According to the 11th Circuit in the Fabio Ochoa case, the first reported use of an anonymous jury was in the 1977 trial of Harlem drug kingpin Nicky Barnes in New York. (U.S. v. Barnes, 604 F.2d 121 (2d Cir. 1979). Since then, the court said they have become much more common in both state and federal courts, to prevent jury tampering, reduce risks to juror safety and limit media influence on jurors. Still, it is considered a "drastic measure" that implicates a defendant’s constitutional right to the presumption of innocence by suggesting the defendant is a dangerous person from whom the jurors must be protected. For that reason, the jury should be given an plausible explanation for why their names and personal information are being shielded. Examples: Jurors have been told that anonymity was to prevent unwanted press attention, to allow them to consider the case
without apprehension and to assure them that both defendant and the government receive a fair trial.
The federal courts in the 11th Circuit (which includes Florida) have a pattern instruction that explains that anonymity "will serve to discourage inquiries from those seeking information and otherwise preserve your privacy ...against unwanted and unsolicited publicity, telephone calls, letters, questions, and the like.")
O'Mara is careful to request that the names and personal information not be withheld from the state and defense team. This is because if after the trial, it turns out a juror lied about their background, the defense might be held to have had an obligation to conduct background checks on prospective jurors. These checks can be done in real-time in the courtroom. Or, where an advance jury questionnaire is used, ahead of time. What can the lawyers check in real-time? They can use Westlaw or Lexis to check credit ratings, criminal records, and other personal information. They will check social media sites like Twitter and Facebook to get insight on potential jurors.
Another reason these checks are necessary are to protect against "stealth jurors" who will lie to get on the case, particularly to profit from it afterwards. Just last week, the judge in the Florida case of Palm Beach millionaire polo mogul John Goodman tossed his DUI manslaughter conviction and 16 year sentence because a juror failed to disclose his ex-wife had a recent DUI charge. (He later attributed the charge to contributing to the demise of the marriage.)The juror also conducted drinking experiments and self-published three books on the trial on Amazon including this information. It was the most highly publicized trial in recent Palm Beach history. (Kudos to his lawyer Roy Black for getting the conviction reversed on the motion for new trial in the trial court, and keeping his client out on bail during post-trial proceedings.) The scathing order is here.
The juror, a 69 year old retired accountant, claimed his wife's DUI arrest just slipped his mind. He's now on trial for contempt of court. O'Mara included a news clip about the case in his motion.
O'Mara's motion heavily relies on the constant prejudicial media barrage fostered by the Martin family lawyers, joined in by public figures.
He's also asking that the prospective jury panel be sequestered during voir dire. He has previously said he expects jury selection to take at least two weeks.
In related news, the state filed a motion to continue to depose Shellie Zimmerman. The motion is available here. Her lawyer intervened during her initial deposition and asserted her fifth amendment privilege. He also said she had not been endorsed as a witness, with which O'Mara and Don West agreed. The state claims O'Mara did endorse her (it refers to his witness list, where she does not appear as a named witness) and even if he didn't, it has a right under another statute to depose her.
How is it possible that the defense says it did not list her and the state says it did? The state says it listed her as a potential witness, after which the defense filed a witness list that included (the standard refrain) that it reserves the right to call “any witness identified through State’s discovery not otherwise disclosed herein”. I'm no expert on Florida deposition rules (Florida is one of the few states that allow pre-trial depositions in criminal cases) but I think it's an incredible stretch to claim the defense, by reserving its right to call a witness named by the state (whom the state could decide not to call) is a listed defense witness.
Nor does the state explain why Shellie Zimmerman, who is separately charged with perjury from her statements at George's initial bond hearing, would not have a 5th Amendment right to refuse to testify at a deposition even if the state did have the right to seek her deposition. It's not necessary that the state ask her questions about the perjury case for her privilege to apply. It's enough if her answers to any questions posed at the deposition could be used against her in the perjury case, or potentially expose her to a new and different charge. My opinion: State fail on this one. I just wonder why Shellie's lawyer initially agreed to the deposition and didn't invoke her 5th Amendment rights at the outset. Had he refused to make her available citing her 5th Amendment rights, the state would have had to issue a subpoena and he could then have filed a motion to quash.
