Juror Number One

Criminal Defense Attorney Ken Rosenfeld

Sacramento · San Francisco · Los Angeles · San Diego

One-Sentence Order

According to The Recorder on 7/3/12:

Sacramento—The California Supreme Court late Monday stayed an order  that would have forced a Sacramento County juror to hand over Facebook messages he posted during a criminal trial.

The one-sentence order, signed by Chief Justice Tani Cantil-Sakauye, was filed just hours before a Third District Court of Appeals ruling against the juror would have become final.

“The brief was filed at one in the afternoon and the stay was issued at five,” said the unidentified juror’s attorney, Kenneth Rosenfeld of Sacramento. “We’re very satisfied that they’ve issued the stay.”

The court, which has not yet granted review in the case, did not address the merits of the case or order briefings.

The case of Juror No. 1, as he is known in court filings, has been closely watched for its potential to draw a legal line between defendants’ fair-trial rights and social media users’ expectations of privacy. Juror No. 1 served as the jury foreman on a five-defendant assault trial overseen by Sacramento County Superior Court Judge Michael Kenny in 2010.

After the jury reached its verdicts, a fellow juror told a defense attorney that the foreman had posted comments about the case on Facebook during the trial. Kenny ordered an evidentiary hearing, and Juror No. 1 admitted that he told online friends that testimony about cell phone records was “BORING.” Any other posts, he said, were just to his followers that he was still serving on jury duty.

Kenny found all of the jurors “credible.” None were charged with contempt. But one of the defendants then subpoenaed the foreman’s Facebook posts and other electronic communications. Kenny quashed the subpoena as overly broad. But he also issued an order calling on the foreman to consent to the search and release of his records.

In May, a unanimous Third District panel ruled that the Stored Communications Act offered no protections to Juror No. 1 and ordered him to give any relevant Facebook posts to the trial judge for review. Rosenfeld appealed the ruling.

“We do believe this case has significant legal and constitutional issues, and we think the highest court in the state should hear them,” Rosenfeld said.

The case is Juror Number One vs. Superior Court (Royster), S203713.

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