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Supreme Court mulls when courts can use anonymous juries

The U.S. Supreme Court is set to take up an Arizona-based case weighing whether courts can use anonymous juries at their discretion.

Innominate juries, or a jury whose members are called by numbers instead of names, are often deployed in high-profile cases to protect jurors from jury tampering, social pressure or the media.

But Cochise County Superior Court, the court at the center of the case, uses innominate juries in all criminal proceedings, and other Arizona courts have rules in line with the practice as well.

While the state’s Court of Appeals and the Arizona Supreme Court argue the use of innominate juries protects the privacy and integrity of jurors, David Morgan, litigant in the case and journalist in Cochise County, says anonymity obfuscates an integral part of the court system.

The eventual ruling will provide a uniform answer to splintered opinions across state and federal courts on whether the public and press reserve the right to jurors’ names as part of open court proceedings.

“There’s certainly insufficient information available to the public to know that the system is really working the way it’s supposed to,” Morgan said.

Morgan founded the Cochise County Record, a public records heavy publication with a laser eye on court and government happenings in the county.

He finds public access to court proceedings plays an invaluable role in checking the legal system, and access to jury information proves useful in ensuring an absence of juror misrepresentation or misconduct

So, when Cochise Judge James Conlogue, on direction from the Cochise County Attorney’s Office, implemented a policy using innominate juries for criminal proceedings in the county, Morgan grew wary.

“You’re the guinea pigs,” Conlogue said, according to court transcript, “So we’ll see how that works.”

Morgan first challenged the constitutionality of innominate juries in a murder trial. He argued the public had a right to know names under decisions from two Supreme Court cases, establishing access to pretrial proceedings, including jury selection.

The judge denied the motion and noted the innominate jury order would only be in effect during the trial. But Morgan sought out the names of the jurors after the proceedings and was again denied.

After learning of a second anonymous jury, Morgan filed another motion to intervene but was again rejected by the judge. He consolidated the two actions in the Court of Appeals and enlisted the help of Gregg Leslie and the First Amendment Clinic at Arizona State University.

Leslie and student-attorneys argue the public has a right to jurors’ names under Supreme Court cases Press Enterprise I and II.

The first of which established access to “voir dire,” or jury selection, and the second to court proceedings, unless keeping proceedings open would interfere with the right to a fair trial.

“Every decision from the Supreme Court on down has talked about the importance of openness to maintain the credibility of a criminal justice system that really has no other means of attaining credibility other than by being accountable to the public,” Leslie said.

The Court of Appeals said the right of the public to observe jury selection did not include an explicit right to the names of jurors, so they appealed the case to the Arizona Supreme Court.

Leslie and the clinic’s student attorneys clarified they are not trying to eliminate exceptions, but rather asserting the public’s right to access proceedings under the First Amendment.

“What we are challenging is a practice of routine closure of jury names during voir dire without justification,” Evan Stele, a student-attorney, said beginning his argument at the Arizona Supreme Court. “We are not asking for openness in all cases and under all circumstances.”

Michael Powell of the Cochise County Attorney’s Office asserted that across Arizona rules and statutes, jurors’ names are not released.

But Chief Justice Robert Brutinel and Justice Ann Timmer pointed out any regulations are moot if they are found to be unconstitutional.

The Arizona Supreme Court, though, ruled the practice to be constitutional.

And in the opinion, the justices found names to be especially sensitive, “in this internet age, where jurors’ names can trigger lightning-fast access to a wealth of biographical information.”

“Any slightly positive role in divulging jurors’ names to the public is outweighed by the risk to jury integrity,” the opinion read.

The Supreme Court now takes the case. But the Arizona Attorney General’s Office asked for an extension to file a response, which pushes the case to a changing Attorney General’s Office and potentially to the high court’s next term.