Wednesday, January 24, 2018

U.S. Prosecutors want anonymous, sequestered jury, in El Chapo Case

Chivis Martinez for Borderland Beat
Anonymous or innominate jury is atypical but is sometimes requested in high profile cases. If a court grants the request, it will order jury members kept anonymous. Either the defense or prosecution can request an anonymous jury, for such reasons as to protect jury members from jury tampering, the media or a serious threat of juror’s safety.  Or to protect the jury process itself.
There can be concerns for jurors after an unfavorable verdict.   As in the O.J. Simpson trial.  Or that of a young Florida mother, Casey Anthony, accused of murdering her toddler daughter. The backlash was severe over the not guilty verdict; one juror left Florida because of it.

Jury sequestration is rare. A judge may order a jury sequestered to prevent interference by publicity, media reporting or even social media compromising objectivity. Or tampering.

In the case of Joaquín “El Chapo” Guzmán, the prosecution has requested both, an anonymous, sequestered jury. 

The Prosecution 

The following arguments are made by prosecutors:

  • The Seriousness of the Charges Against the Defendant Weigh in Favor of an Anonymous and Partially Sequestered Jury
  • The Defendant’s Past Interference With and Present Means to Interfere with the Judicial Process Support Anonymity and Partial Sequestration
  • Extensive Press Coverage Justifies an Anonymous and Partially Sequestered Jury.

From the statement of the government in support  of anonymous, sequestered jury;

“The government respectfully submits this memorandum of law in support of its motion for a jury that is anonymous (i.e. the names, addresses, and specific places of employment of the venire and the jury will not be revealed to the parties and the press) and partially sequestered (i.e. the jury will be transported to and from the courthouse by the U.S. Marshals Service (“USMS”) each trial day and will be sequestered from the public while in the courthouse during each trial day). These limited measures are necessary to protect the integrity of the trial and the jury’s impartiality by preventing harassment, intimidation, or other interference with the jurors — and, just as importantly, by mitigating any fear in the minds of the jurors of any such harassment, intimidation, or other interference. As the Court is aware from previous filings, this case involves exceptionally serious charges; the defendant has a history of interference with the judicial process (e.g. two dramatic prison escapes; history of employing “sicarios,” or hitmen, against potential witnesses); the defendant has the means to interfere with the judicial process; and this case has drawn intense media scrutiny.”
 The Defense

 "In the defense opposition motion sent Tuesday, defense attorney Eduardo Balarezo argued that presenting Guzmán as a dangerous subject, such as having the jury being anonymous and sequestered, and the heavily armed escort, sets in motion a possible presumption from jurors that would affect his presumption of innocence.

Balarezo's proposed that Judge Brian Cogan select a jury that would remain anonymous to both Guzmán and his defense and the jury be only inaccessible to Guzmán and the media, and he would be in agreement to Judge Cogan issuing an order prohibiting contact with them.

Balarezo argues:

The government claims that Mr. Guzmán’s “history of interference with the judicial process,” “means to harm the jury,” and the “widespread media coverage” surrounding this case are reasons for this Court to grant its Motion. Such an order would unduly burden Mr. Guzmán’s presumption of innocence, impair his ability to conduct meaningful voir dire and create the extremely unfair impression that he is a dangerous person from whom the jury must be protected."

Balarezo continues
The facts and circumstances of this case do not present “strong reason to believe the jury needs protection” and, therefore, the motion must be denied.
"From the outset, the government has been determined to gain advantage by sensationalizing this case. The centerpiece of this case is a more than 25-year long “continuing criminal enterprise” and a narcotics conspiracy as charged in the fourth superseding indictment filed in 2016. The government argues that Mr. Guzmán is the “principal leader of the Mexico based international drug trafficking organization known as the Sinaloa Cartel, one of the world’s largest and most prolific drug trafficking organizations.” Gov. Mot. at 2. Notwithstanding the thousands of pieces of discovery produced by the government, the principal source of “evidence” against Mr. Guzmán will be numerous cooperating witnesses who will testify at trial in exchange for reduced prison sentences. The government relies on those same witness to justify the empanelment of an anonymous and partially sequestered jury.
Empaneling an anonymous jury in this case would unfairly burden Mr. Guzmán’s presumption of innocence and should be rejected in favor of less extreme measures to protect the privacy of jurors. An anonymous jury – especially one that would be permitted to function only under armed guard – would poison the atmosphere of the case and serve to bolster the government’s proof by creating the impression that Mr. Guzmán is guilty and dangerous. In a case in which the government alleges that Mr. Guzmán committed acts of violence, juror anonymity sends the message to each juror that he or she needs to be protected from Mr. Guzmán. From there, members of the jury could infer that Mr. Guzmán is both dangerous and guilty. Granting the government’s Motion would deny Mr. Guzmán the fair trial guaranteed by the United States Constitution."
A. An anonymous jury may not be empaneled in the absence of “strong reason to believe the jury needs protection,” because empaneling an anonymous jury burdens the presumption of innocence and impairs Mr. Guzmán’s ability to conduct meaningful voir dire.
"It cannot be the case that simply saying that Mr. Guzmán is charged with a “pattern of violent activity” warrants empanelment of an anonymous jury. If every federal trial in which the government alleged gang and/or narcotics related murders warranted an anonymous jury, such proceedings would become the rule rather than the exception. Instead, as the cases require, the “something more” which must be proven, must always involve proof of a credible threat that Mr. Guzmán is likely to attempt to interfere with the jury itself."

Guzmán has been barred from meeting with the press, having visitors with the exception of three visits from his young twin daughters,  no phone calls with the exception of two monitored fifteen minutes phone calls per month from his mother and sister.  He has been barred from private meetings with his attorney. 

His trial is now scheduled sometime in September.