ALBERT GREENWOOD BROWN, a black man, was tried and convicted by a California jury of the rape and murder of a white teen-ager and sentenced to death. In 1984, the Supreme Court unanimously reversed his conviction on the grounds that the jury had been chosen in proceedings that were closed to the public. The trial judge had closed these proceedings -- known as voir dire -- because of the possibility that personal questions might be asked of prospective jurors concerning both race prejudice and rape and that the public had no right to hear the answers. But the Supreme Court held that the voir dire is part of the criminal trial, which must be public, and that the "presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest."
This week, this newspaper and other media petitioners moved in federal court to open the voir dire proceedings in Michael Deaver's perjury trial. U.S. District Court Judge Thomas Penfield Jackson had agreed to allow jurors to be chosen in meetings that were conducted in private. Because it is expected that Mr. Deaver will cite his alcohol and prescription drug use in his defense, questions about individual juror's use of these substances might come up. Judge Jackson's ruling was summarily reversed by a three-judge panel of the Court of Appeals, and because additional appeals are planned, the trial has been postponed until October.
Does this mean that jurors -- innocent citizens doing their civic duty -- are obliged to talk about all sorts of private matters in open court? It does not, but rules set out by the Supreme Court in the 1984 case establish three conditions for conducting any of the proceedings in private. First, the trial court must make a finding that an open voir dire proceeding threatens either the defendant's Sixth Amendment right to a fair trial or a prospective juror's privacy interests. Second, prospective jurors must make affirmative requests for a private examination. Finally, the trial court must consider alternatives to closure that will adequately protect the interests of the jurors. None of this had been done at the Deaver trial. When the proceedings are eventually resumed, there will be a presumption that all jurors will be questioned in open court, but the problems of individual jurors certainly can be handled within the framework of the Supreme Court's guidelines.
The press, of course, has an interest in seeking to protect the open nature of any government proceeding. But the guarantees surrounding public trials were firmly set long before the modern age of newspapers and television, and they were designed for the benefit of the citizenry at large. Before the Norman Conquest in England, entire towns were called out to witness and render judgment at criminal trials. By the middle of the 16th century, selected jurors were chosen in public. And in pre-revolutionary America the public selection of jurors was common. All this is done not simply to ensure fair trial but to reinforce public confidence in the criminal justice system. The selection of impartial jurors in open court is an integral part of the trial and an important sign that the trial will be fairly conducted and that justice will be done