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Let the Freddie Gray jurors speak

Based on last week's reporting from The Sun, Marylanders now know that Baltimore Circuit Court Judge Barry Williams strongly suggested to jurors in the trial of William Porter, one of six city police officers charged in connection with the death of Freddie Gray, that they not speak publicly about the case after its conclusion. While the judge is admirably trying to balance the interests of a fair trial with free speech rights, he appears to have gone too far.

One juror was quoted by Sun reporters as saying "I would very much like to talk about my experience as a juror," but she feels obligated to follow the judge's suggestion to abstain. She need not feel so compelled.

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As a magistrate, I've presided over hundreds of criminal cases. I know the burden of trying to be fair to all sides while keeping an eye on the often-complicated rules of evidence and criminal procedure. It's a daunting challenge. And, given that there are more trials of Baltimore police officers coming, a responsible jurist must make rulings that will protect the ability of prosecutors and defense attorneys to empanel juries who can review these cases fairly.

But, even with those factors in mind, there's little or no chance that allowing the Porter case jurors to speak publicly will bias future trials.

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Many members of the public know more about what happened during the trial than the jury, given that jurors were barred from reading news coverage. Their commentary may provide insight into what happened in the jury room, but it can't offer new evidence that could taint future trials. Jurors only considered evidence that was first reviewed and permitted by the judge.

If jurors were to share their thoughts of that admitted evidence, the revelation might be interesting, but it still wouldn't affect the ability of future juries to bring an open mind to the trials of the remaining officers since the evidence the jury weighed was already in the press.

Yet the merits of allowing jurors to speak publicly go far beyond the fact that it won't hinder the work of future juries. It's a matter of constitutional law.

Courts have often ruled that a judge may protect jurors from press harassment and limit or even bar reporters from contacting them after a trial. If that were the extent of Judge Williams' order, it would likely withstand constitutional review. The judge also probably has the ability to protect the jurors' identities from public release. And in a few states (not Maryland), jurors can't be paid to write a book for at least 90 days after being dismissed.

However, if jury members want to speak out, be interviewed or even blog about their experience, they have a First Amendment right to do so. To the extent the judge has chilled their ability to speak, he has exceeded his authority.

It's well-settled by the U.S. Supreme Court that most of the individual rights in the first 10 amendments to the Constitution are "fundamental," meaning they can only be abridged when government has a compelling interest to do so. And, when such a compelling government interest exists, the proposed government action must be narrowly tailored to advance that compelling interest.

How does this apply to the Porter case jurors? In the case of the fundamental right of freedom of speech, the law disfavors a judge from prohibiting speech that may occur in the future, such as a juror posting a Facebook update about the deliberation. These "prior restraints" of speech are almost never permitted. Indeed, given that it could potentially take months or even years to try and retry all of the defendants, it's unimaginable that an appeals court would allow even a permissible prior restraint to last that long.

So what's the solution? Judge Williams should enter his instructions to the jury as part of a journal entry. This is the written public record of what a judge has done. He could balance the interests of this case with a short declaration making it clear that, while jurors may decline to speak publicly about the case, those who wish may indeed speak out.

The result will permit future trials to be fair, while giving an already-skeptical public a fuller sense of transparency about this important case.

Mark R. Weaver has served as a magistrate, prosecutor and spokesman for the U.S. Department of Justice in a legal career spanning 25 years; he now teaches a class dealing with the legal and ethical issues surrounding high-profile trials at The Ohio State University College of Law. Twitter: @MarkRWeaver.

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