Judge can seal names of jurors, SJC rules

The Supreme Judicial Court ruled yesterday that a judge had the right to keep secret the names of jurors in a gang-related murder trial because of fear of reprisals from gang members.

In a unanimous decision, the high court said Bristol Superior Court Judge Gary A. Nickerson properly withheld the names and addresses of jurors from The Standard-Times of New Bedford after Manuel Silva was acquitted of murder in 2005, citing two shootings that occurred before and after the trial.

An unknown assailant fired four bullets into a car belonging to Silva's girlfriend, a key witness for the state, shortly before she testified, the court said. And someone sprayed gunfire at the defendant's mother's house in New Bedford two hours after the verdict, with one of the 11 bullets grazing a bystander.

"The safety of jurors is crucial to the functioning of the judicial system," Justice Judith A. Cowin wrote for the court in a ruling that a district attorney and the editor of the Standard-Times said may prompt the sealing of more jury lists. "While other key participants in a high-profile criminal trial involving dangerous offenders -- the prosecutor, the defense attorney, and the judge -- have all willingly accepted any attendant publicity and risks, the jurors have not," she wrote.

The ruling was described by several First Amendment lawyers as the first by a Massachusetts appellate court on the question of access to jurors' identities.

There has been rising concern for the safety of jurors in criminal cases involving street gangs. Last month, Boston police investigated an allegation that a juror in a gang-related murder case in Suffolk County was confronted by two men near his home.

Although Massachusetts has long recognized a common-law right of public access to judicial records, the high court said, a judge must balance that against other considerations. In the case of the Silva trial, one juror was so fearful she persuaded the judge to excuse her after it started, Cowin wrote.

The court said trial judges can keep jurors' names secret with good cause, a standard Massachusetts judges apply when sealing other sensitive judicial records, such as documents that reveal the identities of confidential informants or of juveniles.

Anthony C. Savastano, who represented the Standard-Times Publishing Co. in the appeal, criticized the decision and said the court accepted at face value unconfirmed police accounts that both shootings were linked to the trial of Silva, a reputed gang member from the Monte Park area of New Bedford.

Savastano said Nickerson should have held a hearing to determine whether the shootings were related to the case and sealed records only if he saw a "compelling government interest," which Savastano characterized as a higher standard than good cause.

He questioned Nickerson's concern for jurors' safety, saying the judge took no action until a Standard-Times reporter requested the names in hope of interviewing jurors after the verdict. The judge then sealed them, Savastano said.

"This was not a case where the judge was overly concerned with jurors' safety so he, on his own, impounded the jury list," he said.

A spokeswoman for Attorney General Martha Coakley's office, which represented the trial court in the appeal, said they had no immediate comment.

Suffolk District Attorney Daniel F. Conley said threats to jurors are rare but are of increasing concern in Boston, where gang members have used violence and intimidation to prevent witnesses from cooperating with authorities. He said the ruling will probably prompt his office to ask judges to impound more juror lists in gang-related trials.

Standard-Times editor Bob Unger acknowledged there are legitimate concerns about potential threats to jurors in the trial of Silva, who was accused of killing a South End rival three years earlier. Indeed, the reason the newspaper wanted to interview jurors was to find out whether fear of reprisals affected deliberations, he said.

Unger said his newspaper would not have published the names of jurors who requested anonymity before being interviewed.

"My fear is that as a result of the Supreme [Judicial] Court's ruling, now judges will be more inclined to guard jurors' identities from the public and the press in cases where perhaps guarding their identities is less essential for reasons of safety," Unger said. "It makes it awfully tough for the press to do its job and for the public to know what . . . is going on in their courtrooms."

But Joseph Steinfield, a First Amendment lawyer and adjunct professor at Boston College Law School, said the ruling struck him as sensible and might benefit the press, because it spells out the standard judges should use before sealing jury records.

"I see nothing to suggest that this is now going to be the rule, rather than the exception," he said.

Silva was charged with first-degree murder in the shooting of Ryan Aguiar, a member of a gang that Silva held responsible for his younger brother's slaying, according to a Standard-Times account of his acquittal.