Published: New Hampshire Bar News
August 16, 2023
In August of last year, a New Hampshire jury acquitted Volodymyr Zhukovskyy, then 26, of seven negligent homicide charges, seven manslaughter charges and a single reckless conduct charge. A week earlier, the trial judge had dismissed eight additional charges related to driving under the influence of drugs due to the prosecution's failure to produce sufficient evidence to support those charges.
The Zhukovskyy case, involving as it did the unspeakable tragedy of seven lost lives, generated significant national interest. The jury's verdict after approximately three hours of deliberation was condemned by a number of individuals as erroneous. While the trial itself was undoubtedly interesting and well tried, this article considers the Boston Globe's post-trial petition to have the Court disclose the names and addresses of the jurors who sat in judgment of Mr. Zhukovskyy.
Trial by jury has a history that stretches back to the signing of the Magna Carta over 800 years ago. It has persisted over eight centuries because it is the best system we have to discern liability and damages in civil cases and guilt and innocence in criminal matters. As noted by the trial judge in Zhukovsky, "[t]he obligation of jury service is one of the most important that our government imposes on its citizens. It is, therefore, important to ensure that the fulfillment of this obligation is not made so burdensome that it becomes more than a citizen should have to bear." State of New Hampshire v. Zhukovskyy, Coos County Superior Court, No. 214-2019-CR-00078, Order dated April 4, 2023 at 9, citing United States v. Chin, 913 F.3d 251, 261 (1st Cir. 2019).
In order to decide whether to divulge to the Boston Globe the names and addresses of the jurors, the trial judge appointed amicus counsel to interview the jurors to discern their views on disclosing their names to the Globe reporter. Amicus counsel reported that the jurors were uniformly opposed to the court's disclosure of their names and addresses and thereafter subject to requests by the Boston Globe (and perhaps others) to be interviewed about their jury service. One juror stated that he had begun to carry a gun for protection against those who had spoken harshly about the verdict and the jurors who delivered it. After the verdict, the jury was condemned by members of the general public and public officials alike. Although those commenting harshly on the verdict had not sat in the courtroom and listened to the evidence for twelve days, they were obviously disappointed and angered by what they perceived as an unrequited tragedy.
With the input of amicus counsel, the trial court undertook to balance the jurors' and media's competing interests in disclosure. When considering jurors' privacy interests, the trial court pointed out that today, with the advent and prevalence of social media, the risk of potential harm to the jurors whose identity is widely shared can be significant. Take, for instance, a local restauranteur who serve on a jury that delivers an unpopular verdict. There is virtually nothing that would keep those dissatisfied with that juror's service from negatively rating their restaurant in response to that disaffection. Likewise, jurors who are also parents would naturally be concerned that their children could be marked for negative comments or worse. The risk of community censure is amped up multifold by social media in a way that was not the case even fifteen years ago.
Another important factor favoring keeping the jurors' identities in confidence is the impact disclosing that information to the news media could have on the ability to attract future jurors and insure their impartiality. Knowing that one's decision may be dissected publicly and subject the individual to the public's anger, might cause individuals to attempt to avoid jury service and to make their decisions based on what the juror thinks will be the more popular decision (and how the verdict will be covered in the press, notwithstanding what an unvarnished view of the evidence would dictate as a result.
The trial court balanced the jurors expressed aversion to having their names and contact information disclosed to the Boston Globe with the newspaper's interest in examining every aspect of a case that had garnered national attention. As argued by the Globe, disclosure of the jurors' names and address information "would allow it 'to give the public an insight about the trial, the judicial system and post-trial comments about the jury's verdict from those jurors who are willing to speak with its reporter'" activity that is at the core of First Amendment values . . .) Opinion at 12, quoting Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 587 (1976) (Brennan, J., concurring).
The trial court's decision not to order disclosure of jurors' names and contact information was fortified, at least in part, by the fact that trial had been live-streamed allowing the Press, even those who chose not to travel to Lancaster, to observe the proceeding and form their own opinions as to Zhukovskyy's guilt or innocence. Moreover, the State and Zhukowskyy's lawyers had the juror identity information available to them at the time the case was empaneled, relegating the jurors' individual identities to the status of trial artifact.
In summary, while there are occasions when it would be in the public's interest to allow follow-up inquiries about jury deliberations (such as when counsel calls the jurors after thirty days have passed since verdict), the Zhukovskyy fact pattern was not one of them.
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