Im having trouble impaneling a jury. So said a New York State Supreme Court justice to his lunch companions: two other senior justices, a law secretary, and me. Its a gang killing, and the prospective jurors are understandably concerned. Why dont you give the jurors anonymity? I asked. I cant, the judge said. New York State doesnt allow it. Federal judges have that discretion; we dont. In fact, the New York State Criminal Procedure Law requires just the opposite: defendants have a right to know the identities of jurors. For judges hearing high-profile cases, this lack of juror anonymity can present serious problems.
The most obvious is outright jury tampering. Though that isnt common, more than a few instances have been uncovered. Jimmy Hoffa was convicted of jury tampering in 1964, and a juror in one of John Gottis trials in the late 1980s was convicted of accepting $60,000 to guarantee a hung jury and thus a mistrial. More recently, a Bronx murder trial of a Latin Kings gang member resulted in a mistrial. There was no proof of actual tampering, but jurors reported being spooked by gang members who attended the trial and followed them to a nearby food court. This potential for more subtle intimidation concerns judges even more.
And then theres the media. Most newspapers and television networks wont attempt to contact a juror during a trial. But after a verdict comes down, juror privacy is irrelevant for a determined reporter.
Federal judges have the discretion to grant juror anonymity. Before Syed Hashmiindicted for providing material support to al-Qaidachanged his plea to guilty last spring, federal judge Loretta Preska had granted the governments request for an anonymous jury. Similarly, the federal trial of now-imprisoned defense lawyer Lynn Stewart had an anonymous jury. And the case need not involve violence: former Illinois governor Rod Blagojevichs corruption trial, which ended with a conviction on one count and a mistrial on all others, also had an anonymous jury.
The last time the New York State Legislature acted on the issue was 1985and then it specifically excluded the possibility of juror anonymity, though it gave a very limited discretion to keep jurors addresses secret. In 1994, the legislature considered allowing for anonymous juries in some situations, but never voted on the proposal. Much of the debate back then focused on the distinction between jurors names and their addresses. Today, thanks to the Internet, little stands in the way of discovering a jurors address, employer, family information, and more.
No right in the U.S. Constitution guarantees defendants access to juror information. Federal case law and judicial practice make that clear. The confrontation clause of the Sixth Amendment does give defendants the right to know and cross-examine the witnesses against themnot the jurors hearing the case.
Some, like defense lawyer Oscar Michelen, argue that allowing juror anonymity is prejudicial: Telling a jury that their identities are being kept anonymous is tantamount to the judge saying to them, We know the defendant and his friends are dangerous bad guys. The presumption of innocence goes out the window.
But this worry seems overblown, at least based on my own experience. Having served on four juries in cases that went to a final verdictand sat at a judges elbow in dozens more during an internship in the New York Supreme CourtIve always marveled at how seriously jurors take their responsibility, which typically takes the form of listening to the evidence carefully, assessing it objectively, and maintaining the presumption of innocence. And it often takes place in the context of a significant burden on the jurors time, expense, and psyche.
In return for this commitment, its time for Albany to give New York citizens some chance of privacy protection in high-profile trials. As the Internet continues to erode most privacy protections, the best way to do that is to give judges the discretion to allow anonymous juriesa power that federal judges enjoy and use responsibly.
Steve Cohen, 59, is a second-year student at New York Law School.