Wednesday, March 18, 2009

Twitter Here, Twitter There, Twitter Everywhere


What looked like a chirp from one errant twitterer has apparently become a veritable chorus of twittering jurors.

No sooner did twitter make its way into the courthouse in Arkansas where a juror posted messages about a case, then it happened again -- in a high profile case here in Philly. I had just finished writing about the first twittering juror the other day, All A Twitter, when the issue arose in the trial of former state Senator Vince Fumo.

Shortly before his guilty verdict of 137 counts for crimes of conspiracy, fraud, obstruction of justice and related offenses, the defense moved for the dismissal of a juror who posted about the case on Facebook and Twitter. Fumo: Jury says "Guilty" 137 times. Although the court denied the motion and the jury announced its resounding guilty verdict shortly after, it certainly will be part of the sure to follow appeal.

The juror in the Fumo case made various vague comments throughout the trial, but the judge found that the postings were harmless error. As noted by the Inquirer, the impact of the postings on appeal is uncertain, Judge finds blogging by juror benign, but legal opinion varies:

"Thou shalt not Twitter."

That's what Edward Ohlbaum, a Temple University law professor, suggested should be the 11th Commandment of proposed jury instructions for the courts in the Internet Age.

That was Ohlbaum's reaction yesterday to the blogging juror, Eric Wuest, 35, of Collegeville, who had posted status updates on Facebook and Twitter social networking Web sites about the federal corruption trial of former state Sen. Vincent Fumo since last September.

While prominent attorneys agreed new jury instructions are necessary, they were split about whether issues raised by the blogging juror were appealable.

* * * *

Attorney David Rudovsky, senior fellow of the University of Pennsylvania Law School, said, "Courts generally will not overturn a verdict unless there was improper conduct and prejudice toward the defendant.

"Here it appears there's been improper conduct," he added, but "it's not clear the defense has been able to show prejudice toward the defendant."

Both Rudovsky and Ohlbaum called an appeal a long shot.

Members of the Federal Defender Association believe an appeal is warranted.

Felicia Sarner, supervisory assistant federal defender in the trial unit, said the juror "breached his duty to keep comments confidential. . . . He was provoking questions."

Brett Sweitzer, assistant federal defendant in the appeals unit, said, "At the very least, the juror should have been taken off the panel. Set the clock back and start over.

"All you need to know is there was blatant misconduct."
While it's true that the articles don't provide all the details about what occurred, this case sounds a bit like the earlier case I mentioned, where the actual comments were less inflammatory than the mere idea of a juror writing about the case on the internet. Just the thought of it raises major issues.

On the other hand, before it is deemed to adversely impact a trial, the standard requires more than a visceral reaction. Max Kennerly discusses the burden required in, Does The Fumo Juror's Twittering Warrant A Mistrial?:

Here, however,the situation is a little different: while particular tweets (say, "he's guilty as sin, ain't nothin' gonna change my mind") might provide "substantial evidence" of "jury nullification" or "a refusal to deliberate," twittering alone isn't necessarily "substantial evidence" itself of any particular misconduct.

Sure, the jury is instructed to keep the content of deliberations secret, but it doesn't seem the juror revealed any content, other than the cryptic reference to a "big announcement" on Monday, which itself doesn't reveal any content other than the jury being close to a resolution.

Moreover, there's the bigger question of: so what? The Third Circuit still hasn't settled on a standard for removing a juror. Suffice to say it's not easy . . .
What is more of a concern is internet use generally by jurors to do research about the case and/or the parties outside the confines of the evidence presented at trial. The NYTimes describes the phenomenon, As Jurors Turn to Web, Mistrials Are Popping Up:

Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock."

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, a waste of eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said a defense lawyer, Peter Raben, who was told by the jury that he had been on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

* * * *
Jurors are not supposed to seek information outside of the courtroom. They are required to reach a verdict based on only the facts the judge has decided are admissible, and they are not supposed to see evidence that has been excluded as prejudicial. But now, using their cellphones, they can look up the name of a defendant on the Web or examine an intersection using Google Maps, violating the legal system’s complex rules of evidence. They can also tell their friends what is happening in the jury room, though they are supposed to keep their opinions and deliberations secret.
I have to say I'm somewhat surprised by the fact that jurors have cell phones and BlackBerrys in the courtroom -- maybe the rules are different for jurors than other visitors. I thought they had to be checked at the door of the courthouse. In any event, obviously, the courts need to re-work jury instructions to emphasize the dos and don't of appropriate behavior in the connected, internet age. Other than that, the same results will occur as did before. Some will violate whatever the rules are and most will try to comply.

(Cartoon via John Cole, TheTimes-Tribune)

2 comments:

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