The District of Columbia Court of Appeals heard arguments Tuesday morning in the Washington Post's bid to have a lower court turn over questionnaires filled out by jurors in the trial against Ingmar Guandique.
A District of Columbia Superior Court jury convicted Guandique in November 2010 of first-degree murder in the highly publicized death of former federal intern Chandra Levy.
Shortly after the trial began, the Post filed a motion asking the court to disclose a detailed questionnaire filled out by the 12 jurors and four alternates before they were chosen, but the trial judge denied the request.
The Post, supported by amicus briefs from other media organizations, claims that the judge made an arbitrary decision to withhold the questionnaires in violation of the First Amendment and common law. Voir dire is a public process, the paper argues, so the same public interest rights should apply to written questionnaires.
The U.S. attorney’s office, which is defending the court’s decision, hasn’t disputed that there’s a public interest in having jury selection information made public. The government’s position has been that the paper waived any claim to the forms by waiting too long to file its motion, and, in a turn of phrase used frequently this morning by both the judges and attorneys, it’s too late to “unscramble this egg.”
A three-judge panel of Associate Judges Kathryn Oberly and Stephen Glickman and Senior Judge Warren King heard oral arguments this morning from the Post’s attorney, Baker & Hostetler partner Bruce Brown, and Assistant U.S. Attorney Patricia Heffernan.
Oberly and Glickman began the morning by pressing Brown to explain why the Post didn’t file a formal petition for disclosure the moment the paper learned that the questionnaires would be kept under seal. Brown responded that reporters attempted to make requests informally through the court’s public affairs office before filing a formal court action.
Brown argued that the timing shouldn’t make a difference, since the public interest in having the information disclosed isn’t limited to the trial. On remand, Brown said that the judge could review the forms for any private information before releasing them, ensuring the rights of jurors are protected.
In addition to having questionnaires released in Guandique’s case, Brown said the Post is seeking “forward-looking relief” in the form of a ruling upholding the right to jury questionnaires under the First Amendment.
The judges similarly pushed Heffernan to explain why it should matter when the Post filed its request, since the government had already conceded that there should be no blanket promise of confidentiality for jury questionnaires. Heffernan said that had the Post made its formal request sooner, the judge could have had a chance to withdraw any promise of confidentiality and let jurors know about their rights to challenge public disclosure of certain pieces of information.
But “a request is untimely after the jury is sworn in,” Heffernan said. If the court did decide to remand, though, Heffernan said she would want the appeals court to order jurors be called back in and given a chance to review the forms as well.
The Public Defender Service for the District of Columbia, which represented Guandique at trial, did not take a position on the disclosure issue. Guandique is appealing for a new trial.