Donald Campbell argues before the Nevada Supreme Court on Tuesday, Mar. 3, 2009, in Carson City, Nev. Justices raised repeated questions about the way in which a judge in the O.J. Simpson robbery-kidnapping trial first withheld jury questionnaires from the media and finally released censored versions. (AP Photo/Nevada Appeal, Cathleen Allison)
Nevada Supreme Court justices expressed doubts Tuesday about the way in which a judge in the O.J. Simpson robbery-kidnapping trial first withheld jury questionnaires from the media and then finally released censored versions.
The justices commented during high court arguments on a bid by The Associated Press and the Las Vegas Review-Journal for a ruling that Clark County District Judge Jackie Glass erred in delaying release of the documents and then redacting them, and in saying the matter was moot once the trial ended.
While a Supreme Court ruling will be issued at a later date, the justices' questions of a state lawyer representing Clark County District Judge Jackie Glass indicated their views of the case.
Chief Justice Jim Hardesty asked how a lawyer's question in open court about a juror's employer would be any different than such an inquiry on a juror questionnaire " which media lawyers said are public documents under numerous state and federal court rulings.
"You're not suggesting, are you, that that is a matter for which the court should close the courtroom, haul the juror back into the judge's chambers and listen to the answer in confidence?" he said to Jill Davis, the senior deputy attorney general representing Glass.
Justice Michael Douglas asked whether set standards should be followed in deciding how to handle jury questionnaires, and Justice Nancy Saitta followed up by saying, "I'm not convinced there have been findings and I'm not certain that those who were seeking access were given an opportunity to be heard."
Davis said the media wanted information about jurors that went beyond their names and which could have led juror intimidation. She said that should be avoided in order to ensure people are willing to serve on juries.
Davis added that the privacy concerns of potential jurors must be considered when balancing First Amendment rights of the press and public and Sixth Amendment rights to a fair trial.
Las Vegas attorney Don Campbell, representing the AP and Stephens Media LLC, owner of the Review-Journal, asked the high court to spell out the rights of the media and public because of the inevitability of such closure orders in future cases.
In Simpson's trial, "the goal posts were moved on us," Campbell said, describing how Glass changed her reasons for holding up release of the questionnaires and then finally releasing the redacted documents.
"You must have evidentiary findings indirectly supported by facts, not feelings, beliefs and superstitions, hunches or gut feelings. You have to demonstrate that they are compelling, not just that they are important," Campbell said, adding, "None of that occurred in this case."
Simpson, a former pro football star, actor and advertising pitchman, and co-defendant Clarence "C.J." Stewart were convicted Oct. 3 of 12 charges, including armed robbery and kidnapping, in a hotel room confrontation with two sports memorabilia dealers.
The convictions came 13 years to the day after the legendary Simpson was cleared in Los Angeles in the slaying of his ex-wife, Nicole Brown Simpson, and her friend Ron Goldman.
In Nevada's robbery-kidnap case, Simpson was sentenced in December to nine to 33 years in state prison. Stewart was sentenced to 7 1/2 to 27 years.
While judges normally are permitted to withhold jurors' personal information such as Social Security and driver's license numbers, Campbell and co-counsel Colby Williams said in briefs submitted in advance of Tuesday's hearing that Glass censored without explanation information such as where jurors were born and raised, their parents' occupations, whether they had children and whether they owned a home.
The attorneys say the U.S. Supreme Court has ruled that jury selection must be open, and that the questionnaires are extensions of in-court jury selection.
Glass at one point said she withheld the questionnaires because three offshore gambling Web sites had been taking bets on the trial's outcome and she feared someone would want to tamper with the jury. But Williams and Campbell said that justification wasn't supported by any evidence.
Davis said in her advance legal arguments that immediate access to the questionnaires wasn't warranted given the "extraordinary" pretrial publicity that made the case "the trial of the century." She said that in such a case a defendant's right to a fair trial takes precedence over rights of the press and public.