When the Jury is Your Client: Defending the Use of an Anonymous Jury in the Malheur Occupation Trial

“Those Bundy jurors should be taken out and hanged.”

“Hoping that every #Oregonstandoff juror one day gets feces-filled trench dug in their front yard by disgruntled armed protesters.” 

“The interest of Justice require the Jurors be identified[,] tarred and feathered.”

On October 27, 2016, the jurors in the Malheur National Wildlife Refuge occupation trial found seven defendants not guilty.  The government had charged the defendants with Conspiracy to Impede Officers of the United States and other crimes stemming from their alleged participation in a 41-day “occupation” of the Refuge.   

The foregoing comments are examples of actual posts on social media after the jury returned a not guilty verdict in the first Malheur occupation trial.  In both that trial and a second completed in 2017, the Court ordered the parties and the lawyers to keep the identities of the jurors anonymous. 

After the first jury issued its verdict, however, Oregonian Publishing Company LLC, the Associated Press, and Oregon Public Broadcasting (“Interested Media”) moved the Court to (1) order the Court clerk to disclose the names of the jurors and (2) modify the protective order to permit the parties to disclose the names of the jurors. 

The Court appointed David Markowitz, Laura Salerno Owens, and Harry Wilson from Markowitz Herbold PC to represent, pro bono, the “collective interests” of the jurors, develop a factual record regarding the protective order, and respond to the Interested Media’s motion.  Ultimately, the Markowitz Herbold team developed a legal solution that protected the jurors’ privacy, while allowing the press to perform its important news-gathering function.  After the parties entered into a stipulation, the Court denied the Interested Media’s motion as moot and the jurors’ identities remained anonymous.

But the Interested Media’s motion raised an interesting question: when is it appropriate for a district court to use an anonymous jury?  Given the increasing power of social media users to harass and intimidate members of a jury, an obvious target in high-profile trials, the balance tips in favor of juror anonymity. 

I.                   Standards for using anonymous juries in the Ninth Circuit.

The Malheur occupation trial garnered intense media scrutiny.  But does extensive publicity alone justify the use of an anonymous jury in the Ninth Circuit?

The Ninth Circuit has established a two-part test to govern when a trial court can empanel an anonymous jury.  United States v. Shryock, 342 F.3d 948, 971 (9^th Cir. 2003).  An anonymous jury is appropriate “where (1) there is a strong reason for concluding that it is necessary to enable the jury to perform its fact-finding function, or to ensure juror protection; and (2) reasonable safeguards are adopted by the trial court to minimize any risk of infringement upon the fundamental rights of the accused.”  Id. (quoting United States v. DeLuca, 137 F.3d 24, 31 (1st Cir. 1998)).  The Court also has statutory authority to order an anonymous jury.  28 U.S.C. § 1863(b)(7) (district judge may “keep [juror] names confidential in any case where the interests of justice so require”).

To analyze whether the jury needs protection, the Ninth Circuit adopted five, nonexclusive factors for the trial court to consider: “(1) the defendants’ involvement with organized crime; (2) the defendants’ participation in a group with capacity to harm jurors; (3) the defendants’ past attempts to interfere with the judicial process or witnesses; (4) the potential that the defendant will suffer a lengthy incarceration if convicted; and (5) extensive publicity that could enhance the possibility that jurors’ names would become public and expose them to intimidation and harassment.”  Shryock 342 F.3d at 971 (citations omitted).  “These factors are neither exclusive nor dispositive, and the district court should make its decision based on the totality of the circumstances.”  Id. (citation omitted). 

II.                Intense media coverage can justify the use of anonymous juries.

The presence of the fifth factor, extensive media publicity, can alone justify the empaneling of an anonymous jury.  In United States v. Branch, 91 F.3d 699 (5th Cir. 1996), the Fifth Circuit affirmed a trial court order empanelling an anonymous jury in the Branch Davidian trial where the trial court’s primary finding was the “‘enormous amount of world-wide media attention.’”  Id. at 724 (quoting trial court).  The Fifth Circuit affirmed the district court even though there was no evidence that any juror had been directly threatened.  In another case, the Fifth Circuit affirmed a trial court order empaneling an anonymous jury where the “overriding concern, and the most important factor in the district court’s analysis, was the intense media interest and highly charged emotional and political fervor that surrounded the trial.”  United States v. Edwards, 303 F.3d 606, 614 (5th Cir. 2002).  Again, there was no evidence that any juror had already been threatened, harassed, or intimidated.  The mere prospect of such threats, harassment, or intimidation as a result of the extensive publicity was sufficient to warrant anonymity.  “The prospect of publicity militates in favor of jury anonymity to prevent exposure of the jurors to intimidation or harassment.”  United States v. Wong, 40 F.3d 1347, 1377 (2d Cir. 1994) (citation omitted).

III.             The need for anonymous juries can continue after the verdict is rendered.

The necessity of protecting the jury from harassment continues even after the jury issues its verdict.  “Ensuring that jurors are entitled to privacy and protection against harassment, even after their jury duty has ended, qualifies as” a strong governmental interest.  United States v. Brown, 250 F.3d 907, 918 (5th Cir. 2001) (citations omitted).  “The judge’s power to prevent harassment and protect juror privacy does not cease when the case ends.”  Id. at 918-19 (citations omitted); United States v. Bruno, 700 F.Supp.2d 175, 182-83 (N.D.N.Y. 2010) (“The conclusion of the trial does not remove the jurors’ interest in privacy and protection from harassment.”) (citation omitted).

Releasing the names of the jurors after the trial could also undermine the faith of the jurors in future trials that their anonymity will be protected.  As one court explained, “releasing the jurors’ names [post-verdict] would undermine the ability of judges in the future to use anonymous juries to ensure fair trials….It is not difficult to imagine a future juror reacting incredulously—perhaps with good reason—to a judge’s promise of anonymity if it becomes clear that it is merely a fleeting promise, revocable upon the conclusion of the trial.”  United States v. Calabrese, 515 F.Supp.2d 880, 885 (N.D. Ill. 2007).

IV.             The Malheur occupation trial engendered intense publicity.

The reaction in the press, online, and in the public to the not-guilty verdicts in the  Malheur occupation trial was intense and vitriolic.  Newspapers across the world, from Los Angeles to London, covered the story.  A Washington Post article suggested that the jurors’ verdict could embolden extremists and militias.  Online commenters called the jurors “insane,” “cowards,” “racist,” and “stupid.” 

Media coverage of the “occupation” and the Bundy case has been ongoing and intense.  According to an Associated Press poll of news editors, the Malheur occupation was overwhelmingly the top Oregon news story of 2016.  (Steven DuBois, Malheur Refuge Takeover Top Oregon Story of 2016, According to AP, Associated Press, Dec. 27, 2016)  The Oregonian and OPB alone published more than 1,000 pieces on the trial and the events preceding it.  OPB produced a nearly 9-hour, 12-episode podcast covering the Malheur occupation trial.  The trial and its verdict were international news.  The New York Times and The Washington Post ran front-page stories on the verdict.  (Courtney Sherwood & Kirk Johnson, U.S. Jury Acquits All Defendants in Refuge Siege, N.Y. Times, Oct. 28, 2016, at A1; Kevin Sullivan & Leah Sottile, Some fear Oregon verdicts will be license to intimidate, Wash. Post, Oct. 29, 2016, at A1.)  They were followed by newspapers across the country and around the world.  (See, e.g., Matt Pearce, For feds, Oregon case was to be a ‘slam dunk,’ L.A. Times, Oct. 29, 2016, at 10; Steven Dubois & Gillian Flaccus, Jury acquits leaders of 41-day standoff on federal land, Fort Lauderdale Sun Sentinel, Oct. 28, 2016, at 6; Sam Levin and Julia Carrie Wong, Oregon militia standoff trial: shock and anger after Bundys found not guilty, The Guardian, October 28, 2016; Oregon standoff leaders acquitted over armed protest, Al Jazeera, Oct. 28, 2016.)  Some coverage suggested that the jury’s verdict would have dangerous consequences.  The Washington Post, for instance, ran an online article asking whether the verdict would “embolden extremists, militias?”  (Fred Barbash, ‘Off the charts unbelievable’: Will acquittal of Oregon refuge occupiers embolden extremists, militias?, WashingtonPost.com, Oct. 28, 2016.) 

V.                Online commentators threatened violence against the jurors.

In the Malheur occupation trial, news of the verdict unleashed a wave of violent comments and posts threatening the jurors.  Examples include: 

“This miscarriage of justice needs to be visited on the Jurors…. If the system will not deal with the violent land abusers and their jury accomplices, then the Public has the right to take justice into their own hands.” (Online Comment to Maxine Bernstein, Transcript of Juror 4’s emails: His explanation for Ammon Bundy, The Oregonian/OregonLive, Nov. 3, 2016);

“I hope every single #oregonstandoff juror is victim to an armed militia taking their home away from them,” Twitter post;

“It sounds like a few jurors need to have their homes/property ‘occupied’ for a few days by a group of armed ‘citizens,’” (Online Comment to Reuters, All defendants in the Oregon standoff found not guilty, Oct. 27, 2016, on rawstory.com);

“Any jury member who voted to acquit should be forced to face these terrorists next time they start an armed uprising,” (Online Comment to Sarah K. Burris, ‘Sad day for America’: Internet furious about #OregonStandoff verdict vs. treatment of #BlackLivesMatter and #StandingRock, RawStory, Oct. 27, 2016);

“Imagine what would of happened if this was Chicago[.]  They’d be dropped walking out[.]” Facebook post.

VI.             An anonymous jury was appropriate in the Malheur occupation trial.

In the Malheur occupation trial, the factual record demonstrated a strong need to protect the jurors from threats of violence, harassment, and intimidation.  The Malheur occupation trial received extensive publicity and the jurors would have faced intimidation and harassment if their names were released. 

At the same time, the Markowitz Herbold team representing the jury recognized that the media had an important news-gathering function to perform and the jurors could offer a unique perspective on the trial.  To balance those interests, the Markowitz Herbold team proposed a compromise to the Interested Media and, after a brief negotiation, the jurors and Interested Media agreed to the following stipulation:

• Markowitz Herbold will forward the Interested Media’s requests for interviews to each of the jurors.
• Each of the jurors can decide for his or herself whether to agree to an interview and whether the interview will be anonymous.
• If a juror agrees to a non-anonymous interview, Markowitz Herbold will facilitate an exchange of contact information between the Interested Media and the juror.
• If a juror agrees to an anonymous interview, Markowitz Herbold will arrange for an anonymous exchange of questions and answers along terms mutually agreed to between the Interested Media and the juror.
• Markowitz Herbold will not release any of the jurors’ names or contact information without their express permission and none of the jurors are obligated to accept the request for interviews.
• The Interested Media will not file any additional motions in this matter seeking to learn the names of the jurors without first allowing Markowitz Herbold to again offer the jurors the Interested Media’s interview requests along the same terms described herein.
• As a result of this stipulation, the parties agree that the Court may deny the Interested Media’s motion as moot.

After the Court entered the stipulation, a few jurors agreed to anonymous interviews, but none of the unidentified jurors agreed to reveal their identities to the media.  In the end, the Markowitz Herbold team succeeded in protecting the identities of the jurors while allowing the press to perform its important news-gathering function.

VII.          Conclusion.

In today’s world of 24/7 media coverage and omnipresent social media, jurors in high-profile trials face more scrutiny than ever.  In some circumstances, a court can order the names of jurors remain anonymous to protect jurors from harassments, threats, and violence.  

Originally published in the Spring 2017 quarterly newsletter of the Oregon Chapter of the Federal Bar Association.