“Somebody That I Used to Know”1: Jury Anonymity and Retaliation

Angry defendants retaliating against jurors is something that might be straight out of Hollywood or literature, but is a real concern for jurors on high profile cases. 

A recent gang trial highlights this issue because the prosecution wants the juror’s identities to remain secret and the judge hasn’t decided but stated that “having an anonymous jury ‘is an extreme measure’ and that it seemed to him it should be done only when some type of jury tampering is likely to occur.”  The street gang member is charged with racketeering and murder and the jury will have to consider the death penalty.  In addition, the prosecution characterized the gang as “violent and vicious” in filings. The type of case here seems extreme enough to me to allow the identities of the jurors to be kept secret.  Jury tampering might not be an issue right now, but the gang has been known to retaliate against perceived threats and jurors deciding the fate of a gang leader is enough for me to keep the jurors’ identities secret.

In Texas, the offense of juror retaliation is a second degree felony.  The statute, in relevant part, states:

A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act: (1)  in retaliation for or on account of the service or status of another as a: (A)  public servant, witness, prospective witness, or informant; or (c)   . . . the victim of the offense was harmed or threatened because of the victim's service or status as a juror . . . . 

According to a New York Times article, in Wisconsin, a trial judge uses only juror numbers and not names in drug cases for fear of retaliation.  The arguments for this approach are that the jurors feel more comfortable and less fearsome.  The arguments against this approach, especially in everyday cases, is that it makes the jurors less accountable because their names are not being used and that the presumption of innocence is damaged. 

The accountability argument holds water.  For example, people turn vicious when they are protected by an anonymous screen name online and probably would be more inclined to speak falsities to get off of the jury. 

The damaged presumption of innocence argument also makes sense.  A lot of jurors have a hard time not thinking that a defendant has done something just by being in the chair, so jurors also knowing that the special practice for their trial is that the defendant can’t know the juror’s names and information would increase this hurdle.

Another concern is that jurors should be protected from being “pestered by the news media.”  This does not strike me as a pressing concern because if the media cared, the attention would be for a short time and a juror could easily say no comment a few times and the media will move on to the next big story. 

Whether jurors remain anonymous should depend on the severity and type of case and the history of the defendant when it comes to retaliation.  Keeping jurors anonymous in everyday cases when there is no fear of retaliation is not necessary because getting to know the jury based on its demographics is a vital part of voir dire.

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1: “Somebody That I Used to Know” by Gotye (2011)