3.17 Sunshine

3.16 Not Fair

Book Three / 17

The first morning had gone well.  The attorneys had questioned all six prospective jurors, and the judge had made his rulings.  I headed back to the jury room to let the group know we were done.  I’d release them in a moment, after telling each of them whether they had been excused from further service or retained for the final round in December.  

One of the prospective jurors was a woman in her fifties, professionally dressed with a stolid disposition.  She asked what would happen with the questionnaire she’d filled out at orientation.  I told her that all of the questionnaires had been filed, and they would remain open as part of the public record.  

Upon hearing my response the woman became visibly upset.  She began listing aloud the people she would contact in protest when she left court that afternoon, including writing to the judge.  I encouraged her to communicate her concerns, and referred her to our court administration as well as to the State Supreme Court, whose role it was to interpret the constitution and define the concept of open courts.  

At no time had the judge or any court staff ever suggested to jurors that the questionnaire was confidential.  In fact, the questionnaire contained language explicitly notifying everyone who filled one out that it was not.  But this woman said she’d been deceived.  I explained briefly the requirement of open courts under the state’s constitution, and thanked her again for her understanding and for her service.  She left the courtroom in anger.


The file for Mackey’s aggravated murder case, as with every criminal case, contained each document involved in the public prosecution and trial of the matter, going back nearly seven years since the day of his arrest.  Among the hundreds of lengthy documents were all of the questionnaires we’d taken from the prospective jurors in September.  None of them contained private identifiers beyond the juror’s name.  The information was general.  But the public, including the media, had a right to view the questionnaires as a component of the state’s open courts.

The guarantee of open courts under the state’s constitution requires that courts be open to the public, including the media, for all proceedings.  The definition of ‘open’ changes periodically as the Supreme Court rules on challenges to the doctrine, but it has always included records and hearings of criminal proceedings, with just a few exceptions meant to protect other constitutional rights of the parties, or the broader integrity of the process. 

Open courts are one of the most important guarantees of fairness in the system.  They discourage corruption and the exercise of bias.  They enable individuals to assure themselves that they and their loved ones are treated fairly.  And they allow the media to observe the institution and keep the public informed.  With open courts we witness how our criminal laws are applied and how public officials engage in their office.  

The importance of open courts increases in proportion to the severity of the penalties available in a case, and death is the most severe penalty a state may impose.  Every process and stage of its implementation must be transparent.  

This is especially the case in jury selection when a court’s decisions determine the exact individuals who will be charged with deciding not only an individual’s guilt or innocence, but also whether he deserves to die.  The public and press must be able to see who will decide whether a citizen will be put to death by the state in their names and through the apparatus of their government.  

In the bigger picture, through many different death penalty trials over time, the process of jury selection can be observed and compared, and we learn from that analysis how it can be improved if we intend for it to be retained.  

3.18 Attack and Parry