On This One, Jurors’ Rights Override Those of the Press

When the issue of jurors’ rights come up, my first instinct is to sympathize with the jurors even if it goes against the interests of the media.

That’s what happened in the O.J. Simpson murder trial Thursday when Superior Court Judge Lance A. Ito and the lawyers discussed allegations of unspecified juror misconduct.

The discussions were private despite the objections of Kelli Sager, attorney for The Times and other media outlets. Sager asked that transcripts be released of a discussion of alleged jury misconduct that took place in Ito’s chambers Wednesday afternoon. She also asked that a hearing Thursday be held in open court--with the media present--because of the importance of the issue being examined.

Judge Ito disagreed. He said he was more concerned about the jurors’ welfare, fearing that they would be subjected to “a public crucifixion.”

Ito said he was balancing “the jurors’ right to privacy” with the “court’s need to investigate misconduct.” Obviously, he felt he could conduct a more effective investigation behind closed doors. So he held the Thursday afternoon session in his chambers.

The jury misconduct allegations have raised a difficult and complex question: What is a juror’s right to privacy?

This is not the first time the issue has come up. Concern was expressed in an extreme form recently by two Los Angeles County Municipal Court judges who ordered that jurors remain anonymous in minor cases, a move overturned by an appellate court.

But when the issue becomes part of the Simpson case, where jurors are anonymous, it becomes a big story and highlights one of the most interesting new currents in the justice system--the jurors’ rights movement. The advocates demand better pay and working conditions for jurors and more respect from judges and attorneys. Recently, jury reform in the huge Los Angeles County court system was advocated by the county commission on efficiency and economy.

*

Details of the current misconduct furor aren’t known, except that one juror wrote a letter to the judge about another juror.

Defense attorney Robert L. Shapiro apparently doesn’t think it’s serious. He objected, he told Judge Ito, “to the term juror misconduct. “ He said he’s seen no evidence that “there has been tampering or anything close to misconduct.”

But Deputy Dist. Atty. Marcia Clark said the allegations, if true, mean “we have a problem of jury misconduct.” And the term misconduct was used by court officials Wednesday when they announced the hearing.

If Shapiro is correct, and this is a furor over nothing, it’s easy to see the danger of a public hearing.

Suppose you’re a juror. One of your colleagues takes a dislike to you and, in a letter to the judge, accuses you of gossiping about the case, or taking a forbidden drive to the Simpson mansion.

The judge must look into it. It’s usually done quietly, outside public view. That permits a quiet dismissal of a juror, without public disgrace, if the allegations are true.

On the other hand, a public hearing would, as Ito said, expose the suspected juror to heavy cross-examination by both sides, plus public dismissal if the charges were found true. Granted, the jurors in this case are anonymous and they can’t be photographed. But their occupations and neighborhoods are known, and certainly their friends, neighbors and co-workers would be able to figure out what happened.

A convicted shoplifter or burglar would get much less attention than a publicly dismissed Simpson juror. That’s what Judge Ito meant when he mentioned a “public crucifixion.”

After the hearing, I called media attorney Sager for a longer discussion of the press’ side.

Sager said she understood Ito’s concern for the jurors’ welfare. But she said these matters are so serious that they should be aired in public.

If there has been misconduct, Sager said, then the public should know how the process has been tainted. And if nothing happened, “there will be a suspicion that the jurors have been tainted until there is an open investigation.”

As Ito noted Thursday morning, there are few judicial decisions on this important issue and the existing cases are not, in his mind, conclusive.

But Sager cited one case that made an important point. An appellate court decided in favor of open hearings on misconduct on the grounds that it’s easier for people to lie in private. A public lie, the court said, may be detected by a witness.

*

Some of the reporters didn’t like Ito coming down on the side of privacy. They felt it is an example of his hostility toward the press.

But as I listened to the proceedings, and watched the jurors, I thought the judge was ahead of the curve on this one, reflecting a growing feeling in the courts that the jurors have been the forgotten element in the system.

We reporters are entitled to get the story. But jurors have rights, too, including the right to be spared humiliation after they signed on for a difficult and unpleasant civic duty.