A bad idea spawns another

The fear is that somewhere lurks Danny Padgitt, or a facsimile of him. Padgitt is a product of rough fiction from the smooth mind of John Grisham. A member of a Mississippi bootlegger family, Padgitt rapes and kills a pretty widow, then threatens to hunt down jurors if they convict him. The scenario in “The Last Juror” made for intriguing reading and another big seller for Grisham, but is rare in the nonfiction realm. As legal premise, it stinks.

A state advisory commission is undaunted. That group has proposed keeping jurors’ names confidential, a step unprecedented in the union’s other 49 states, bringing to Virginia another distinction, this one for wiping feet on the Constitution, not the letter of it but the spirit. It’s enough that even the author of the bill from which the proposal springs is taken aback.

Del. Robert G. Marshall, R-Prince William, introduced legislation last year allowing judges to conceal jurors’ names from the public in cases where the threat of intimidation surfaces. The intent, he says, was for the option to be used when circumstances warranted. Judges in Virginia Beach interpreted it differently, applying the law unilaterally. All jurors’ names are sealed.

“That’s messed up,” Del. David Albo, R-Fairfax County, chairman of the House Courts of Justice Committee, told the Richmond Times-Dispatch.

Not so, says an advisory committee to the state Supreme Court. The rub, the panel says, is that concealing jurors’ names only in cases where potential harm is perceived could prompt jurors to view defendants as dangerous, leading to presumptions of guilt. If this is true, then conceptually the process is deeply flawed. Jurors whose anonymity renders them incapable of ruling fairly after days of testimony and defense arguments should be absent from the box rather than only unnamed.

At stake in all this is the right to trial by a jury of one’s peers. This is not delineated precisely in the Constitution but it surely is implied in the Sixth Amendment’s guarantee of a swift and public trial by jury. The concept of “a jury of peers” is derived from the English Magna Carta, upon which much of United States law is based. Congress got straight to the point in 1861, declaring that defendants have a right to “juries selected at random from a fair cross-section of the community ... .”

That provision and the advisory commission’s proposal should be weighed in consideration of the First Amendment assurance of freedom of the press. Stealing the public’s right to know the identities of jurors strips from the public the ability to discern whether juries, in fact, represent “a fair cross-section of the community.” This matters, as jury selection reform in Pennsylvania shows. An investigation by the Pittsburgh Tribune-Review in 2002 found that blacks were dramatically underrepresented in juries. Five years later, Gov. Ed Rendell signed the reform bill. Openness is crucial to ensuring rights aren’t squashed.

And there’s this: no one knows of specific instances in Virginia in which a defendant has harmed a juror. Marshall’s legislation targeted a danger perceived but never shown real. So a law founded on nothing threatens to become something worse.

Grisham might smile but not justice. The state Supreme Court should reject the proposal of its advisory committee and, when the inevitable happens and Marshall’s law is challenged, it should be tossed to the legislative trash heap along with other refuse springing from ideas well-intentioned but foul.