C.A. Says Need for Anonymity Must Be ‘Compelling’ for Identities to Be Shielded From Defense Lawyer, Disapproving Long-Time Practice at Los Angeles Superior Court’s San Fernando Courthouse
By a MetNews Staff Writer
The Court of Appeal for this district yesterday disapproved a general practice of some judges of the Los Angeles Superior Court’s San Fernando Courthouse in withholding from defense counsel in felony cases the names of prospective jurors, saying that nondisclosure should occur only where circumstances in the individual case call out for it.
Justice Gail Ruderman Feuer of Div. Seven wrote the opinion. While faulting the procedure that was used, her opinion affirms the conviction of Joe Lopez of murder and gross vehicular manslaughter while intoxicated, finding that the error was harmless beyond a reasonable doubt in light of “substantial information about prospective jurors” that was available to the defendant’s lawyer.
Feuer quoted Los Angeles Superior Court Judge Cynthia L. Ulfig, who presided in Lopez’s case, as telling the defense lawyer: “I don’t give out names because I have had attorneys googling, making improper contact with jurors,” adding:
“[M]ost of my colleagues in the building do not give out the names.”
Feuer related in a footnote that Ulfig sits in the San Fernando Valley Courthouse.
Reason for Policy
She recounted that Ulfig explained that the practice has been going on since about 2008 or 2009 when a defense lawyer was spotted at the counsel case looking up prospective jurors on the Internet.
“It is a generally accepted practice for trial courts to refer to jurors by their juror badge numbers during voir dire to protect the jurors’ privacy,” Feuer wrote. “Courts must be careful in utilizing this practice to make clear to jurors there is a reason for the procedure other than possible safety concerns relating to the defendant.”
The jurist continued:
“The trial court in this case adopted a general practice of not only identifying prospective jurors by their badge numbers, but also withholding from the attorneys the jurors’ names out of a concern the attorneys (or a member of the public or press) would obtain additional information about the jurors on the Internet or contact the jurors. In the absence of a compelling need specific to the case to conceal from the attorneys the names of prospective jurors, this was an abuse of discretion.”
Explanation to Jurors
Lopez complained on appeal that Ulfig told jurors of the reason for referring to them by number, saying:
“[W]e don’t mean any disrespect, this is to protect your privacy and your security. And that’s also why we have you wear the badges...throughout the building.”
Feuer said this was error “because jurors could speculate that Lopez posed a security risk.”
She went on to explain:
“[T]he trial court took no precautions to minimize the risk the jury would perceive Lopez was dangerous.…[F]ar from minimizing any risk Lopez posed to the jury, the court highlighted possible security concerns, although it did not specifically connect those concerns to Lopez.”
Ulfig mentioned, in explaining the policy, that a newspaper reporter had been in the courtroom the previous day taking notes. Feuer commented:
“The presence of a lone reporter in the courtroom does not constitute the type of ‘extensive publicity’ the federal courts have found supports juror anonymity.”
Feuer also referred to non-binding federal decisions in noting that in cases where the withholding of the names of prospective has been upheld, the potential length of the sentence has been listed as a factor. But in the present case, she said, that is the only factor that applies and it does not point to dangerousness on the part of Lopez who caused a death not through violence, but from intoxication.
Driving while drunk, he ran into a parked vehicle on the shoulder of Highway 14, killing the occupant.
“Depriving a defendant of the names of prospective jurors based simply on the length of the potential sentence in the absence of other risk factors, as the trial court did here, would mean all defendants charged with murder would be tried by an anonymous jury because they would always face a mandatory life sentence,” Feuer said.
She also wrote:
“The trial court also improperly relied on its general policy to use anonymous juries (after consulting with other judges in the building) based on the ease with which attorneys could use social media to learn additional information about jurors and potentially contact them, and the fact 10 years earlier a defense attorney had researched prospective jurors on the Internet. These concerns are not based on the actual risk to prospective jurors in a specific case….
“Further, as Lopez points out, the court could have addressed its concern about attorneys using social media to obtain additional information about jurors and contact them by admonishing the attorneys, who are officers of the court, to avoid any contact with the jurors (and avoid invasive research) and, as defense counsel noted was the practice in other courts, by requiring the attorneys to leave the juror lists in the courtroom.”
That’s the procedure used at the Airport Courthouse. Los Angeles Superior Court Judge Lauren Weis Birnstein, who sits there, said yesterday:
“It is my practice and that of other judges in this courthouse, I believe, to give the jury sheets with jurors names to the attorneys during voir dire and then collect the sheets at the end of each day.”
Another judge who presides over criminal cases, at a different courthouse, remarked:
“Absent a compelling reason to preserve the anonymity of jurors, a decision made on a case by case basis, I cannot think of a reason for this as general practice.
“In all jury criminal jury trials that I am aware of, attorneys are given a list of prospective jurors with their name, juror number, and number of days with pay for jury service. There is a general admonition not to refer to jurors by their names, only by number.”
The case is People v. Lopez, 2021 S.O.S. 2549.
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