updated 1/23/2004 4:12:38 PM ET 2004-01-23T21:12:38

The judge's made an unusual ruling in the Martha Stewart case to keep the press and public out of the courtroom during the questioning of prospective jurors. 

One might expect that I would chastise the judge, as I often do, when judges unnecessarily impose gag orders, seal public documents, or don't allow a camera in the courtroom.

No, not this time.  To me, jury issues are different.  The lawyers need to try to find out as much as possible about who they are and how they think.  Remember, jury deliberation is closed to everyone and no member of the press is allowed to even speak to jurors during trials.  And so, in certain rare circumstances, it‘s not a major infringement to exclude the public from the selection process, as long as the judge limits the restrictions here by releasing transcripts the next day. 

Now, while the ruling makes sense, much of the judge's reasoning does not.  Judge Miriam Goldman Cedarbaum ruled that there is a  “substantial likelihood that some members of the press may disclose the names of prospective or selected jurors”  And that she ruled might lead jurors not to give  “full and frank answers.” 

That's not the point.  In many cases, judges insist everyone in court only refer to jurors by their number, not their names.  The real problem is that when prospective jurors are sitting in a packed courtroom of reporters who are watching their every answer, it may make it more difficult to get people to admit sometimes embarrassing details about their lives or their opinions about the defendant. 

Yes, some of those issues could be taken up at private bench conferences, but that can become burdensome when you‘re constantly switching from bench conferences back to open court again and again, getting forthcoming answers can be difficult. 

There is a First Amendment interest in having the media present during jury selection.  It is an essential part of a trial.  Trials should be open. 

But when it comes to jurors and jurors only, there are times like this one, where as long as the judge allows information to get out quickly, that interest may be outweighed by the need to find a fair and impartial jury. 

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