Judge allows newspaper to contact jurors in gay hate-crime case, but declines to strike down overall rule

bestep@herald-leader.comNovember 21, 2012 

A judge has declined to strike down a rule against contacting jurors after criminal trials in federal court.

However, U.S. District Judge Gregory F. Van Tatenhove gave permission for the Lexington Herald-Leader to contact jurors who heard the case against two cousins charged in the kidnapping and assault of a gay man in Harlan County.

Jason and Anthony Jenkins were charged with attacking the victim, Kevin Pennington, in April 2011 because of his sexual orientation.

The Jenkins cousins were the first people in the nation tried under a section of the federal hate-crime law that makes it illegal to injure someone because of the victim's real or perceived sexual orientation.

After six days of testimony and arguments in federal court in London, jurors on Oct. 24 convicted the cousins on kidnapping and conspiracy charges.

However, the jury acquitted the two on the charge that they assaulted Pennington because of his sexual orientation.

That was a setback for the government in its first attempt to win a conviction at trial under the gay-bias section of the hate-crime law.

The Herald-Leader refrained from contacting jurors for comment on their reasoning in the decision because of a court rule.

The rule says that unless permitted by the court, "no person, party or attorney, nor any representative of a party or attorney may contact, interview, or communicate with any juror before, during or after trial."

After the trial, the Herald-Leader asked Van Tatenhove to strike down the rule, arguing it is an unconstitutional hindrance to the newspaper's First Amendment right to gather news.

Van Tatenhove said in his decision that while the rule may be inconvenient for the newspaper, it is not unconstitutional because it includes a provision under which the newspaper can seek court permission to contact jurors.

"In this way the rule does not erect an impenetrable wall of partition between the jury and the media, it simply provides for an intermediate step that the press must take before contacting jurors," Van Tatenhove said in the decision.

The rule is merely an extension of the privacy provided to jurors during deliberations, as well as a safeguard "to protect jurors from harassment and molestation once they have served their country by considering the evidence in a case and rendering a verdict," the judge said.

Van Tatenhove also declined to strike down a rule against publicly releasing any information about jurors, including their names.

However, he said he would contact jurors who heard the Harlan County case and see if they are willing to speak to a reporter, and pass on the names of willing jurors to the newspaper.

Bill Estep: (606) 678-4655. Twitter: @billestep1

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