Anonymous juries aren't part of the American tradition; Traficant shouldn't face one
Americans should be very careful about letting an air of secrecy envelop their court system.
Much has been written about this concept in recent weeks as a wary nation contemplates how it should handle the cases of suspected terrorists or accused traitors.
But our concern today has nothing to do with how the legal system should deal with terrorist attacks in New York, Al-Qaida cells at home or abroad, or California boys who went off to Afghanistan.
Look to Cleveland: We're wondering what a judge in Cleveland is going to do about a request by prosecuting attorneys in the James A. Traficant Jr. case. The prosecutors want U.S. Rep. Traficant to be tried on charges of racketeering, bribery and tax evasion.by an anonymous jury.
We're hoping that U.S. District Court Judge Lesley Brooks Wells tells the prosecutors that they've overreached this time.
It's one thing for prosecutors to protect the identities of jurors in the trial of a mobster like Lennie Strollo, a man who commissioned hits on his enemies, but Jim Traficant has no history of violence that the prosecution can cite. Certainly he's full of bluster -- well honed in his famous one-minute speeches on the floor of Congress -- and maybe he's stared down a lawyer in the past or turned a rookie judge's knees to Jell-O. But that was then, this is now.
We have cautioned prosecutors and the judge not to take Traficant lightly. He will play the system for all it is worth. In his 1983 trial, acting as his own lawyer, he managed to insert direct testimony in the record without ever being subject to cross-examination. He used vulgarity and profanity in the courtroom to advantageous effect. He was a bull in the federal court's china shop.
Judge Wells has already indicated that Traficant is not going to get away with such shenanigans this time. And that's good.
On the other hand, prosecutor should have to play by the book, too. We believe Traficant has a right to look the person who is going to judge him in the eye during jury selection and address his questions to Mr. Smith or Mrs. Jones -- not Potential Juror No. 3 or Prospective Juror No. 13.
And that may be something the prosecutors are worried about, because Traficant has an uncanny ability to connect with people, one-to-one. Prosecutors may be concerned that Traficant will charm one or more of the jurors, making it that much more difficult to get a unanimous verdict.
But it is the prosecutors' job to overcome such hurdles by the strength of their evidence.
The prosecution has had subpoena powers, surveillance, the ability to make deals with potential witness, millions of dollars to spend and years to build a case.
For them to now say they need to fundamentally alter the dynamic of a jury trial by building a panel of anonymous jurors subverts the system.
Doing what's fair: It's not fair to Traficant and its not fair to the public. Traficant is not just another defendant. He is a United States congressman, elected by a majority of the voters in the 17th District. Those voters have a right to know who is sitting in judgment on the man they've sent to Washington nine times.
A public trial by a jury of one's peers is the fundamental right of every citizen of the United States. If any aspect of a trial is to be closed to the public, the prosecution or the defense should have to make a strongly persuasive argument for doing so.
In 1997, a proposal to keep the names and other identifying specifics about jurors secret in criminal trials came before the U.S. Senate Judiciary Committee. The committee wisely declined to vote the bill out of committee. It received two votes, with five needed. Even the fact that it was brought up in committee is disturbing, given 200 years of openness, but at least the committee recognized the value of maintaining an open system.
The first case in the United States to allow a fully anonymous jury didn't come before a court until 1979. In the relatively short time since then, it has become increasingly common for prosecutors to seek secrecy. It has become one of the slipperiest slopes in American jurisprudence.
Duty calls: We suspect that most jurors would prefer anonymity, but jury duty comes with certain inconveniences. Almost all "duty" carries with it some discomfort.
In the long run, however, our system of justice requires a degree of transparency if it is to retain its credibility.
The last time the federal government had Traficant in its sights, prosecutors were so cocky that they allowed a Mahoning Valley politician to stay on the jury that was going to decide the fate of the man who was then the area's preeminent politician. That was stupid.
This time the prosecutors are running the risk of overreacting in a way that makes them look like they're scared.
We have one recommendation for the judge and a piece of advice for the prosecutors.
Judge Wells: Reject this attempt by prosecutors to close what should be an open process.
Prosecutors: Don't ever let Traficant see fear in your eyes.