JAMES B. ZAGEL, District Judge.
This order involves a motion to intervene filed in the ongoing criminal proceeding against former Illinois governor Rod Blagojevich and his brother Robert Blagojevich.
On June 1, 2010, Chicago Tribune Company, New York Times Company, Illinois Press Association, and Illinois Broadcasters' Association (collectively "Press Intervenors") filed a Motion to Intervene and for Immediate Access to Names of Jurors in the trial of Rod and Robert Blagojevich. In their motion, Press Intervenors sought to intervene "for the limited purpose of objecting to an anonymous jury trial and seeking immediate access to the names of jurors during this public criminal trial." Press Intervenors argued that both the common law and First Amendment mandate a presumption of public access to jurors names, and that there is no justification for withholding the names until after the verdict is returned. Press Intervenors made no request for a hearing. The motion was noticed for presentment on June 3, the day voir dire was scheduled to begin. On June 2, potential jurors came to the courthouse to complete juror questionnaires. That afternoon, I informed the venire that their names would not be made public and that the names of the jurors selected for the trial would be released only after the verdict was delivered.
On the morning of June 3, Press Intervenors presented their motion to the Court. The government objected, arguing that there is no qualified right of access to juror names before the verdict is returned, and even if there were such a right, non-disclosure would be justified to protect Defendants' right to a fair trial in this case. Press Intervenors maintained that the First Amendment right of access to criminal proceedings generally attaches to voir dire and includes the names of the jurors. In this case, the personal safety of the jurors is not at issue, and the "hypothetical problem" of contact from bloggers could be more effectively (and less restrictively) dealt with by properly instructing the jurors. Access is most important in cases of great public interest, and the press could, as it had in the past, help to deter intentional misrepresentations by jurors and uncover any relevant omissions that could lead to the dismissal of certain jurors.
On appeal, the Seventh Circuit vacated the deferred-disclosure order. United States v. Blagojevich, 612 F.3d 558, 565 (7th Cir.2010). The Court rejected an absolute right of access to the names of the jurors, but required that a hearing be held so that the parties may present evidence, alternatives may be considered, and findings of fact may be made. I held this hearing on July 22, 2010.
That this is a highly publicized case is not in dispute. The international media coverage in this case has been thorough and extensive, both before and during the trial. See, e.g., Bob Secter and Jeff Coen, "The Prosecution Rest ...," CHICAGO TRIBUNE (July 15, 2010); Richard Roeper, "Blago on the Stand?" CHICAGO SUN TIMES (July 15, 2010); Associated Press, "Prosecution Rests in Blagojevich Corruption Trial," BOSTON GLOBE (July 15, 2010); "Rod Blagojevich Says He'll Testify in his Own Defense," NBC TODAY SHOW (July 14, 2010); Mark Guarino, "Rod Blagojevich Defense: Advisers Gave Him Bum Advice," CHRISTIAN SCIENCE MONITOR (July 13, 2010); Peter Slevin, "Blagojevich: Musings of Ex-Governor Include Bleep the Public, Oprah for Senator," WASHINGTON POST (July 13, 2010); James Warren, "When Adversity Comes Calling, Some Actually Answer the Door," NEW YORK TIMES (July 11, 2010); Mike Robinson and Michael Tarm, "Aide: Blago Hid From Staff," NEWSDAY (July 9, 2010); Lauren Etter, "Obama is Invoked at Blagojevich Trial," WALL STREET JOURNAL (June 25, 2010); Michael Tomasky, "The Blago Trial," GUARDIAN.CO.UK (July 8, 2010);
During the time leading up to trial, as well as during the trial, I have received several communications from opinionated members of the public. At a July 12, 2010 hearing on this matter, I explained the number and content of certain unsolicited e-mails I received regarding this trial. I noted that for the most part, these e-mails seemed to be an attempt to be persuasive to the reader. On July 13, 2010, I informed the parties of two voice mails and a letter I had received, all expressing, either directly or indirectly, some opinion of the proceedings or my conduct in them.
On July 19, a member of the public called my office and repeatedly asked my assistant whether, at the close of the day's proceedings, he might have a chance to stand up in court and tell me that he thought I was being unfair and that I should allow all of the recordings of Defendant to be played (a view expressed publicly and consistently by Defendant Rod Blagojevich). On July 20, I received an e-mail from a person claiming to be the King of Japan. The author explains that she was told by Defendant Rod Blagojevich that Blagojevich would leave an envelope containing a check for $200,000 at an office in the Thompson Center. When author tried to pick up the envelope, she was told it was not there. In the e-mail, the author asks that the Court arrange for the collection of the money.
On one other occasion, I was stopped on the street by a member of the public (who I did not recognize) and advised that I should take into account the "guilt" of the voters who elected Defendant governor.
The government points out that there have been several instances of individuals not related to this case seeking to insert themselves into the proceedings, in one instance by filing an uninvited amicus brief asserting a mass government conspiracy (docket entry 441), and in another by filing a "counterclaim" seeking $10 billion as well as certain records pertaining to the theft and sale of her grandchildren-records she claimed were taken from Defendant Rod Blagojevich's office in the course of the government's investigation (docket entry 376). Subsequently, this individual attempted to enter the courtroom against the Marshals' orders, became disruptive, and was eventually charged and convicted of contempt of court. As I iterated in my initial denial of the Press Intervenors' motion, the extraordinary attention being paid to this case leads not only to the expression of opinions, but also to the view that the trial is an opportunity to be noticed.
Also presented by the government is a sampling of cases in which jurors were exposed to unsolicited outside influence. These cases involved jurors receiving letters and threatening phone calls, and being followed and confronted by strangers (both out in public and, in one case, outside a juror's home).
Attached to Press Intervenors' initial motion to intervene is the affidavit of Matt O'Connor, an editor for the Courts/Metro section of the Chicago Tribune, in which he declares that in his more than 35 years of reporting, including 15 years of covering court proceedings in this courthouse, there has been a long history of "an open, public jury selection process, which includes public access to juror names in both routine and high profile cases." He further avers that he has personally routinely observed the names and hometowns of jurors stated in open court during voir dire, with rare exceptions usually in cases where the safety of the jurors was a concern. Press Intervenors also include copies of model
In moving to intervene, Press Intervenors argue that there exists at least a qualified right of access to the identities of impaneled jurors in a criminal case while the trial is pending. According to Press Intervenors, both the First Amendment and the common law mandate a presumption of public access to the jurors' names, and this presumptive right attaches no later then the swearing and impaneling of the jury. This presumption of openness may be overcome only by a showing that closure is necessary to "preserve higher values and is narrowly tailored to serve that interest." Only threats to jurors' safety or jury tampering may justify the withholding of the jurors' names, and Press Intervenors maintain that in this case no such evidence has been presented. The potential for unsolicited juror contact or the publishing of background stories about the jurors exists in every high-profile case, movants argue, but such hypothetical and generalized concerns are not enough to overcome the presumption that they assert exists. At the June 22nd hearing, Press Intervenors explained that obtaining the names once the jury is impaneled enables them not only to do human interest reporting on individual members, but also to protect the public and the judicial process by fulfilling a "watch-dog" role and exposing any problems with juror conduct. Also, Press Intervenors note that transparency is an interest in and of itself that is served by immediate disclosure.
In support of their argument, Press Intervenors rely primarily on Press-Enterprise Company v. Superior Court of California, 464 U.S. 501, 510, 104 S.Ct. 819, 78 L.Ed.2d 629 (1984), in which the Court recognized a rebuttable presumption, rooted in the First Amendment, that jury selection is a public process, and United States v. Wecht, 537 F.3d 222 (3d Cir. 2008), which extended this presumption to encompass the jurors' names. In Wecht, the Court vacated the district court's order restricting access to the jurors' names, finding that there is a presumptive First Amendment right of access to the names of both prospective and impaneled jurors and that there was insufficient evidence of threats or harassment to jurors to overcome the presumption.
In its opinion on appeal in this case, the Seventh Circuit rejected an absolute right of access to jurors' names. In finding a presumption in favor of disclosure, the Seventh Circuit declined to rely on the First Amendment, an approach embraced by Wecht Court.
I am bound by the Seventh Circuit's holding on appeal, and therefore begin my analysis with a presumption that the names of the jurors in this case should be disclosed. Improper contact with a juror during the course of a trial is governed by a presumption as well; such contact is presumptively prejudicial to the defendant. United States v. Harbin, 250 F.3d 532, 544 (7th Cir.2001) (citing Remmer v. United States, 347 U.S. 227, 229, 74 S.Ct. 450, 98 L.Ed. 654 (1954)). Attempts to communicate with a juror, even if heartfelt and impartial, pose a danger to the rights of the person on trial and his opponent are discouraged. Actions which have a significant potential of intimidating jurors or disturbing their tranquility to the point that they lose the ability to rationally consider the evidence or follow instructions are also to be discouraged.
That such actions can and do occur is undisputed. But the simple fact that this conduct might occur does not justify any level of juror anonymity. There must be a significant risk that the conduct will occur in order to overcome the presumption.
There is precedent in this district for deferred disclosure of juror names. In United States v. Black, 483 F.Supp.2d 618 (N.D.Ill.2007), another high-profile criminal prosecution in this district, Judge St. Eve deferred release of the jurors' names.
Here, not only do the same risks exist, but there is evidence that if jurors' names are made public, they will be subjected to improper outside contact. It is true that the possibility of jurors being inappropriately contacted by phone is not a new one, but the possibility of contact by email or through social networking sites is relatively recent, and the ubiquity of these media is astounding. I have already received several communications by e-mail, telephone and in writing. All of these communications are clearly an attempt to somehow influence the decision maker in this case. Although the voice mails and forged letter are clearly the work of "cranks and gadflies," (as they are referred to by Press Intervenors), they would most likely be distressing to a juror who receives them. A parade of insults from a stranger, while perhaps less startling to a judge, is no doubt alarming to most people. Another caller insisted that he be allowed to express his view of the trial thus far to me in the courtroom at the end of the day's proceedings, and yet another e-mail received only days ago, explains that its author, the King of Japan, was told by Defendant Rod Blagojevich that the defendant would pay him $200,000.
Perhaps more problematic than the contacts from "cranks and gadflies" are the well-reasoned and articulate e-mails I have received which are clearly attempts to persuade me and influence my decision-making. Such communications seem to be an example of the prevailing public view that individuals should express their views regardless of their knowledge or skill.
Also apparent in contemporary media is that the request for individual expression seems to revolve entirely on highly publicized events. There seem to be few requests for public input on more obscure issues such as arms treaties and city parks, as well as other topics that have transited quickly across the public horizon. The events on which members of the public are invited and encouraged to opine are those currently in the news.
Press Intervenors argue that there is no "unusual risk" in this case that would justify the deferred disclosure of juror names. They cite to several comments I have made including comments that indicate that certain forms of outside influence "are all problems we've dealt with before," and that the receipt of certain communications by judges is not uncommon. According to the Press Intervenors, these comments reveal that the situation currently before me is in no way exceptional. They argue: "There have always been cranks and gadflies that will send letters or stand up in the courtroom and tell the jury what to do," However, just because such issues have arisen in the past does not mean that they cannot justify deferred disclosure, that they are not "unusual" in the context of the dozens of trials held in this courthouse each year. Courts everywhere have dealt with the threat of prejudicial contact in high profile cases-sometimes by deferred disclosure, see, e.g., In re Globe Newspaper Co., 920 F.2d 88, 91 (1st Cir. 1990), by anonymity, see, e.g., United States v. Calabrese, 515 F.Supp.2d 880 (N.D.Ill.2007); by sequestration, or by special instruction.
Press Intervenors maintain that the fact that "cranks and gadflies" may now reach
Press Intervenors cite United States v. Antar, 38 F.3d 1348, 1363 (3d Cir.1994) for the proposition that threats to the deliberative process must be "actual and specific, not conclusory and generic [,]" and the court "must articulate findings of the actual expectation of an unwarranted intrusion upon deliberations or of a probability of harassment of jurors." Such threats are real in this case, and not generic or ordinary. In the months leading up to trial, through to July 20, 2010 (two days before this hearing), I have received numerous communications by e-mail, phone, letter, and in person. At least one communication has bordered on threatening (and is certainly harassing), others have expressed a wide variety of opinions on both the Defendants' guilt or innocence as well as evidence presented, and still others have alleged certain unverified (and often incredible) facts in connection with this case. Furthermore, the government has presented instances in which jurors in other publicized cases have been pestered by letter, phone, package delivery, and in person. Press Intervenors discount these accounts because none of these incidents has resulted in a mistrial based solely on the outside communications. Essentially, Press Intervenors argue that any threat of prejudicial contact is "speculative" until a juror on this case actually receives a harassing phone call, letter, electronic post or visit from a third party which would result in a mistrial. This basically requires me to wait for the prejudicial contact to occur before I can evaluate the threat that it might occur. I do not believe that this is what the Court of Appeals had in mind. Moreover, in order to "test" the likely possibility that harassment would occur in the way that Press Intervenors suggest, I would have to release the names, thereby precluding any possibility of protecting the jurors identities down the road. Again, I do not think this is what was contemplated by the Seventh Circuit or the common law tradition on which its opinion is founded. The common-law tradition and applicable statute make it clear that judges may take preventative measures where justice requires. Blagojevich, 612 F.3d at 563-64.
Press Intervenors' evidence in this matter is telling in that it helps to demonstrate the unique nature of this case. As reflected by the declaration of Matt O'Connor, I and other judges have released the names of jurors in most cases, even in many high-profile cases. Deferred disclosure is not justified in every criminal case, nor even in every high-profile criminal case. Id. at 565. However, the case before me is not a typical example of even the relatively small number of high-profile cases.
In addition to the risks of disclosure to the public, the press' investigation itself also presents significant risks that the jurors will be distracted and unable to fulfill their sworn duties, and that such investigation would "undermine the jurors' ability to adhere to the Court's repeated instructions not to read, watch, or listen to any media coverage regarding this case." Black, 483 F.Supp.2d at 631. Although the law recognizes only limited circumstances in which an individual right of privacy is actionable against the media, jurors may well feel a sense of invasion that accompanies a personal investigation, and knowledge that the media is conducting such an investigation carries a significant risk that jurors will not be able to function effectively. At the very least, jurors whose lives are thrust into the media spotlight will be curious and tempted to seek out media coverage of them personally.
In addition to the general risks of disclosure, disclosure at this point in the trial poses additional hazards. In this case, all of the potential jurors were informed on the afternoon of June 2, 2010 that their names would be disclosed only at the end of the trial. As Judge Posner points out in his dissent from the denial of a rehearing en banc, were I to renege on this promise now "the jurors may well be upset, concerned for their privacy, fearful of the prospect of harassment ... and angry at having been induced by false pretenses to agree to take months out of their life to perform jury service." United States v.
Of further concern in releasing the names at this point is the possible impairment of judicial authority. As I explained in my July 13, 2010 order in this matter, the judge is the neutral in an adversary system. Jurors see the judge as a protector and arbiter of fairness and civility. For the judge to revoke his or her assurance that the jurors' privacy would be protected could result in a sense of distrust and lend a sense of illegitimacy to the process and the judge's role. In a case with divergent views about which arguments are legitimate, some of which have already played out in the presence of the jury, there is an unacceptable risk that one or more jurors might doubt the reliability of the instructions I give them.
A final issue is the question of which twelve names should be released, This jury panel consists of twelve members who will deliberate and reach a verdict, and six (now five) alternates who will not participate in the deliberations.
The amount of media attention in this case, the personal connection of the voters to one of the defendants, the public statements and appearances of Defendant Rod Blagojevich, and the number and quality of communications I have received lead to my judgment that the unusual risks associated with releasing the jurors' names during trial overcome the presumption of disclosure. Compounding these general risks of disclosure are the risks specific to this case, which stem from the fact that jurors were told at the start of selection that their names would be withheld until after a verdict is entered.
The fact that the presumption has been overcome does not necessarily justify withholding the jurors' names if there is some lesser way to prevent the harm I have discussed.
While there exist in theory some alternatives to deferred disclosure, many of these alternatives would no doubt impose significant hardship on members of the jury. One alternative would be to instruct jurors not to answer calls, listen to voice mails, or open e-mails and letters from numbers and addresses they do not recognize and to change their privacy settings on all social networking sites. Or, similarly, jurors could be required to surrender their cell phones and computers.
Press Interveners note the presumption that juries will obey the Court's instructions in support of their argument that instructions prohibiting the use of certain electronic communication will suffice to minimize the risk of prejudicial contact. See, e.g., Jonasson v. Lutheran Child & Family Servs., 115 F.3d 436, 439 (7th Cir. 1997); Jones v. Lincoln Elec. Co., 188 F.3d 709, 732 (7th Cir.1999). But, in this case, I cannot rely solely on instructions. First, much of my concern lies not with the conduct of the jurors, but with that of outsiders. I have little doubt that the jurors in this case would do their best to follow the instruction to alert the court or its staff to any contact from outsiders, but it is that contact itself that concerns me. Instructions will not curtail such contact. Furthermore, Press Intervenors seem to brush aside concerns that my judicial authority would be undermined and my ability to bind jurors to instructions impaired were I to renege on my promise to the jurors of deferred disclosure. However, these issues must be addressed.
First, the presumption that jurors will follow instructions is certainly rebuttable, and reneging on a promise involving the revelation of jurors' identities during the trial may certainly be enough to overcome that presumption. See Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (noting that "there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.").
Second, Press Intervenors seem to give great weight to the presumption that jurors will follow instructions, but little weight to the presumption that a juror will be truthful (even if mistaken or inaccurate) during voir dire and in the questionnaires. See United States v. Huguenin, 950 F.2d 23, 30 (1st Cir.1991) (agreeing with the Fifth and Sixth Circuits that there is a presumption that veniremen tell the truth on voir dire, even in response to "sensitive and potentially embarrassing questions.") (citations omitted). This makes little sense, and Press Intervenors fail to make clear why one presumption should be given more weight than another, especially in light of the fact that release of the jurors' names at this time might well distract or disturb jurors to a point where they may be unable or unwilling to follow instructions.
Sequestration at this point during the trial would also result in significant hardship on the jurors. As the Seventh Circuit seemed to acknowledge in its opinion, sequestration generally is an extreme alternative. Blagojevich, 612 F.3d at 563-65. At the time I expressed my views about deferred disclosure (on June 1, 2009 and May 17, 2010), the trial was expected to
Because alternative methods of protecting the jurors from improper contact are not satisfactory, I find that the jurors' names should not be made public prior to the entry of a verdict. There is little precedent involving the unique circumstances surrounding this case, and it is set against a relatively new backdrop of public openness via blogs, electronic communication, and social networking sites. As a result, there is, I think, some degree of judgment necessary to determine the best way to protect the legitimate interests put forth by both sides. Of the interests cited by Press Intervenors, both human interest reporting and juror investigations can be conducted once the names are released at the end of the trial. Any issues raised by juror investigations can be addressed and remedied even after the trial is over. However, the risks that jurors will be improperly contacted, or may be unable to perform their sworn duties either due to stress, distraction, or a lack of trust in my instruction implicate far weightier public interests in this case than the interest of the Intervenors in pre-verdict rather than post-verdict revelation of jurors' names. Under these circumstances, the danger of a mistrial resulting from juror misconduct is less likely than the possibility of prejudice
For the foregoing reasons, Press Interveners' motion for immediate public access to jurors' names during this criminal trial is denied, and the government's motion to limit public release of juror names is granted. Jurors' names will be made public after a verdict is returned.
Voicemail received 4/21/2010 9:37 PM
From 773 727 4829
Fuck you, Judge Zagel. You fucking arrogant bitch ass mother fucker. Fuck you, fuck you, James B. Zagel. Fuck you.
Received 6/23/2010 8:52 AM
From 863 701 5126
Hello, Judge Zagel?
Monday, July 19
Call to 312 435 5713
Between 2:00-4:00 p.m.
Caller number (trunk) 1325-xx
The male caller began asking general questions about how he could observe the trial. He asked questions about getting in and if the public is allowed entry to the courtroom. He also asked if he could speak up at the end of the trial day. I explained that only the Judge, lawyers and defendants are allowed to speak in the courtroom. He asked his question about speaking up in a few different ways. He was surprised at my answer, even asked me if I was sure about it. He assumed he could have a chance to comment in court. He said that he thought the Judge was unfair with Blagojevich, and he should be allowed to play all or more of the tapes in court.
The caller had an Eastern European accent, and his demeanor was excited and slightly agitated. I suspected that he might have been in the courthouse when he called, but I have no evidence of that.
I believe that the same caller had called previously (on another day). It was a brief call, and the caller ranted about the unfairness of the tapes, but was not specific or clear about his reason for calling.
July 20, 2010
To: ALL THE JUDGES
FROM: IAM (SELENA ERIKA NICHOLE WILSON)
Dear Judges,
I want to apologize to you for having to write to you all. I have a judge I think by Blagojevich however I don't have your name. I am IAM, I am King of Japan and are eager to get to my home and places. I use (Selena Erika Nichole Wilson) for law. I am in Municipal, Civil, and State law in which is ward I think.
I am told by Gov. Rod Blagojevich to go to the office on Randolph at the Thomson building and get my envelope, he hold me what's inside it's my check for the amount 200,000 dollars. I went there and have asked, and even recently last week I went there and I called, but I was only told no there wasn't any thing for me and also to call back.
Blagojevich told me to leave as soon as the incident happened. An incident that has high security going on with it. I tried to get my envelope, however it wasn't there when I went to pick it up. Another thing judge I am a King as I mentioned above and arc ignored by the people that I have to rent from I let them know I am a king and they ignored me and my writing. I learned in school they are not suppose to. I am a paralegal student at Robert Morris. I learned King and Heir and civil in King Law. I learned who and how to write also. I learned other things and am trying to practice, however I am blocked from normal living.
I have to go walk around and travel in other ways with a lot of people connected to my head and vision, although I am ok, I want it to stop. They talk to each other while using me and they interrupt my company, I have someone to be with and it isn't right that he has to be with me under these conditions. Now judge, I have learned that I will have an operation that can get rid of the whole thing but as for now I am bothered with individuals commenting on who I am with, what I vision at times, routs I should take, are interrupted so that these people can have me there way and other things.
I don't know all the individuals and have reported, the numbers are HR494504 to CPD officer Moser.
I haven't heard any thing from him but this is
