Defendants, allegedly members and an associate of the Lucchese organized crime family, are charged in considerable detail with conspiracy to commit racketeering as well as various acts of racketeering, including thefts by extortion and the murder of an associate who refused to pay "tribute" to a member of the crime family by beating him to death with golf
clubs.*fn1 The State has moved for an order that the jury selected for the trial be anonymous, that is, that the names, addresses and places of employment of the jurors not be disclosed during voir dire. This opinion follows the oral determination of the motion at the Conclusion of its hearing.
There is no specific authority in New Jersey in either the Rules of Court or case law for the empanelling of an anonymous jury. Customarily, jurors' identities are disclosed and to the extent that the Rules refer to the matter it is contemplated that they will be disclosed. R. 1:8-3(a) provides:
Examination of Jurors. For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court's interrogation in its discretion. At trials of crimes punishable by death, the examination shall be made of each juror individually, as his name is drawn, and under oath. (emphasis added).
The State contends that in the absence of any specific provision in the Rules of Court authorizing an anonymous jury, the court may order such pursuant to R. 1:1-2 which provides that the rules:
Shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. Unless otherwise stated, any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an inJustice. In the absence of rule, the court may proceed in any manner compatible with these purposes.
Arguably, also, since a trial court would have some discretion in the scope of voir dire during jury selection, identification of the jurors could be omitted as an exercise of that discretion in an appropriate case.
The State has not filed affidavits or introduced other evidence in support of its motion. Instead, the State relies on its brief, the indictment and facts of which the court presumably is asked to take judicial notice, such as previous court proceedings [261 NJSuper Page 490] involving the defendants. Based on its submission the State urges, in effect, that the defendants are dangerous individuals who will go to great lengths to obtain their ends presumably to include tampering with or otherwise intimidating the jury; that they have the means to accomplish such results; that the jury will be fearful for their safety if compelled to disclose their identities; and that the trial will attract great interest from the news media against whom the jury will need to be protected. The State notes that the use of an anonymous jury has been approved, when appropriate by the federal courts and that the voir dire of the jury is not considered to be a matter of federal constitutional dimension. United States v. Scarfo, 850 F.2d 1015 (3d Cir.1988), cert. denied, 488 U.S. 910, 109 S. Ct. 263, 102 L. Ed.2d 251 (1988). The State recognizes that in addition to the present charges and alleged criminal affiliations of the defendants, their past history is an important factor to be considered. Defendant Accetturo has a lengthy record of juvenile and adult convictions dating to 1956, including six adult convictions, one for extortion and another in 1990 for federal income tax evasion. In addition, in September 1989, despite a grant of immunity, he refused to testify before a state grand jury. He was found in contempt and incarcerated in order to induce his compliance with the order to testify. See, Matter of Grand Jury re Acceturo, 242 N.J. Super. 281, 576 A.2d 900 (App.Div.1990). Defendant Michael Taccetta was recently paroled from prison on a federal conviction and was also convicted in 1972 of gambling conspiracy and working for an illegal lottery business. Defendant Ricciardi was convicted in 1977 of assault. Defendant Martin Taccetta was convicted in 1971 of carrying a prohibited weapon, in 1972 of a gambling offense, and in 1977 of extortion and assault. Defendant Michael Ryan was convicted in 1970 of simple assault, in 1972 of a gambling offense, in 1975 of selling untaxed cigarettes, in 1977 of simple assault and carrying a prohibited weapon, in 1978 of assault, in 1982 of simple assault, and in 1989 of a prostitution related offense.
Recognizing that there would be a risk of prejudice to the defendants if an anonymous jury is utilized, the State asserts that such risk can be minimized by instructions carefully framed to avoid a belief by the jury that the anonymous procedure is extraordinary or that it reflects adversely on the defendants. It is difficult to conceive of instructions which could be truthful and efficacious in this regard. In the federal courts the instructions which have been utilized have sought to assure jurors that no unusual procedure is being followed and they have stressed the desirability of insulating the jury from inquisitive news media people while studiously avoiding the actual reason for the procedure. Thus, as noted in United States v. Tutino, 883 F.2d 1125, 1133 (2d Cir.1989), cert. denied, 493 U.S. 1081, 110 S. Ct. 1139, 107 L. Ed.2d 1044 (1990), the trial court had told the prospective jurors, "It is a common practice followed in many cases in the Federal court to keep the names and identities of the jurors in confidence. This is in no way unusual. It is a procedure being followed in this case." Obviously such an instruction would not be accurate in a state court trial in New Jersey. Also, while publicity by the news media may be a factor in determining whether to select an anonymous jury, see, e.g., United States v. Persico, 621 F. Supp. 842, 879 (S.D.N.Y.1985), aff'd, 832 F.2d 705 (2d ...