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Just one month shy of a trial in E. Jean Carroll’s rape case, a federal judge revealed, without explanation, that he is considering empaneling an anonymous jury.
A relatively recent phenomenon, anonymous juries became an increasingly relied-upon tool to protect those called to serve in high-profile trials, including mafia, terrorism, and sex trafficking cases. In theory, they’re supposed to protect jurors from intimidation and safeguard their privacy from too much media scrutiny. In practice, whether you have one depends on many factors, like jurisdiction.
On the latest episode of Law&Crime’s podcast, “Objections: with Adam Klasfeld,” appellate attorney Christopher Keleher, who also wrote the University of San Francisco Law Review article “The Repercussions of Anonymous Juries” in 2010, details the fascinating history of anonymous juries, laying out their benefits and drawbacks.
“Scary or dangerous criminal cases”
Relatively rare in any context, anonymous juries are most frequently convened in high-profile criminal trials of dangerous and notorious figures. The practice began more than 40 years ago in Manhattan federal court, during the trial of Harlem’s so-called “Heroin King” Leroy “Nicky” Barnes, who gained a reputation as “Mr. Untouchable.”
“This gentleman, Mr. Barnes, was basically the Heroin King of New York, and he was a millionaire ten times over,” Keleher said. “And he had extensive contacts and connections throughout the city, both the underworld and some other people as well, just general civilians.”
Without any request from the parties, the Southern District of New York judge presiding over Barnes’ trial ordered secrecy over the identities of the jurors. The Second Circuit Court of Appeals upheld the ruling. Anonymous juries have proliferated since that time, though they are still relatively rare, a feature of the sex trafficking trials of Ghislaine Maxwell and R. Kelly and the terrorism trials of ISIS-inspired truck attack killer Sayfullo Saipov and 1998 U.S. embassy bomber Ahmed Ghailani.
“Most of the time it’s in these larger, I’ll say, scary or dangerous criminal cases,” Keleher noted, referring to the empaneling of anonymous juries.
Carroll v. Trump, on the other hand, is a civil case, and the defendant is a former U.S. president, rather than a convicted drug lord or terrorist.
Senior U.S. District Judge Lewis Kaplan, who is presiding over the case, did not reveal his reasoning on the need for anonymity in an order to show cause, and counsel for Carroll and Trump did not comment on the proposal. It remains unclear whether Trump — or a news organization — will oppose it before a Friday deadline.
Keleher, however, found it plausible that Kaplan considered accusations that Trump tried to influence witnesses in former special counsel Robert Mueller’s investigation, both of his impeachment proceedings, and the Jan. 6th Committee hearings. The risk of a “random individual” who is “mentally unstable” harming one of the jurors could arguably be a reason for anonymity, he said.
For the same reason, Keleher believes the Jan. 6th attack on the U.S. Capitol itself might be cited as one of the arguments in favor of anonymity.
If retribution from Trump or one of his supporters is a rationale, it is all the more startling which case involving the former president may likely feature an anonymous jury — and which won’t. Multiple news accounts suggest that Manhattan District Attorney Alvin Bragg (D) may be on the cusp of criminally charging Trump with offenses related to hush money paid to Stormy Daniels.
Should that case be filed, any jury of Trump’s peers to decide the historic case would be in the glare of the national spotlight. Put another way, the New York jurors deciding whether Trump must pay money to his rape accuser will be shielded; the ones deciding whether to imprison him will not.
“It’s an interesting dichotomy,” Keleher said when asked about this contrast. “All you can really point to is just the vagaries of different jurisdictions.”
New York State does not allow for anonymous juries, which is why Bragg’s prosecutions of the Trump Organization and its former chief financial officer Allen Weisselberg were public. That’s why one of the juror candidates who didn’t make the cut in the company’s case, worker’s compensation lawyer Noah Passer, was quoted in the press making candid remarks about the former president during voir dire.
“I absolutely hate him. I think he’s a liar and a scam artist and a bully. He’s a danger to our democracy, international stability and potentially humanity with his environmental policies,” Passer said in open court, according to The Associated Press. “I think his university was a scam. His charity was a scam. He has problems with the truth.”
News organizations often decline to identify New York City jurors to honor their requests for privacy, even if the state judiciary doesn’t shield their names.
Trump remains under investigation in at least three jurisdictions: the Department of Justice, New York, and Georgia, and the varying jurisdictions could result in different anonymity rules based on jurisdiction.
The Peach State, where Fulton County District Attorney Fani Willis (D) is expected to make “imminent” charging decisions, has a statute that says, “in the questionnaire and during voir dire examination, judges should ensure that the privacy of prospective jurors is reasonably protected.”
And of course, anonymous juries do not always remain secret.
Ghislaine Maxwell’s “Juror 50” gave repeated tell-all interviews under his real name, Scotty David, nearly throwing the Jeffrey Epstein conviction into turmoil in the process. The forewoman on the special grand jury recommending whether or not Trump will be charged with 2020 election-related crimes in Georgia did a media tour of major networks, potentially handing Trump a defense motion if he’s charged.
“It’s getting harder and harder, as you can imagine, to keep that anonymity when, frankly, even people themselves just love the attention and are obsessed with social media,” Keleher said. “You know, it’s their 15 minutes of fame and all.”
Though bolstered by nearly half a century of precedent, Keleher noted that anonymous juries remain controversial among criminal defendants and the news media.
“There are some definite bedrock constitutional concerns raised by anonymous juries, First Amendment, freedom of the press, Sixth Amendment, defendant’s right to a fair trial,” he noted.
Keleher believes the issue cries out for high court review.
“Obviously, sitting at the top of all of this is the United States Supreme Court, which still has not delved into the issue,” he said. “And who knows? You know, one of these Trump cases could be the catalyst for that. But I think the U.S. Supreme Court should address it and should put their imprimatur on it.”
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