The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

N.Y. Court Rejects Defendant's Desire "to Conceal His Identity at Trial"


From a New York trial court decision in People v. Govan (May 15):

[T]he defendant moves this court for an order allowing him to conceal his identity at trial. He argues that given the extraordinary amount of coverage the defendant, his actions in the courtroom, and the circumstances of the cases against him have received, he cannot receive a fair trial if the jury knows his true identity….

In February 2017, the defendant was arrested and charged with one count of Murder in the Second Degree in connection with the February 2005 death of Rashawn Brazell. Following Mr. Brazell's death an investigation was conducted by the police. To that end, reward flyers were posted in the neighborhood Mr. Brazell lived as well as in the neighborhoods that he frequented, appeals for information were made to the public through the media and the case was even broadcasted on a segment of "America's Most Wanted." The investigation did not result in the identity of an alleged perpetrator and thus the defendant's name was not mentioned in those media reports.

In November 2016, the defendant was indicted for an unrelated murder that occurred in 2004. As a result of new investigative leads regarding the death of Mr. Brazell, the defendant was subsequently indicted for the murder of Mr. Brazell in the instant indictment. Several media outlets reported on the defendant's indictments and followed the court proceedings, including a court appearance where the defendant refused to be fingerprinted, shouted that he was innocent, and had to be subdued by court personnel. A video of this particular proceeding as well as other proceedings were run by various media outlets.

In August 2018, the defendant was tried by a jury before this court for the unrelated 2004 murder. The defendant was found guilty of the charges of Murder in the Second Degree and Kidnapping in the First Degree. On September 7, 2018, the defendant was sentenced by this court to 25 years to life in prison on each count to run concurrently. The media was present throughout the course of the trial, as well as at the court appearances leading up to the trial. Members of different press outlets reported on the trial, the verdict and the sentencing. Notably, during the course of that trial, the defendant failed to raise any claim that the media would affect the defendant's ability to have a fair and impartial jury….

Here, the defense submits that given the "heinous allegations against [him]" and "the intense vilification of [him] on the internet," the only way to ensure that he receives a fair trial is to allow him to conceal his identity. Both the People and the defense acknowledge that allowing a defendant to proceed anonymously in a criminal trial is unprecedented relief….

In highly publicized cases, courts look to the voir dire process to determine whether a defendant has been denied his right to a fair and impartial trial. For example, in Murphy v Florida, the United States Supreme Court faced the issue of whether the defendant was denied a fair trial when members of the jury learned, through the media, certain facts about the crime for which the defendant was charged and that the defendant had a prior murder conviction. In holding that the defendant was not denied a fair trial, the Court held that the defendant failed to establish that the trial was prejudicial or that the jury selection process created an inference of actual prejudice. In reaching its decision, the Court found significant that during the voir dire process no juror indicated an inability to set aside any information heard or learned about the case and "none betrayed any belief in the relevance of [defendant's] past to the present case." … Here, [too,] the court, together with the parties, can conduct a thorough voir dire of the prospective jurors to ensure that the defendant's constitutional right to a fair trial by an impartial jury is not violated.

In addition to an extensive voir dire, jury instructions are an effective remedy in ensuring a defendant's right to a fair trial. In every case, whether deemed newsworthy or not, once the prospective jury panel is brought into the courtroom, it is customary for the trial court to not only introduce the parties and ask the potential jurors whether they know or have had any contact with the parties, but also to provide a brief synopsis of the allegations and to ask whether the potential jurors know or have read or heard anything about the case. Additionally, a trial court is required to give the jury certain admonitions in its preliminary instructions. Those admonitions must include:

that the jurors may not converse among themselves or with anyone else about any subject connected with the trial; that they may not read or listen to any accounts or discussions of the case reported by newspapers or other news media; that they may not visit or view the premises or place where the offense or offenses charged were allegedly committed or any other premises or place involved in the case; that prior to discharge, they many not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they must promptly report to the court any incident within their knowledge involving an attempt by any person improperly to influence any member of the jury

Here, the defendant speculates that notwithstanding the court's instructions, the temptation to research the defendant is "just too strong." He does not and, because jury selection has not commenced, cannot point to any example of a juror violating his or her oath or disregarding the court's instructions. Contrary to the defendant's baseless speculation, the Court of Appeals has held that jurors are presumed to "follow their oaths, answer the questions put to them truthfully and abide by the court's instructions." …

[Moreover, t]his is not a case where the trial takes place close in time to the alleged crime and media reports are fresh in the minds of the prospective jurors. Here, there has been no mention of recent or current media coverage of the defendant or the charges against him or any other indication showing that this case is still pervasive in the minds of Brooklyn's jury pool.

Moreover, Kings County is a large county which unfortunately sees several dozen homicides a year. So far this year, Kings County has seen 35 murder complaints. Last year, in 2018, there were 97 homicide cases recorded in Kings County. And in 2005, the year Mr. Brazell was murdered, it appears that there were over 200 homicide cases in Kings County. Many of these murder cases were covered by the media. The situation here is vastly different from that of a high profile case in a small town or a smaller county where the case is likely to be the center of public attention.

The article relied upon by the defendant cites to two instances where a party was allowed to proceed anonymously at trial. Both, however, were in the context of a civil matter, and not a criminal case…..

Assuming arguendo that this court were to grant the defendant's motion to conceal his identity, it would still not remedy the perceived harms asserted by the defendant. The defendant submits that entering his name in an internet search engine results in an immediate display of tremendous unfair and prejudicial information about him. However, as pointed out by the People, an internet search of the decedent's name or of the allegations in the case, such as "body parts in subway," would generate the same results as if one had conducted a search using the defendant's name. Hence, concealing the defendant's name would not prevent a juror who is willing to violate his or her oath and disregard the court's instructions from finding media coverage of the defendant and the case.

Additionally, this court presided over a pretrial Huntley hearing in which a statement attributed to the defendant was litigated. The court denied the defendant's motion to suppress the statement and ruled that the statement is admissible in the People's case-in-chief. In his statement, the defendant told police that he was out of state when Mr. Brazell was killed and did not return to New York City until several weeks after. However, when confronted with a signature bearing defendant's name in the guestbook from the decedent's funeral, the defendant admitted that the signature was his and that he had attended the decedent's funeral….