The opinion of the court was delivered by: RICHEY
The second trial in the above-captioned drug conspiracy case is set to begin on February 26, 1990. The jurors in the recently completed trial of the "Group I" defendants were anonymous and sequestered. Their identities were concealed from the government, the defendants, counsel for both the prosecution and the defense, the Court, and even one another. The government has filed a motion requesting that the Court take the same measures in the second trial. On January 31, 1990, the Court held a hearing on the issue of jury anonymity. After considering the arguments advanced by counsel on both sides and engaging in a careful balancing of all the pertinent factors involved -- the seriousness of the charges, the very real threat of violence, the extensive publicity, the importance of a meaningful voir dire process, and the defendants' presumption of innocence -- the Court has determined that the use of an anonymous, sequestered jury in the second trial is particularly appropriate.
Although the Group I defendants' trial was the first time a court in this jurisdiction has utilized an anonymous jury, this procedure is not without precedent. Several cases from the Second Circuit and one from the Third Circuit have explicitly approved the use of an anonymous jury under certain circumstances. See, e.g., United States v. Tutino, 883 F.2d 1125 (2d Cir. 1989); United States v. Scarfo, 850 F.2d 1015 (3d Cir.), cert. denied, 488 U.S. 910, 109 S. Ct. 263, 102 L. Ed. 2d 251 (1988); United States v. Persico, 832 F.2d 705 (2d Cir. 1987), cert. denied, 486 U.S. 1022, 108 S. Ct. 1995, 108 S. Ct. 1996, 100 L. Ed. 2d 227 (1988); United States v. Ferguson, 758 F.2d 843 (2d Cir.), cert. denied, 474 U.S. 841, 106 S. Ct. 124, 88 L. Ed. 2d 102 (1985); United States v. Thomas, 757 F.2d 1359 (2d Cir.), cert. denied, 474 U.S. 819, 106 S. Ct. 66, 88 L. Ed. 2d 54 (1985); United States v. Barnes, 604 F.2d 121 (2d Cir. 1979), cert. denied, 446 U.S. 907, 100 S. Ct. 1833, 64 L. Ed. 2d 260 (1980).
A review of these cases reveals that a court deciding whether to empanel an anonymous jury must balance, on the one hand, the interests of the criminal justice system -- protecting the jurors and their families from violence, actual or threatened, and shielding the jurors from the potential taint of extensive trial-related publicity -- and, on the other hand, the defendants' interests -- conducting a meaningful voir dire to permit the intelligent exercise of their peremptory challenges and retaining their presumption of innocence. See Tutino, 883 F.2d at 1132-33; Scarfo, 850 F.2d at 1022-23; Thomas, 757 F.2d at 1362-65 & n. 1. Moreover, the Court agrees with the Third Circuit's approach to the anonymous jury issue:
The virtue of the jury system lies in the random summoning from the community of twelve "indifferent" persons -- "not appointed until the hour of trial" -- to decide a dispute, and in their subsequent, unencumbered return to their normal pursuits. See 3 W. Blackstone, Commentaries, *378. . . . Because the system contemplates that jurors will inconspicuously fade back into the community once their tenure is completed, anonymity would seem entirely consistent with, rather than anathema to, the jury concept. In short, we believe that the probable merits of the anonymous jury procedure are worthy, not of a presumption of irregularity, but of disinterested appraisal by the courts.
Scarfo, 850 F.2d at 1023.
I. Factors Favoring Anonymity
One of the two main justifications for having an anonymous jury in the upcoming trial is to protect the jurors and their families from violence, threats of violence, or any other type of improper extra-judicial tampering. See Tutino, 883 F.2d at 1132-33; Scarfo, 850 F.2d at 1023. One way to evaluate the potential danger to jurors is to examine the seriousness of the crimes involved. See Tutino, 883 F.2d at 1132; Thomas, 757 F.2d at 1364. In this case the concerns about violence or threats of violence are justified and not based on mere speculation. The indictment charges the defendants in the upcoming trial with grave offenses, including conspiracy to violate federal narcotics laws and substantive violations of federal narcotics laws. If convicted, the defendants face substantial terms of imprisonment.
However, because the Court has severed the twenty-nine defendants -- most of whom are relatives or close friends -- and the charges against them into three separate trials, an analysis restricted to the upcoming trial does not convey a complete picture of the danger involved. The defendants in the second trial were allegedly part of a sophisticated criminal enterprise that imported millions of dollars worth of cocaine from as far away as California; systematically engaged in countless sales of large and small quantities of cocaine throughout the metropolitan Washington area; employed as many as fifty individuals; possessed semi-automatic weapons and sub-machine guns; and had no compunctions about using intimidation and violence to protect its business. Without prejudging the guilt or innocence of the defendants in the upcoming trial, the Court heard sufficient evidence in the first trial to be convinced that the above recitation accurately depicts the potential dangerousness of these defendants.
The Group I defendants were all convicted of conspiracy to violate federal narcotics laws, all but two of them were also convicted of various substantive federal narcotics law offenses; and Rayful Edmond, III was found guilty of conducting a continuing criminal enterprise, which carries a mandatory minimum term of life imprisonment without parole. Furthermore, although neither the first trial nor the upcoming trial directly involve any offenses of violence, murder charges are pending against several defendants, including one of the defendants in the upcoming trial.
When one considers the charges against the defendants in the upcoming trial in the context of the other offenses charged in this case and against the backdrop of the tightly-controlled, well-organized major cocaine distribution enterprise depicted in the first trial, it is clear that the offenses involved in the second trial are sufficiently serious to warrant the use of an anonymous jury. Compare Tutino, 883 F.2d at 1128 (conspiracy to distribute heroin and substantive distribution violations); Barnes, 604 F.2d at 130 (conspiracy to distribute heroin and cocaine and substantive distribution violations as well as engaging in continuing criminal enterprise).
Moreover, it by no means follows that security concerns in the upcoming trial have decreased substantially now that Rayful Edmond, III, the leader of the criminal enterprise, has been convicted. The defendants in the upcoming trial include several of Rayful Edmond, III's siblings and his mother. Because Rayful Edmond, III has experienced first-hand the strength of the government's evidence on the conspiracy charge, it is not unreasonable to be concerned that Edmond, through someone acting on his behalf, may take desperate steps to thwart the prosecution of his mother and siblings. In addition, the Court is not so naive as to think that Edmond's being incarcerated would prevent him from communicating with his many accomplices and supporters who have not been apprehended and threatening the safety of the jurors or their families. In light of the above, the Court is as convinced as it was before the first trial that "to sit back and wait would 'prove the adage of the futility of locking the barn door after the horse has escaped.'" Court's August 30, 1989 Memorandum Opinion at 1 (quoting Barnes, 604 F.2d at 137); see also Thomas, 757 F.2d at 1364 ("Justice requires that when a serious threat to juror safety reasonably is found to exist, precautionary measures must be taken.").
Another measure of the likelihood of the jury being influenced by violence or threats of violence is the presence of acts indicating an inclination to interfere with the judicial process. See Tutino, 883 F.2d at 1132-33; Thomas, 757 F.2d at 1364. The first trial was a veritable cornucopia of attempts to derail the prosecution and attack the integrity of the criminal justice system through improper extra-judicial conduct. A non-inclusive list of such activity follows.
After one of the government's main witnesses, Kathy Sellers, completed her direct testimony and while she was still subject to cross-examination, her mother's home was fire-bombed. Before trial, a potential government witness, Deborah Phillips, was found shot after the government mistakenly sent a letter explaining the terms of her expected cooperation to her house, where she resided with Emanuel Sutton, one of the defendants in the first trial. During the trial, the Court received a telephone call that there was a bomb in the courtroom. A member of the Court's staff was indirectly, if not directly, threatened by one of the defendants. At the close of the defense case, one of the defendants, John Monford, "made hand motions as to load a semi-automatic weapon, point in the direction of [the Court] and simulated firing the weapon twice." Statement of Special Agent John A. Cornille.
Another defendant, Melvin Butler, threatened James Mathis, an important government witness, as he was leaving the witness stand. Id. On October 16, 1989, during the direct testimony of James Minor, a cooperating witness, the Court observed several defendants glaring threateningly at him. Court's October 19, 1989 Opinion at 8. Several witnesses were so afraid of what could happen to them that they were very reluctant to testify for the government, and at least one witness, who had "valuable information" and was "a first-hand observer of the violence associated with the Edmond conspiracy," refused to testify out of "fear of retaliation against the witness's family." Declaration of Assistant United States Attorney Robert Andary.
Finally, a reliable confidential source has informed the FBI that "$ 30,000 was available to anyone who would kill Alta Rae Zanville," one of the government's key witnesses. Declaration of Special Agent Charles M. Anderson.
Furthermore, it appeared to the Court that the defendants were attempting, through the help of third parties, to discover the identities of the jurors in the first trial. About one month into trial, two defense counsel informed the Court that they had learned the identity of one of the jurors, and one of the attorneys refused to reveal his source on the grounds of attorney-client privilege. On many occasions, the Court and court personnel observed young men and women going in and out of the courtroom, communicating with the defendants by facial and body language, who responded in kind, and glaring at the jury. See Declaration of Court Security Officers Supervisor Richard A. Boyd.
In light of the foregoing, there is a substantial likelihood that, if the jurors in the upcoming trial were not anonymous, they would be subjected to improper extrajudicial conduct or contact.
In addition to protecting jurors and their families from violence or threats of violence, a second reason for utilizing an anonymous, sequestered jury in the upcoming trial is protecting the privacy rights of the jurors and their families. See Tutino, 883 F.2d at 1132; Persico, 832 F.2d at 717; Thomas, 757 F.2d at 1362-63. This case has received extensive publicity, both locally and nationally, in the print and electronic media. Local television and radio stations and local newspapers provided daily coverage of the first trial, and each day members of the media occupied about half of the courtroom. Moreover, after the jury returned its verdict in the first trial, Rayful Edmond, III was interviewed on both national and local television. Most of the defendants involved in this case have strong ties to the local community, and there is wide-spread public interest in this case. Under these circumstances, and keeping in mind that the upcoming trial will involve Rayful Edmond, III's mother and several of his siblings and will probably require the testimony of many of the same witnesses who testified in the first trial, it can be expected that the media will again provide extensive coverage once the trial begins.
Although the Court has great respect for the media, anonymity and sequestration measures will serve the additional purpose of ensuring that the jurors are not exposed to members of the media or to publicity about the trial.
II. Defendants' Arguments Against Anonymity
The Court has carefully considered the defendants' two-prong argument that an anonymous jury would deprive them of the ability to conduct a meaningful voir dire and intelligently exercise their peremptory challenges and would infringe upon their presumption of innocence. However, the Court agrees with the cases from the Second and Third Circuits that courts may utilize anonymous juries if they take certain precautions to protect these two significant interests.
While the closely-related rights to obtain information about prospective jurors through the voir dire process and to exercise peremptory challenges occupy an important position in our trial procedures, they are "not of constitutional dimension" and limitations thereof "need not be reviewed with the close scrutiny reserved for encroachments on the fundamental rights of an accused." Scarfo, 850 F.2d at 1021. Indeed, the trial court has substantial discretion in controlling and limiting the voir dire process. Id. at 1023; Barnes, 604 F.2d at 137; see also United States v. LaRouche, Jr., 896 F.2d 815, slip op. at 38 (4th Cir. 1990).
The law as to jury selection is not so unbending that it cannot, or should not, be accommodated to the realities of modern day trials in large narcotics cases which have created such problems for the courts in large cities. Clarence Darrow's ideal has already yielded to what has been thought to be the greater necessity, i.e., the need to streamline the voir dire process by resting the control of it in the district judge, see Fed.R.Crim. P. 24(a), subject to the demand that the essentials of the case should be the subject of inquiry. If that demand is satisfied, then so will have been the rights of the parties.
Barnes, 604 F.2d at 142-43 (emphasis added; footnote omitted).
The most important aspect of this voir dire /peremptory challenges issue is that, when a court takes appropriate measures, attorneys for both sides receive more material information about members of an anonymous jury than they do in ordinary trials in which jurors identify themselves by name and address. The Court uses the term "material" advisedly, because "[a] trial judge is required to permit at least some questioning with respect to any material issue that may actually or potentially arise during the trial." Tutino, 883 F.2d at 1133; see Barnes, 604 F.2d at 137-38 (discussing Aldridge v. United States, 283 U.S. 308, 75 L. Ed. 1054, 51 S. Ct. 470 (1931)). Under this Court's procedures, prospective jurors are told to sit down and answer the juror questionnaire in writing without consulting anyone.
These procedures give prospective jurors more opportunity for reflection and elicit more mature, accurate responses than attorneys ordinarily receive in normal criminal trials through the oral voir dire process covering the basic principles of law. Thus, these procedures together with the juror questionnaire enhance rather than diminish the defendants' rights to exercise their peremptory challenges and to be tried by a fair and impartial jury.
The only pieces of information about the prospective jurors that counsel will definitely not be able to obtain in the upcoming trial, as in the first trial, are: (1) their names; (2) their street addresses; and (3) their places of employment or business,
although counsel will know the kinds of employment that the prospective jurors and those close to them have had over the last ten years. The defendants have not made any showing that these three pieces of "off limits" information are material to any issue that may arise at trial. Through a very extensive, 23-page juror questionnaire, attorneys for both sides will acquire a wealth of demographic and other information.
See Scarfo, 850 F.2d at 1022 (written questionnaire submitted to prospective jurors encompassed broad range of personal demographics). In addition, all counsel will have the same opportunity as usual to view the demeanors of the prospective jurors and to uncover additional, more specific information relating to possible juror bias through meaningful voir dire consisting of questions on material issues that may arise at trial. In sum, on the voir dire and peremptory challenge issue, this Court arrives at the same conclusion as the district court in Scarfo : "counsel [will be] in a much better position to assess the suitability of prospective jurors in this case than in most other trials, criminal or civil." Id.
Finally, the Court disagrees with the defendants' argument that jury anonymity necessarily destroys their presumption of innocence. "The anonymity feature . . . is not intrinsically suggestive of any inference of guilt." Id. at 1026 (emphasis added). Indeed, those who have never served on juries before could assume, unless informed otherwise by the Court, that identification of jurors by number instead of by name is a standard practice in all criminal cases. See id. Furthermore, under certain circumstances, the presumption of innocence may be burdened to accommodate other important interests. "Although the presumption of innocence is of significant importance, and is protected by the due process clause of the Fifth Amendment, there is no per se rule that it may not be burdened." Thomas, 757 F.2d at 1364 (discussing accepted practice of not revealing names and personal information of potentially endangered witnesses); see Scarfo, 850 F.2d 1015 at 1024-25 (Supreme Court has, under certain circumstances, approved security measures such as having armed, uniformed State troopers present in courtroom during trial or shackling and gagging particularly disruptive defendants).
Instead, the Court agrees with the Second Circuit that it is not, and should not be, the law that jurors must publicly disclose their identities and publicly take responsibility for their verdict. Barnes, 604 F.2d at 140. To the contrary:
If a juror feels that he and his family may be subjected to violence or death at the hands of a defendant or his friends, how can his judgment be as free and impartial as the Constitution requires? If "the anonymous juror feels less pressure" as the result of anonymity, this is as it should be -- a factor contributing to his impartiality.
Id. at 140-41 (citation omitted). Even assuming arguendo that jurors would be influenced by their anonymity, "the defense's assumption that anti-defendant bias is the only possible, or even the most likely, reaction is suspect. Predicting juror responses to the anonymity practice is pure speculation." Scarfo, 850 F.2d at 1026. In the Court's view, anonymity is more likely to dispel jurors' apprehensions and therefore "serves the ideal of dispassionate judgment." Id.
The Court will, of course, also give the jurors in the upcoming trial the standard presumption of innocence instruction. Beyond a certain point, courts must simply trust that jurors will ...