By Howard Fischer
Twitter: @azcapmedia

PHOENIX — The public has no legal right to know the names of jurors who are hearing cases, the Arizona Court of Appeals has ruled.

And that secrecy persists even after the trial is over.

In a ruling that sets legal precedent, the three-judge panel rejected arguments by the publisher of an online legal affairs newsletter that any right of the public — and the media — to that information is more important than protecting the privacy of the people who serve. In fact, Judge Christopher Staring said having that information routinely made public actually could discourage people from agreeing to sit on a jury.

“Once a juror’s name is public, with the current availability of information through the internet and other sources, a vast array of information about them is accessible — sometimes in a matter of seconds,” Staring wrote for the three-judge panel.

“The courts should not be bound to create an incentive for others to seek out private information about jurors who have done their civic duty, thereby exposing them to risk of public embarrassment, harassment, or danger,” he continued. “Creating a presumption of disclosure for juror names would do just that.”

But David Morgan, publisher of the Cochise County Record, said that is based on what he believes is an incorrect assumption that jurors will be harassed if their names are known.

“Of course, for 100 years in Arizona trial jurors’ names have been public,” he said. “And there’s been no showing that, even with the new-ish, widespread use of raucous and essentially anonymous social media, juror harassment has become a problem.”

There is a 2007 state law that specifically shields the names of jurors “unless specifically required by law or ordered by the court.” Morgan, however, said that refers to court personnel and not to what occurs in the courtroom.

And he said provisions in the Rules of Criminal Procedure that govern the conduct of courts and trials in Arizona are not as clear as Staring says. Morgan said they entitle a judge in a specific case to seal the information. But he said that first requires a specific reason.

“The rule doesn’t say you must have anonymous jurors,” he said. “It says you can.”

Morgan also said the policy — which appears not to be universally applied by all judges in all cases in Arizona — is based only on conjecture. And he said there is a lack of evidence to support it.

“It doesn’t say, ‘In Pinal County, last year, a juror, people threw rotten eggs at his home’ or ‘screamed names at him’ or ‘called her a slut on Facebook,’” Morgan said of the policy. “There’s no, zero, specific evidence this is a problem.”

Beyond that, Morgan said none of the objections and concerns trump the First Amendment right of the public to the information. And he vowed to take the issue to the Arizona Supreme Court and, if necessary, to the U.S. Supreme Court, which he said has never ruled on the issue.

The ruling stems from two criminal cases in Cochise County where judges denied access to the names of the jurors sitting on the cases.

Staring acknowledged there are court rulings that deal with the right of the public to information about what is going on during a trial.

“These cases, however, focused on public access to courtroom proceedings, not the disclosure of certain confidential information held by the court itself,” he wrote. And he said that juror names and other biographical information is not evidence that would be presented or part of the public proceeding.

“Rather, it is information held by the government, which ordinarily possesses a broad spectrum of confidential information not made available to those observing court proceedings,” Staring said. That, he said, puts it outside the scope of the First Amendment right of access.

Staring did not dispute it has been the practice in the past in Cochise County to make the names available. But he said what occurred there is legally irrelevant, saying the proper test is what has been going on in similar hearings throughout the entire country.

The judge said he and his colleagues wouldn’t be swayed even if Morgan and Terri Jo Neff, a freelancer who writes for the Record, were able to prove there was a national practice of disclosure of juror names.

“We conclude they have not shown that logic requires such disclosure,” Staring wrote.

The judges were similarly unswayed by arguments that making the information public — and allowing reporters and others to poke into their backgrounds — would actually be beneficial to the idea of fair trials, including ensuring prospective jurors answer questions honestly during the screening process.

Staring said the jury commissioner may investigate the accuracy of answers on the juror questionnaire and even get law enforcement to investigate. And then there’s the voir dire process where the attorneys and the judge can question them further.

Staring brushed aside arguments there needs to be additional public oversight of the system, with reporters looking at things like racial bias and whether justice was served, again citing the screening process.

“And, even the defendant in a criminal proceeding is entitled only to a fair trial, not a perfect one,” the judge wrote. “Thus, even if a reporter or other member of the public were able to procure additional information about a juror, we cannot say that such information would be likely to play a significant positive role int he proceeding.”