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E-Alert Case Updates

Washington Post Entitled to Obtain Completed Jury Questionnaires

In Re Access to Jury Questionnaires; The Washington Post, Appellant
Case No.: 10-SP-1612 (Court of Appeals for the District of Columbia, January 19, 2012)

by Eric M. Leppo, Associate
Semmes, Bowen & Semmes (

In this recently issued opinion from the Court of Appeals for the District of Columbia, the Court ruled that the trial court erred when it denied completely the Washington Post newspaper’s request to obtain completed jury questionnaires from a high-profile criminal trial.

This matter arose out of the highly publicized 2001 disappearance of Chandra Levy, a congressional intern, from Rock Creek Park. Almost a decade later, in October 2010, Ingmar Guandique stood trial in D.C. Superior Court for the murder of Chandra Levy. The trial was of significant public interest and therefore engendered a great deal of media attention. The public nature of the disappearance and trial forced the trial court and parties to devote considerable discussion to the process of selecting a fair and impartial jury. Furthermore, defense counsel was concerned about ensuring that prospective jurors could be impartial in light of unique issues including feelings on Latino ethnicity, illegal immigration, and knowledge of gang affiliation.

As a result, the trial court and parties decided to make use of written questionnaires in an effort to streamline the voir dire process. The questionnaire used consisted of fifty-five written questions seeking routine demographic information as well as information uniquely relevant to Guandique’s trial such as knowledge of Rock Creek Park, local gang activity, and views on illegal immigration. Once the sixteen (16) jurors were selected for service, the Washington Post filed a Motion to Intervene and sought access to the completed questionnaires for the seated jury.

The Washington Post’s motion argued that the public, including the media, was “presumptively entitled to contemporaneous access” to the jury selection process and there was no compelling reason for a “blanket refusal to disclose the questionnaires.” In Re Access at *5. The trial court judge, the Honorable Gerald Fisher, declined to produce them stating that the questionnaires indicated that they would be kept confidential by the Court, and that the usefulness of such questionnaires would diminish in the future if the Court allowed media access to them.

The Washington Post appealed the Superior Court’s decision to the District of Columbia Court of Appeals. The Appellate Court first noted that the case required decision despite the fact that the Washington Post could no longer obtain the jury questionnaires contemporaneously with the criminal proceedings. “The right of public access is ‘a right that any member of the public can assert,’ whether it is for the purpose of reporting on a trial as it unfolds or researching jury selection ten years later.” In Re Access at *8 (citing Mokhiber v. Davis, 537 A.2d 1100, 1105 (D.C. 1988)).

Thereafter, the Appellate Court agreed with the Washington Post that the public and media are presumptively entitled to obtain such information. The Appellate Court cited the public’s presumptive First Amendment right of access to criminal trials, and that such right of access includes the jury selection process. Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984). The Appellate Court found no basis for treating such written questionnaires that were clearly part of the voir dire process differently than oral questioning. Courts generally may not order blanket closure of such information. Rather, a trial court must first “articulate . . . with the requisite specificity” the “protectible privacy interests” at stake and then consider whether alternatives to complete closure are available to protect those privacy interests. Id.

Therefore, the matter was remanded to the D.C. Superior Court to formulate a remedy which included determining what specific information in the questionnaires could not be disclosed based on protected privacy interests, and then releasing the questionnaires to the public.