Updated at 2:42 p.m.
The Washington Post and other media outlets were wrongly denied access to jury questionnaires from the Chandra Levy murder trial, the District of Columbia Court of Appeals ruled (PDF) this morning.
Finding that the public has a right to access criminal trials, the three-judge panel wrote that this access covers jury selection. The fact that the jury questionnaires were written, as opposed to oral voir dire, made no difference, the court found.
"We hold that The Post, as a surrogate for the public, has a presumptive right of access to the jury questionnaires used in this case, and the trial court erred in not recognizing that right," the judges wrote.
Baker & Hostetler partner Bruce Brown, who argued on behalf of the Post, could not immediately be reached for comment. A spokeswoman for the Post, Kris Coratti, wrote in an e-mail that the decision is “an important reminder of the constitutional values at stake whenever the public's access to information about a criminal trial is curtailed.”
The U.S. attorney's office, through a spokesman, declined to comment.
A District of Columbia Superior Court jury convicted Ingmar Guandique in the death of Chandra Levy, a former congressional intern, in November 2010. Due to the high-profile nature of the case, the court and the attorneys crafted a written questionnaire designed to help them sort through potential jurors.
The Post and other media outlets had requested copies of the written jury questionnaires at the beginning of the trial. The court provided the press with blank copies, but Superior Court Judge Gerald Fisher denied requests to turn over the completed forms.
Fisher, according to the appellate court’s summary of events, had told the press that because the jury questionnaires included a note that they would be kept “under seal,” he did not want to breach that confidence with the jurors.
On appeal, the U.S. attorney’s office didn’t dispute that there was a public interest in releasing the forms, and that Fisher had made a mistake in promising confidentiality. The government’s position was that the newspaper waived any claim to the forms by waiting too long to file its motion.
The appellate judges found that while the Post could have avoided this whole case by making a formal motion for disclosure at the beginning of the trial – informal requests were made at first – the public interest isn’t limited to the duration of the trial. Although the jurors had already been promised that their responses would be kept secret, the trial judge could have explained later that this was an error, the appeals court wrote.
With the question of timeliness out of the way, the appellate judges were left with whether Fisher made a mistake in promising to keep the jury questionnaires out of the public eye. They found that he did. “The public-at-large has a valid interest in ‘learn[ing] whether the seated jurors are suitable decision-makers,’” the judges wrote, quoting from other case law.
Since the general public isn’t always able to attend trials, the judges wrote, “members of the press ‘are treated as 'surrogates for the public,’ and their access cannot be ‘foreclosed arbitrarily.’”
As a practical matter, the appellate judges said the trial judge must release the completed questionnaires. The judge will have discretion to recall jurors if he believes there are answers that “touch on deeply personal matters” and may need to be redacted, but that interaction would need to be on the record.
Associate Judges Stephen Glickman and Kathryn Oberly, and Senior Judge Warren King heard the case. Oberly wrote the opinion. The court heard oral arguments on Sept. 20.