Op-Ed: Martha Stewart And Jury Secrecy (New York Daily News)

By Christopher Dunn and Donna Lieberman — A federal court will hear an appeal today brought by media organizations suing to open up the jury selection process in the Martha Stewart case. The appeal is important in and of itself, but it has implications far beyond this one case. It’s a question of secrecy vs. the right to know.

Just before jury selection started last week, the judge overseeing the Stewart trial took the unusual step of barring the press from observing that process. Like an earlier order prohibiting the media from interviewing potential jurors or their family members, the jury selection order was issued without notice and thus without the press or public having any opportunity to object.

All the reporting on jury selection you may have seen is based on next-day transcripts of the proceedings. But that is unacceptable. Reading about a baseball game the next day is hardly the same as watching it live.

New York has been the site of many high-profile trials. In some unusual situations ­ for example, terrorist trials or organized crime cases ­ federal courts have restricted public and press access to the jury selection process to assure a fair trial or protect jurors from threats or tampering. When a court has concrete information suggesting the integrity of a trial requires some restrictions, they can be appropriate ­ indeed, necessary.

But that is not what is happening in the Stewart case. No one has suggested that jurors are at risk of being threatened or bribed. What is behind the jury selection secrecy order is little more than a concern by the court and prosecution and defense lawyers about the intense press and public scrutiny.

Extraordinary public interest in a criminal case is no reason to limit access. If anything, greater interest may call for special measures to improve public and media access.

Moreover, just because the government and a defendant want to exclude the press from jury selection is no reason to do so. The press and public have an independent constitutional right of access to court proceedings.

The appropriate response when there is concern about jurors being influenced by publicity is to order them not to read the papers or limit their exposure to prejudicial information.

We embark on a dangerous path, however, when public interest in a case becomes a justification for secrecy.

Dunn is the associate legal director and Lieberman the executive director of the New York Civil Liberties Union.