ACLU Asks Ito to Release Juror Hearing Transcripts : Trial: The public has a right to know reasons for panelists’ dismissal, group’s lawyers say.

Pressing for greater openness in the O.J. Simpson murder trial, the American Civil Liberties Union of Southern California has formally asked Superior Court Judge Lance A. Ito to release sealed transcripts of all hearings held in his chambers about alleged juror misconduct.

The ACLU made the request as Ito prepared to question dismissed juror Jeanette Harris today about such allegations.

“Failure to release these transcripts only results in the proliferation of rumors, speculation and innuendo concerning the ‘true’ reasons for the court’s removal of jurors,” particularly in the wake of public statements by Harris last week, wrote Los Angeles attorney Douglas E. Mirell on behalf of four ACLU lawyers.

So far, Ito has not stated publicly why he has dismissed jurors, saying in one instance that there was “good cause,” in another instance “abundant good cause,” and offering no explanation in regard to Harris.

“The problems caused by the court’s failure to explain its excusal rationale are clear, and have only become more pressing with the passage of time and the court’s ongoing juror excusals,” the letter said.

The letter states that the release of transcripts was necessary “in order to ensure public confidence in both the integrity of (Ito’s) dismissal decisions and in the jury’s ultimate verdict.’

The ACLU letter emphasizes that there is “no legal basis for withholding such transcripts from the press and the public. Transcripts of court proceedings are clearly public records.”

This week’s action is the ACLU’s latest push for fuller disclosure of the large number of closed-door proceedings in the high-profile trial.

Deputy Dist. Atty. Christopher Darden said the decision was up to Ito, “but I think we have to be careful to protect the confidentiality of the jurors.”

Lawyers for Simpson made no immediate response, nor did Harris’ attorney, Milton C. Grimes.

However, the defense filed a motion late Monday that appears to support the ACLU position, at least in part. The defense motion asks for a hearing “to determine whether the investigation and selective disqualification of jurors and alternates have been engineered by the prosecution or other government actors in order to obtain an unfair tactical advantage.”

The defense motion specifically asks for a hearing to determine whether “good cause” existed to discharge Harris. In interviews last week, Harris said that Ito had told her she was ousted because she had failed to reveal, in response to a jury questionnaire, that she had been the subject of domestic violence earlier in life.

Mirell’s letter acknowledges both that the jurors have some privacy concerns and that Ito has stated publicly that he promised the dismissed jurors that transcripts of their hearings would not be made public. “As a matter of fairness, we obviously recognize the difficulty in now reneging on that pledge.”

On the other hand, Mirell notes that three of the six dismissed jurors (Michael Knox, Tracy Kennedy and Harris) already have spoken publicly to the media, as did a fourth (Catherine Murdoch) who is not mentioned in the letter.

“To the extent the court’s ‘sealing’ promises were explicitly or implicitly premised upon the dismissed jurors’ maintenance” of their anonymity, their voluntary decision to come forward to discuss their experiences undermines the court’s rationale and those transcripts should be released immediately, according to the letter.

Mirell also noted that during the midst of deliberations in the racially charged Reginald O. Denny beating trial, Superior Court Judge John W. Ouderkirk released transcripts of closed hearings in which several jurors complained about a panelist with a “twilight zone” mentality who ultimately was dismissed for “failing to deliberate.”

Several legal experts, including some defense lawyers and prosecutors, applauded the ACLU move.

“This is a letter that makes a lot of sense both legally and as a matter of public confidence in the judicial system,” said Los Angeles defense lawyer Marcia A. Morrissey. “Everything that goes on behind closed doors about dismissing jurors is being spun out in a way that reflects very negatively on the jurors, simply because no one knows what the true facts are.”

Morrissey said that the issue is complicated somewhat because the ACLU, rather than the jurors, is requesting the disclosures. However, she said that to the extent Ito made representations to the jurors promising no disclosure, that raises serious concerns about the public’s right to attend the trial and Simpson’s 6th Amendment rights.

“The judge can make all sorts of promises about confidentiality, but the overriding concern here is the right of the accused to a public trial,” Morrissey said. “That is a very important right. To the extent proceedings are conducted behind closed doors under a veil of secrecy, the defendant and the public are deprived of the sense that these are fair proceedings. Both the accused and the public have a right to know.”

Veteran Deputy Dist. Atty. Sterling Norris also supported disclosure. “I would think that from both the judge’s standpoint and the prosecutor’s standpoint, you would want a clear record on what basis the judge is excusing jurors, if for no other reason than this could be a point raised on appeal if Simpson is convicted,” Norris said.

But at least one jury consultant questioned the wisdom of public disclosure. Terri Waller of the Oakland-based National Jury Project-West said the ACLU letter presents the judge with a dilemma. “Ito is trying to balance several concerns--the jurors’ right to privacy, the defendant’s right to a fair trial and the public’s right to know. Since the judge made a promise to the jurors, he’s in a bit of a bind,” Waller said.

She said that judges frequently decline to offer details about why jurors are discharged, often for reasons of privacy.

Los Angeles attorney Kelli L. Sager, a media law specialist, said that although there are numerous cases supporting the right of the public to attend a trial and obtain jury questionnaires, there are very few cases on the specific issue at hand here.

However, she noted that in a decision ordering the release of a transcript about why a juror was discharged, a Florida appeals court said that a juror who has engaged in misconduct loses any privacy rights he or she may have had in regard to that proceeding.