Judge Harvey Bartle III has scheduled a hearing for 10 a.m. Friday on a motion by Philadelphia Media Network to unseal "records and information relating to the dismissal of Juror No. 12."
On Monday morning, the same day Bartle sentenced former U.S. Congressman Chaka Fattah to 10 years in prison for racketeering and corruption, Philadelphia Media Network filed a motion to intervene in the Fattah case, in order to obtain "records and information related to dismissal of juror."
Philadelphia Media Network owns The Philadelphia Inquirer, the Philadelphia Daily News and philly.com. The 12th Juror in the Fattah case was dismissed after he was accused of refusing to deliberate. But in an interview with this reporter, Juror No. 12 insisted he wasn't refusing to deliberate, he was refusing to change his mind after he came out on the short end of eight straight 11-1 votes, the last of which was over whether Karen Nicholas, one of Fattah's aides was guilty of falsifying records. That prompted speculation as to whether the case should have ended in a hung jury.
In an accompanying memorandum of law filed Thursday, the Inquirer's attorneys, Amy B. Ginensky and Eli Segal of Pepper Hamilton LLP, wrote that "the Court appears to have sealed records related to that dismissal [of Juror No. 12] and to have ordered the parties not to discuss the dismissal."
The judge did impose a gag order on all the lawyers involved in the Fattah case not to discuss the dismissal of Juror No. 12. So the Inquirer lawyers asked for the right "to intervene and seek access to records and information elated to the juror's dismissal."
As Exhibit 1 attached to their motion, Ginensky and Segal attached a copy of the Aug. 3rd article on phillyvoice.com written by Ralph Cipriano and George Anastasia, headlined, "Should Chaka Fattah trial have ended with a hung jury?"
As Exhibit 2, the lawyers attached a copy of a Dec. 4th blog post on Big Trial, headlined, "As Sentencing Nears, Debate Continues Over Chaka Fattah."
It's reassuring that the Inquirer's lawyers know where to go for news that matters.
In the motion for access to records and information related to the dismissal of Juror No. 12, the Inquirer lawyers argued for the release of a transcript of a hearing that Judge Bartle conducted with the juror before dismissing him, and a lifting of the gag order about the dismissal of Juror No. 12.
In a memorandum of law in support of their motion, the lawyers wrote, "The details surrounding the juror's dismissal have not been made public." Those details, the lawyers wrote, should be made public "to bring clarity to the public on this critical issue."
"Access to judicial proceedings and records subject to the common law or First Amendment Right of access may be denied only in the rarest of circumstances," the lawyers wrote. "Here, six months after Fattah's conviction for public corruption, PMN seeks access to all transcripts, notes from jurors, written submissions, orders, or opinions" related to the June 17th dismissal of Juror No. 12.
"The fact that this case involves a public official charged with public corruption makes the public's interest in the records -- and thus the need for access -- all the more compelling," the lawyers wrote. Public disclosure "would eliminate public mystery regarding what a dismissed juror did to prompt his dismissal."
The lawyers quote prior case law as saying, "the issue of potential juror misconduct goes to the very heart of public confidence in the fairness or appearance of fairness in judicial proceedings. Once the spectre of a gained jury is raised, public scrutiny of the resolution of the issue is essential . . . "
"Given that almost six months have passed since the jury returned its verdict, whatever need existed for imposing such a prohibition in the first place has likely subsided," the lawyers wrote.