Sunday, July 26, 2009

Stephen Cardosi, the foreman in the Scott Peterson murder trial, has some advice for states considering anonymous jurors in all crimes. So does fellow juror Mike Belmessieri, and they don’t agree.

Hounded by reporters who wrote down his license-plate number and called him at 3 a.m., Mr. Cardosi says no one has the right to his or any other juror’s identity.

“The public still has a First Amendment right to know about the person who committed the crime, but you don’t have the right to know my private information,” Mr. Cardosi, a 34-year-old paramedic and firefighter, said.

“That would be like me walking up to a girl and saying, ‘Hey, I have a right to know your phone number.’”

Mr. Belmessieri faced much of the same scrutiny in the high-profile California murder trial in which Peterson was convicted of murdering his pregnant wife and unborn child. Yet he strongly disagrees. He says the stakes are too high and jurors need to take responsibility for their decisions, including who they are.

“If I’m going to send someone to the death house, I’d better be able to stand tall and look someone square in the eyes and say, ‘I did it,’” said Mr. Belmessieri, a 60-year-old retired police officer and Vietnam-era Marine.

Maryland and Virginia judiciaries are carefully considering both sides of the issue as they debate proposals that could make them the first states in the nation to mandate anonymous juries for all trials.

According to the National Center for State Courts, no states currently use anonymous juries for all criminal or civil trials, though most allow them as an option. A handful of other states are joining Maryland and Virginia in considering sweeping anonymity proposals, including California and Ohio.

Under the Maryland and Virginia proposals, a juror’s name, age, telephone numbers, address and occupation, along with other personal information, would be kept confidential from all parties involved until after a trial is completed. For the sake of identifying a juror, each individual would receive a number from the clerk of the court for jury selection and the trial.

The proposals aim to protect a juror’s privacy and, by not using anonymity selectively, avoid implying to jurors that the defendant in this case is dangerous. That runs contrary to a defendant’s presumption of innocence, proponents of universal-anonymity say. Critics, including free-press advocates and some defense lawyers, strongly disagree.

The Virginia Supreme Court is considering a jury-anonymity proposal from the Advisory Committee on Rules of the Court. A 2008 Virginia law allows judges to limit access to juror information if there is “good cause” — meaning the chance for physical injury, bribery, tampering or harassment to occur.

But Delegate Robert G. Marshall, the Prince William County Republican who introduced the bill after some judges in his county complained of jury intimidation in some gang-related cases, said he intended to give them the ability to conceal juror information at their discretion — not create a blanket law for all cases.

“I don’t know if we can craft [the law] any better,” Mr. Marshall said. “I don’t object or accept the proposal out of hand. I know a lot of people don’t like to become jurors in criminal trials because someone is uneasy, but it’s obviously a necessary component of the criminal justice system.”

The Maryland proposal from the Maryland Circuit Judges’ Association, is being reviewed by the Standing Committee on Rules of Practice and Procedure, which advises that state’s high court.

Former Maryland Court of Appeals Judge Alan M. Wilner, who heads the Standing Committee on Rules of Practice and Procedure reviewing the proposal for the high court, said he understands why the state would consider the change, though he is unsure whether he will support it.

“Typically, in urban areas, jurors are nervous and frightened,” Judge Wilner said.

“We’ve had some situations in Baltimore city in which juries have observed in court witness intimidation or threats and then become upset themselves. There is a growing concern among jurors,” he said. “What we want to do is get everyone to review this — judges, public defenders, prosecutors, defense council — and [have them] give their thoughts about this.”

California permits anonymous juries in some cases, most often highly publicized and celebrity cases. Mr. Cardosi was thrust into the public spotlight as the jury foreman in the high-profile Peterson trial.

Known as “Cap” or Juror No. 6 during the trial, Mr. Cardosi spent 6½ months as an anonymous juror. At the end of the 2004 trial, he read the verdict finding Peterson guilty of murder. Peterson now sits on death row.

Mr. Cardosi believes using anonymous jurors selectively can prejudice a jury against the defendant. Jurors can assume if the case requires their anonymity, the defendant must be dangerous, and therefore guilty, he said.

“Do it on all crimes, that way a defense attorney can’t say, ‘Because the identity of the jury is private, they obviously feel afraid of my client,’” Mr. Cardosi, said. “Right there is a presumption of guilt.

“But if the drunk guy who crashed his car into a building, who didn’t hurt anyone and isn’t going to threaten anybody, is on trial just the same, keep the jury anonymous.”

Mr. Belmessieri, known as “Treadhead” or Juror No. 4 in the Peterson trial, dismissed as “about as ludicrous as it can be” claims that selective-anonymity “would trash the entire system” by denying the presumption of innocence.

“If I’m going to deny a person their freedom and lock them up, I’d better believe in my decision and stand by it,” he said.

Mr. Belmessieri said he was threatened after helping to convict Peterson, but the Marine veteran said his reaction to such threats was “bring it on.” He added that jury tampering is possible regardless if a juror’s name is known.

“Historically, there have been problems with jury tampering, when we get into situations with people who are high-profile criminals who have committed heinous acts, that can get pretty scary,” he said. “The bribe might not be for money, but for family. I can understand where those things would come into play about anonymity.

“But not a blanket law. To accept a bribe as a juror, the penalties have to be harsh. You’re denying a society justice and none of us has a right to do that.”

Juror George Pape used his anonymous status to accept a $60,000 bribe to acquit mobster John Gotti of murder and racketeering in the late 1980s. Pape did not tell the court during the jury-selection process that he was a close friend of a Gotti associate. The connection was only exposed after a mob informant stepped forward, admitting he gave bribe money to a third party who delivered it to Pape, Juror No. 11, during the trial. Pape was convicted of obstructing justice and served a three-year prison term.

Perhaps the most notable local case using anonymous jurors was the trial of cocaine kingpin Rayful Edmond III, who was arrested in 1989 and soon convicted on drug-dealing charges. The jurors, who remain anonymous to this day, were enclosed in bulletproof glass because the court considered Edmond and his associates an immense threat to the jurors’ safety. Edmond is no longer incarcerated, but is now a part of the federal witness protection program.

D.C. courts do not usually use anonymous juries as the lists become public, or part of the case file, once a verdict is rendered, said Leah Gurowitz, Superior Court spokeswoman. The D.C. court system’s chief judge can seal a jury list at his discretion but this rarely happens.

Critics of anonymous jurors in all cases say the proposals are unconstitutional and just “plain bad public policy.”

Lucy Dalglish, executive director for Reporters Committee for Freedom of the Press, said current court conduct is crafted to reflect what the constitution requires, and any changes beyond that means the courts are overstepping their boundaries.

“The U.S. Supreme Court has said there is a presumption that criminal trials will be conducted in a public manner,” she said. “The public gets to see jury selection, and the public gets to see the evidence. If something is so sensitive that somebody believes that a portion of the trial, the record or the testimony needs to be secret, then a judge must … determine that a defendant’s privacy outweighs the public’s First Amendment right to watch it.”

Delegate David B. Albo, Fairfax County Republican, said he voted for and supports Virginia’s current system and that courts should sparingly use anonymous juries on a case-by-case basis.

“The problem with all this is it goes against the very premise of what the Founding Fathers set the system up to be,” said Mr. Albo. He is chairman of the House Courts of Justice Committee, which examines court-related legislation.

“In the old days, the British had secret trials, would pretend to have juries and tell jurors what to do or threaten jurors. The only way to make sure that trials are fair is to make them open to the public.

“The guys who wrote these rules knew what they were doing, they’re smarter than you could ever imagine. For me, it takes a whole lot to say the system they set up should be changed.”

Mr. Albo said that if he wins his November re-election bid, he expects to see legislation in front of his committee in January that would pre-empt or countermand any Virginia high court decision establishing mandatory anonymity.

Some states have gone in the other direction. New Jersey and Massachusetts have limited the use of anonymous juries.

“It’s standard procedure and rooted in the historical function of juries as being participants in the legal process and identified participants in the legal process,” said Pamela Wood, Massachusetts’ state jury commissioner. “Of course the jurors’ names are not publicized, but the statute does not provide protection for the identity of jurors, although we do take great pains to respect the privacy of jurors.”

In 2000, an Ohio trial court decided a local court failed to provide a “compelling interest” to justify the use of an anonymous jury during Clifton Hill’s murder trial. The judge never made a finding that an anonymous jury was necessary — it was an automatic decision. Ms. Dalglish’s organization filed an amicus brief before the Ohio Supreme Court in the case, asking for the conviction to be reversed as unconstitutional, though the state court’s justices upheld the conviction and did not take up the question of anonymous-jury rules.

Greg Hurley of the Center for Jury Studies, a component of the National Center for State Courts, said most states already have existing procedures to provide any needed anonymity on a case-by-case basis and a blanket anonymous jury proposal is unnecessary.

“Personally, I don’t see the need for it,” said Mr. Hurley, who practiced criminal law for 10 years. “I’m not sure if that rule is the best way to deal with that, jury instruction is best from the court. Keep doing what has always been done.”

Even if states do adopt anonymous jurors for all cases, Mr. Cardosi’s experience in the Scott Peterson murder trial leads him to doubt how effective that anonymity can be.

“It’s impossible for long trials to stay completely anonymous. The media is … ruthless. They’re sitting in the parking lot of the courthouse writing down license plates.

“The anonymous part is a facade, actually. I lived in a small town and they posted all over the papers, a 27-year-old firefighter/paramedic from Half Moon Bay, California. That kind of narrows it down.”

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