By: Kelvin Childs
Can judges prohibit reporters from talking to jurors about a case forever?
California says no. Louisiana says yes. Next stop, the U.S. Supreme Court.
APPEALS COURTS IN two states have taken opposite views on whether a trial judge may ban reporters from contacting jurors after a case is over. California found it wrong, but federal judges in Louisiana found it permissible, prompting the Baton Rouge Advocate to take the issue to the U.S. Supreme Court.
In California, the First Appellate District of the state court of appeals found, Feb. 20, in favor of the Contra Costa Times of Walnut Creek, Calif. At issue was an order Superior Court Judge John H. Tiernan gave June 18, 1997 at the trial of Gayle Bishop, a former Contra Costa County supervisor convicted of five counts of misusing public funds and four counts of perjury.
From the bench, Tiernan said, “Before I send the jury out, I’d like to make it clear to anyone from the press ? the jurors told me that they do not choose to discuss their deliberations or how they reached a verdict. So I’m assuming everyone here has already received a ‘No’ from each of the jurors.” Tiernan then asked any juror who disagreed to raise a hand, then noted, “The jurors have not raised their hands. That means they are not to be contacted by the press, because they have already stated their preference not to be contacted.”
John Armstrong, editor of Contra Costa Newspa-pers, said, “Tier-nan’s order was a natural outgrowth of the judicial trend since the O.J. Simpson trial. At one point in time, jurors say they don’t want to talk to the media, so bar the media forever from contacting them.
“It was totally unacceptable, obviously, and we considered it an unconstitutional infringement on our First Amendment freedoms. The appeals court agreed,” Armstrong said. “We believe the judicial process is best served by increasing, not decreasing, public scrutiny of it, and this decision is a small but significant move in that direction.”
The paper made a motion asking the court to withdraw the order, but Tiernan never ruled on it. In December 1997, Bishop moved for a new trial, complaining of jury misconduct. The papers then asked for a hearing to reconsider the ban, which was denied, so the Times appealed to the state appeals court.
The appeals court ruled the order banning press contact with jurors “without jurisdiction and impermissibly overbroad. The order was not directed at anyone in particular, it was not based on any showing of unreasonable behavior by anyone, and it was not carefully crafted to restrain conduct while preserving the constitutional rights of those interested in the trial,” the court said.
The same day, Bishop was sentenced to three years in prison.
California does not intend to appeal the decision, said Deputy Attorney General Michael O’Reilley. “We will probably look at the possibility of proposing new legislation in an effort to further protect the privacy interests of jurors. But we have not done anything yet at this point,” he said.
Opposite in Louisiana
In Louisiana, the Advocate filed a motion Feb. 19 asking the U.S. Supreme Court to overturn a jury secrecy order issued by a U.S. district judge at the end of a racketeering trial involving former state senators Larry Bankston and B.B. “Sixty” Rayburn and four others.
When discharging the jurors on June 27, 1997, Judge Sarah S. Vance said, “I also instruct you that, absent a special order by me, no juror may be interviewed by anyone concerning the deliberations of the jury.”
The Advocate and the New Orleans Times-Picayune challenged the order, but Vance declined to modify it, and the papers then took the matter to the U.S. 5th Circuit Court of Appeals.
The appeals court upheld Vance’s order Oct. 29, 1997, citing intense media interest in the trial, in which Bankston was convicted on one count and Rayburn was acquitted.
“This factor justifies the imposition of the order entered in this case without regard to the willingness of the jurors to be interviewed or the civility of the reporters seeking to conduct interviews,” the judges wrote.
The judges also rejected the paper’s argument that the bar on questions about “deliberations of the jury” was so broadly worded as to effectively bar questions about their entire service.
In his petition to the Supreme Court, Jack M. Weiss, the lawyer representing the Advocate, argued that the high court should offer a clear standard.
He also argued that the court should support the rulings of other federal courts that have found such bans to be unconstitutional. “Unquestionably, as the 9th and 10th Circuits have held, a prohibition on ‘interviews’ concerning specified subject matter is a content-based prior restraint,” Weiss stated.
Linda Lightfoot, executive editor of the Advo-cate, said she was encouraged by the ruling in the Contra Costa Times case, although it was not a federal ruling, and by jurors’ remarks in the libel suit against talk show host Oprah Winfrey. Winfrey was sued and acquitted under a Texas law barring false and negative remarks about the quality of food.
“I think that discussion in that case clearly demonstrates the value of reading the deliberations,” Lightfoot said.
Among the problems with the 5th Circuit ruling, Light-foot said, was that it bans reporters from talking even to jurors who want to be interviewed.
Also, it puts reporters in the 5th Circuit ? which comprises Louisiana, Texas and Mississippi ? at risk of sanctions that would not be imposed in the 15 states and two territories found in the 9th and 10th Circuits.
“I think the whole issue of issuing an order to parties who are not parties to the case is very interesting,” she said.
Jane Kirtley, executive director of the Reporters Committee on Freedom of the Press, said the Supreme Court has taken on few cases relating to prior restraint since the 1980s. The most recent were the Business Week case of 1995 and an emergency order in 1994 allowing CBS to air a story on 48 Hours.
“It wouldn’t be easy to predict what the court would do,” Kirtley said.
?(ON APPEAL: Court order barring interviews of jurors in the racketeering trial of ex-Louisiana lawmaker Larry Bankston, above, about their deliberations ) [Photo & Caption]
?(OVERTURNED: Order protecting jurors from media in trial of Gayle Bishop, above, former Contra Costa County, Calif., supervisor) [Photo & Caption]
?(E&P Web Site: http://www.mediainfo. com) [Caption]
?(copyright: Editor & Publisher March 21,1998) [Caption]