The U.S. Supreme Court has ruled that virtually all phases of courtroom trials must be conducted publicly, but in three recent or current Utah murder trials, the jury-selection process has been taken out of open court — a move that has limited access by the public.
Explaining the move to shield the jury selection process from an open courtroom, judges say potential jurors are more apt to divulge personal biases in a more relaxed atmosphere with fewer people present.
But an attorney representing news-media interests and another judge say moving the process out of open court is not necessary to seat an impartial jury and can compromise the integrity of the judicial process.
In the 2nd District Court murder trial of Paul Allen this spring, about 90 potential jurors answered 212 questions on a printed questionnaire. Then defense and prosecution attorneys interviewed each potential juror in the jury room, out of earshot of others on the jury list.
Allen was convicted of murdering his wife, Jill, who was beaten to death in her home in a murder-for-hire scheme.
Judge Glen R. Dawson said attorneys for both the prosecution and defense requested interviews be conducted in the less-formal atmosphere of the jury room to encourage candid answers to questions that might involve personal biases or personal experiences and to prevent other potential jurors from being influenced by answers.
The judge said a court reporter recorded the interviews and the record was available to public and press. He also said he specifically decided not to exclude members of the press or the public from the actual interviews and told court personnel to admit press and public into the room.
However, Deseret News reporter Derek Jensen, who covered the Allen trial, said he was prevented by the court bailiff from going into the jury room during the interviews.
Dawson said that, if reporters were not allowed in, it was because of miscommunication.
Jury selections in two current murder trials — that of Robert Allen Weitzel in 2nd District Court in Davis County and John R. Pinder in 4th District Court in Heber City — were not held in open court.
Weitzel, a psychiatrist, is accused of ordering lethal doses of morphine to kill five elderly patients at a Davis County hospital. Judge Thomas Kay said the Weitzel jurors were selected after they filled out a questionnaire and answered questions in individual interviews.
He echoed Dawson, saying he believes potential jurors are more candid in front of fewer people.
Kay said all news media were notified of the way the jurors would be questioned, and reporters were told they could attend, but "only one took advantage" of the offer.
However, the decorum order issued to media representatives before the trial states that the jury-selection process would be open following the issuing of a number for each juror to be used instead of the name to ensure privacy. But it also states that, "as a practical matter," there would not be space in the deliberation room for members of the press.
In the third trial, Pinder is accused of killing two ranch hands and blowing up their bodies in Duchesne County. Jurors were questioned in the jury-deliberation room.
Media attorney Jeff Hunt said that while the selection process is "not technically closed," questioning potential jurors individually out of open court is "very unusual."
Hunt said defense attorney Ron Yengich asked that jury selection be closed, and 4th District Court Judge Lynn W. Davis initially ruled only one reporter would be allowed in chambers but then changed his mind and said as many public observers and the media as could be seated would be allowed. And he moved the interviews from chambers to the larger jury room.
Hunt countered the judges' rationale for moving jury selection out of the courtroom, where it is traditionally held in full view of public and all media representatives.
He said if it were true that potential jurors are more candid in the smaller setting "it would be done in every trial, but we just don't do that."
"The law is crystal clear on how it's supposed to be conducted," Hunt said. "Jurors are asked questions in the open. The judge tells them that if the question calls for an answer they feel would be too personal to confide publicly, the juror can request that the answer be given in chambers with just the judge and lawyers present."
Second District Court Judge Pamela Heffernan, who presided over the capital murder trial of Jorge Garcia in Ogden in 1998, says she felt in that case she was able to keep jury selection open and maintain jurors' privacy by assigning a number to each juror, so names were never used.
"We did it in open court, with potential jurors on the witness stand but individually, so other jurors didn't hear the answers," Heffernan said.
She said she anticipated some jurors having problems with that because the case was so emotional, but no problems occurred. Garcia was accused of raping and murdering a 7-year-old girl.
"I believe they answered as openly as if we had interviewed them in chambers," Heffernan said. "I saw no advantage in doing it in chambers."
Hunt said jury selection is an important part of the trial process.
"The public needs to have confidence that the process has integrity, and they can't have that confidence if it's done behind closed doors," he said.
"We expect jurors to be truthful; they're sworn in before questioning, and I don't know why we would expect them not to follow their oath. We're not giving them enough credit."
He said the recent move away from open-court questioning of potential jurors is "disturbing," though it doesn't mean the process wasn't conducted in a scrupulously fair manner. But every effort should be made to be as open as possible, he said.
Carvel Harward, chief deputy attorney in Davis County, who was involved in prosecuting the Allen case, said he believes the trend is toward more openness over the past 20 years, and he said Utah courts are more open to the media than courts in other states.
"It used to be much easier to close a preliminary hearing than it is now," Harward said. "If there's any tilt, it's more in favor of the press."