Bill on Jury Anonymity Touches Off Legal Debate

An effort to protect the identities of jurors in trials involving gang members is under fire at the Capitol for going too far and for expanding such protection to all criminal trials in California.

The battle pits a veteran conservative Republican from Arcadia and at least one municipal judge against prosecutors, defense attorneys, civil libertarians and newspaper publishers.

Supporters say jurors need more protection from possible intimidation, while opponents point out that the law already provides jurors with enough protection in sensitive cases and that efforts to keep jurors’ names secret is unwarranted.

In California, a state law that took effect Jan. 1 requires the sealing of jurors’ identities after a criminal trial has concluded.

In addition, under guidelines by the U.S. Supreme Court, judges in state courts are allowed to seal the names of jurors from the public at the onset of a trial if there is a compelling reason to do so, such as protecting a defendant’s right to a fair trial. Also, it is against the law to threaten or harm a juror.

But that isn’t enough, says state Sen. Richard L. Mountjoy (R-Arcadia), who has introduced a bill (SB 1199) that seeks to broaden jury confidentiality. Mountjoy wrote the bill at the behest of Los Angeles County Municipal Judge Philip Mautino of Bellflower.

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Under the bill, an individual juror, group of jurors, lawyers in the case or the judge could invoke jury confidentiality at the start of any criminal trial and give them identification numbers, if it was “in the best interest of the jurors.”

The bill defines “best interest” as protecting jurors from actual or threatened harm, shielding them from the “apprehension” of being harmed or making them “feel more comfortable in their role as jurors.”

No one except the judge and his clerks would know the names and addresses of the jurors, not even the attorneys.

Mountjoy said his legislation is aimed at gang members who, he said, sit in court audiences and try to intimidate jurors with hard stares. He said they also have been known to follow jurors to the parking lots and their homes.

“I don’t think knowing the names of someone is all that important,” said Mautino, the presiding judge of Los Cerritos Municipal Courts.

But opponents of the measure criticize the plan as an attack on the cherished American tradition of an open and public trial.

They argue that the extraordinary step of making the jurors’ names secret at the outset of a case could prejudice a defendant’s right to a fair trial by planting the notion that the accused must be a dangerous person.

“If you tell jurors we need to protect you, you are sending a message that there is something to fear. That could be a serious prejudice to the defendant,” said Katherine Sher, lobbyist for the 2,000-member California Attorneys for Criminal Justice, which represents defense lawyers.

Vernon Pierson of the California District Attorneys Assn. said the bill would prevent prosecutors and defense attorneys from being able to verify the accuracy of information provided by jurors when they are selected for a trial. For example, he said, lawyers for either side would be prevented from learning whether a juror had a criminal record or a history of prejudice.

In addition, prosecutors and defense attorneys say they fear they would be blocked from interviewing jurors in cases of possible of misconduct.

Another critic, Thomas Newton, general counsel of the California Newspaper Publishers Assn., warned that the “next step is to take a pane of one-way glass and put it between the jury and everybody else.”

But Mautino and Mountjoy counter that such fears are unfounded. They assert that merely substituting an identifying number for a juror’s name would help the juror concentrate on the case without worrying about possible gang retaliation.

The bill is scheduled for its first hearing Tuesday in the Senate Criminal Procedure Committee. Meanwhile, there are indications that it may be folded into a more far-reaching jury reform proposal inspired in part by the O.J. Simpson trial.

Separate legislation, supported by prosecutors and peace officers, is advancing in the Assembly that would let juries in criminal trials return non-unanimous verdicts of 11-1 or 10-2. The proposed constitutional amendment (ACA 18) by Assemblyman Richard K. Rainey (R-Walnut Creek) is aimed at reducing the number of hung juries in noncapital cases.

Mountjoy said that a second advantage of his bill is that it would prevent members of the news media from learning the names and addresses of jurors.

“Nobody has ever proven to me that having television cameras or newspeople on your doorstep does anything for the justice system,” Mountjoy said.

He said the news media’s knowledge of jurors’ identities harms justice by “putting [jurors] in a spotlight, and they think that their decision is going to be favored or not favored by the press.”

During the Simpson trial, the names of jurors were kept secret from the public by the court. However, the identities of most became available to reporters.

In the average criminal trial in California, the identities of jurors, their addresses, places of work and other information typically become public during the question-and-answer phase of jury selection.

Mountjoy said the new law that provides for the sealing of jurors’ names at the end of a criminal trial is worthless because by then “everybody already knows them.” The new law is intended to protect former jurors from convicts who send harassing mail from prison.

Mountjoy said juror intimidation by gang members is increasing as “gangs get braver and braver.” For specifics on the scope of the problem, he referred questions to Mautino.

Mautino indicated that jury stress--not intimidation--was his chief concern. He said that reducing stress would encourage more people to step forward as jurors.

“I think there are a great deal more cases of stress than actual cases of intimidation,” Mautino said.

A couple of years ago, Mautino used numbers to identify anonymous jurors in his courts. He abandoned the practice after a legal challenge.

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Mautino said stress typically occurs when a juror unaccustomed to violence finds himself or herself thrust into a case involving murder or other violence. Complicating matters, he said, are cases where the audience may include gang members and other dangerous people.

“In some courts, they don’t want to wear their juror identification badge. They feel like they are being watched and looked at. It is an intimidation,” Mautino said.

He said his wife served on a Superior Court murder-robbery jury and emerged from the experience stressed-out, even though there were no incidents of intimidation or threatening behavior. “In gang and felony cases, it is very stressful on the jury,” he said.

But opponents of the Mountjoy bill, including Sher, of the defense lawyers association, and Francisco Lobaco, a lobbyist for the American Civil Liberties Union, question whether there is a demonstrated need for keeping the names of jurors secret.

“How many intimidation cases have you heard of?” Sher asked. “Maybe it has happened once or twice in the last five or 10 years. Do you make the rules to fit the very exceptional case, or do you keep a rule that protects the values we have in the criminal justice system?”