury trial from ancient England to the present.

Friends of the Court

None of the parties in Chin took a position on the release of the jury list, but the First Circuit wasn't willing to leave Judge Stearns without a defense. So it named a "Court-appointed amicus," Gregory Dubinsky of Howell, Schuster & Goldberg, to argue Judge Stearns' side. In what the First Circuit characterized as "ably performed" argument and briefing, Dubinsky echoed the judge's fears that the world has changed since 1990, and asserted that delaying access to juror lists, and withholding street addresses, could be justified by the prospect of harassment on the internet. He also argued that relevant portions of Globe Newspaper were mere dicta.

Wrong, said the media. Led by the New England First Amendment Coalition, a group of media supporters (Gatehouse Media, the Keene Sentinel, Massachusetts Newspaper Publishers Association, MaineToday Media, New England Newspaper & Press Association, New England Society of News Editors, the Reporters Committee for Freedom of the Press, and the Union Leader Corporation) filed what the First Circuit deemed a "helpful amicus brief." The Coalition argued that access to juror information services as a check on the system, allows important insight into the judicial process, and that there is no evidence that jurors have come to harm because their identities are public. It also pointed out that jurors cannot properly be identified with just names and hometowns: just try finding "Michael Murphy" of Boston among the 729 listings of that name in the online white pages.

First Circuit Resolves Jurisdictional Obstacles in Favor of WBUR

Before reaching the merits, the First Circuit navigated three jurisdictional issues—all but one of which the court raised sua sponte. First, the Court questioned whether a non-party has a right to intervene in a criminal case and suggested that the appropriate avenue would have been to seek a writ of mandamus, a subject on which the circuits are split. But because the District Court had allowed intervention and that aspect of its decision had gone unchallenged on appeal, the court allowed WBUR to proceed as an intervenor.

Second, the First Circuit raised and then "iron[ed] out" its own concern over the "timing of the appeal relative to the issuance of the District Court's amended order in this case." The parties had not made anything of the fact that the District Court issued its amended order the day after WBUR filed its notice of appeal. The parties had treated the amended order as the primary ruling by the District Court on appeal. The First Circuit suggested that a plausible argument could have been made to disregard that order because the filing of the appeal had divested the District Court of jurisdiction. On the other hand, the District Court's amended order arguably did not "alter the substance of the decision" to release juror names and hometowns after sentencing, according to the First Circuit. Nor did the amended order affect the First Circuit's "analysis of the merits[,]" which may have been a disappointment to the district judge given the obvious effort he had put into his historical account.

The final and "main jurisdictional obstacle," per the First Circuit, was Court-appointed amicus' argument that the appeal was moot "because the District Court released the names and hometowns of the Chin jurors on January 31, 2018," nearly 12 months before the First Circuit released its decision on appeal. The First Circuit found that the controversy over access to juror addresses was not moot since that information remained sealed and, in addition, WBUR had been unable to contact all of the jurors with names and hometowns only.

The other "not quite so easily resolved question" was whether WBUR's appeal from the District Court's delay of access for three months, until after sentencing. The First Circuit found that WBUR's appeal qualified for the exception to the mootness doctrine that exists for a controversy that is "capable of repetition, yet evading review." On that basis the court reached the merits.

Access Re-Affirmed

The First Circuit framed the merits question as a two part inquiry, starting with whether In re Globe's requirement of home addresses is mere dicta (as Court-appointed amicus argued) or, instead, "controlling precedent" (as WBUR argued).  Even if the precedent were controlling, then the First Circuit concluded that it would still consider "Court-appointed amicus's alternative argument that we should revisit that holding in light of changes in technology over the past thirty years since In re Globe was decided."

On both issues, the First Circuit sided with WBUR. It concluded that In re Globe is controlling and that a district court must disclose juror names and home addresses post-trial absent "particularized findings" of "exceptional circumstances" such as "a credible threat of jury tampering, a risk of personal harm to individual jurors, and other evils affecting the administration of justice." The District Court in Chin had made no such findings.

The court also held that In re Globe also "requires that any delay in post-verdict disclosure be justified by the requisite 'particularized findings.'" The District Court's three-month delay (between the verdict and sentencing) far exceeded any "brief time period that could constitute an acceptable delay" and therefore deviated from In re Globe.

In response to the arguments that changes in technology justify a departure from access to juror identities, the First Circuit acknowledged that In re Globe "was decided decades ago and thus well before the first tweet was tweeted." The Court also accepted that "there is now a greater potential for the public release of a juror's name, and, especially, a juror's address, to be more intrusive and concerning than would have been the case in an era in which social media was unknown." But the Court concluded, "these technological changes have by no means diminished the need for accountability and transparency in our system of justice that In re Globe treats as relevant in construing the critical provision of the Jury Plan." The First Circuit described the competing interests this way:

The obligation of jury service is one of the most important that our government imposes on its citizens. It is, therefore, important to ensure that the fulfillment of this obligation is not made so burdensome that it becomes more than a citizen should have to bear. It is important to ensure as well, though, that our system of justice remains accountable to the broader public that it serves.

In a footnote, the First Circuit also responded to a challenge posed by the District Court in its amended order, "The court would also suggest that any judge evaluating this same issue consider whether he or [she] would disclose his or her home address when issuing orders or rulings." The First Circuit agreed with the media amicus's argument that judges are unlike jurors, who "are not otherwise sufficiently identifiable to the press and public" without disclosure of addresses. By contrast, the identity and background of judges is well known. The First Circuit added that "[i]t also bears mentioning that it would be impossible for judges to keep their addresses confidential during trials in which they presided if they were required to disclose them post-verdict, given that a judge is, by design, the quintessential repeat player. No equivalent conundrum presents itself with respect to jurors."

The First Circuit concluded that generalized "concerns for juror privacy" could not provide a justification withholding or delaying juror identities. However, the court remanded the case to the District Court's to allow it to consider "whether this particular case presents the kind of 'exceptional circumstances' that In re Globe contemplates." Under the re-affirmed and reinforced standards set by the First Circuit in Chin, no such findings are likely on remand.

Jeffrey J. Pyle is a partner in the Media and First Amendment Law practice group at Prince Lobel Tye LLP in Boston, Massachusetts. He represented WBUR in U.S. v. Chin.

Sigmund D. Schutz is a partner at Preti, Flaherty, Beliveau & Pachios, LLP in Portland, Maine. Along with Nashwa Gewaily, he represented the media coalition that appeared as amici curiae in U.S. v. Chin.

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