In trial of defendant members of a drug-trafficking organization
for "murder of certain government witnesses" as well as for
"numerous ... narcotics and firearms-related offenses," an
anonymous jury was appropriate for both capital and non-capital
defendants because "disclosure of identifying information about
the venire members may jeopardize their lives or safety," as
well as that the "'interests of justice'” are served by
anonymity, in United States v. Dinkins, __ F.3d __ (4th Cir.
Aug. 14, 2012) (Nos. 09-4668, 09-4669, 09-4755)
The Federal Evidence Review noted in May an increasing number of
circuits have begun to assess the use of anonymous juries. That
blog entry noted the Seventh Circuit's approach to empaneling an
anonymous jury, including the criteria to be used in reviewing
the propriety of trial by anonymous jury. Recently, the Fourth
Circuit weighed in on anonymous juries as well. Unlike the
Seventh Circuit case, the recent Fourth Circuit opinion examines
the various standards for use of such juries, distinguishing use
in capital and non-capital trials. The circuit suggests that
while almost all anonymous juries in capital cases will per se
satisfy requirements for use of such a jury in non-capital
cases, the reverse is not necessarily true.
In the case, several defendants, but not all, were charged with
capital crimes, in the murder of government witnesses. The basic
charge against all defendants involved various drug and weapons
charges, not subject to the possibility of a capital sentence.
After the district court trial ended, the defendants appealed
their convictions, basing one of their challenges on the use of
an anonymous jury in their trial. The Fourth Circuit readily
affirmed the use of an anonymous jury in the case, but in doing
so made a number of observations about the use of such juries.
Dinkins, __ F.3d at __.
The Fourth Circuit noted two general conditions to be considered
in deciding to use an anonymous jury. The first condition was a
determination that "there is strong reason to conclude that the
jury needs protection from interference or harm, or that the
integrity of the jury's function will be compromised absent
anonymity." The second, and apparently equally significant
factor was that the court have "reasonable safeguards ... to
minimize the risk that the rights of the accused will be
infringed." The circuit did not address whether these two
standards could come into conflict or how such a conflict might
be resolved. Dinkins, __ F.3d at __ (citing United States v.
Ross, 33 F.3d 1507 (11th Cir. 1994))
Ultimately, after considering five "Ross" factors that the
circuit noted had been generally applied by the circuits in
addressing the use of anonymous juries, the circuit concluded
that in the defendants' case there was sufficient evidence that
"disclosing names and addresses of venire members" of the jury
would jeopardize the panel's safety because the defendants all
were part of a drug-trafficking organization that had
demonstrated its willingness to prevent apprehension by killing
informants. The defendant who was being tried for a non-capital
offense also warranted use of an anonymous jury because even
that defendant had the capacity to harm jurors, and in fact was
on trial for killing a government informant. On the other side,
the defendants' right to a fair trial had been accommodated as
well. The trial judge made sure that the jurors were never
informed that certain biographic data about each member had been
withheld from parties and even the juror questionnaire used in
selecting jurors did not suggest the court had taken measures to
protect jurors from potential harm caused by defendants or their
associates. Dinkins, __ F.3d at __.
While Dinkins provides an extensive review of the current use of
anonymous juries, the case also includes many aspects that give
shape to the decisions that have been made about using anonymous
juries. For example, the Fourth Circuit pointed out that there
is no standard meaning as to exactly what an "anonymous jury" is
because:
The term ... does not have one fixed meaning. A jury generally
is considered to be "anonymous" when a trial court has withheld
certain biographical information about the jurors either from
the public, or the parties, or both. See United States v.
Branch, 91 F.3d 699, 723 (5th Cir. 1996). A lesser degree of
anonymity may entail disclosing to the parties the names of the
venire members, but identifying them only by number in open
court. Greater degrees of anonymity may involve withholding from
the parties the names, addresses, employers, and certain other
biographical information about the venire members or their
spouses. See United States v. Honken, 378 F. Supp. 2d 880,
919-21 (N.D. Iowa 2004). A district court’s decision to empanel
an anonymous jury should reflect the court’s consideration of
the various types of information that warrant being withheld.
A federal district court may empanel an anonymous jury in any
non-capital case in which "the interests of justice so require."
28 U.S.C. § 1863(b)(7); see also United States v. Ochoa-Vasquez,
428 F.3d 1015, 1033 n.24 (11th Cir. 2005) (citing Section
1863(b)(7) as statutory authority for decision to empanel an
anonymous jury, in a non-capital case); United States v.
Marrero-Ortiz, 160 F.3d 768, 776 (1st Cir. 1998) (same).
Although not defined in Section 1863(b)(7), the "interests of
justice" standard "contemplates a peculiarly context-specific
inquiry," Martel v. Clair,__ U.S. __ at __, 132 S. Ct. 1276,
1287 (2012). By contrast, in capital cases, the district court
may only empanel an anonymous jury after determining, "by a
preponderance of the evidence that providing the list [of the
members of the venire and their places of abode] may jeopardize
the life or safety of any person." 18 U.S.C. § 3432 (Section
3432).
We draw upon persuasive precedent from our sister circuits,
which already have developed principles guiding the empanelment
of anonymous juries, in our resolution of this context-specific
inquiry. The decision to empanel an anonymous jury and to
withhold from the parties biographical information about the
venire members is, in any case, "an unusual measure," which must
be plainly warranted by the particular situation presented. See
United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991).
Dinkins, __ F.3d at __ (citing United States v. Shryock, 342
F.3d 948, 971 (9th Cir. 2003) (use of anonymous jury is
justified only for a strong reason to conclude that the jury
needs protection from interference or harm, or that the
integrity of the jury’s function will be compromised if the jury
does not remain anonymous), cert. denied, 541 U.S. 965 (2004);
United States v. Vario, 943 F.2d 236, 239 (2d Cir. 1991)).
