Jurors Gone Wild!

Criminal Defense Attorney Ken Rosenfeld

Sacramento · San Francisco · Los Angeles · San Diego

ON HIS APTLY NAMED WEBLOG, THE MISANTHROPE, a prospective juror in Ventura County called his fellow jury candidates “liars” and “bozos.” But that was before he became Juror No. 7 in the 2008 gang murder trial of Michael R. Ortiz.

Once on the panel, Juror No. 7’s prose really took off. Ignoring daily admonitions by Superior Court Judge Edward F. Brodie not to discuss the case, the man portrayed the defense lawyer as “whacked out” and having a “Columbo detective-style of acting stupid.” He complained about the court’s long breaks and likened court staff to “Caltrans freeway workers” who always seem to be “picnicking alongside the freeway.”

Then Juror No. 7’s trial musings took a more ominous turn. After hearing evidence from the county’s medical examiner, he posted descriptions he obtained via Internet research on the difference between a medical examiner and a coroner. He bragged about seeing Judge Brodie’s sidebar “scolding” of lawyers in the case. And he got feedback on his blog posts from a coterie of sympathetic online readers.

After complaining about the length of the 19-day trial, Juror No. 7 told his readers that he had volunteered to be foreman to “expedite matters.” While serving as foreman during deliberations, he used his cell phone camera to photograph the murder weapon—a 15-inch saw-toothed knife—and posted the image on his blog.

Ultimately, the jurors convicted Ortiz of first-degree murder. When Judge Brodie learned of Juror No. 7’s misconduct, he ripped into the jury foreman, holding him in contempt but declining to punish him. Brodie denied a defense motion for a new trial, finding that because Ortiz’s jury wasn’t “substantially biased,” the foreman’s misconduct wasn’t prejudicial. In October 2009, the Second District Court of Appeal affirmed that ruling in an unpublished opinion (People v. Ortiz, 2009 WL 3211030).

Attorney Linda C. Rush of Camarillo, who represented Ortiz on appeal, says the legal analysis of Juror No. 7’s blogging doesn’t get at the subtlety of the potential bias. “The problem with his blog was, the responses he got were affirming his cynical attitude toward the judge and the process,” she says. “He created an audience, and during deliberation he was playing to an audience that other jurors didn’t even know was there. The court didn’t see this as a structural error.”

HARMLESS ERROR OR NOT, JUROR NO. 7’S Internet postings are no longer unusual. Prospective jurors who’ve grown accustomed to social networking on smartphones seem unimpressed by admonitions to avoid blogging, texting, and posting on Twitter.com in court and during deliberations. Incidents of willful disobedience – if not juror misconduct – seem to increase by the day. Consider:

• A judge in Michigan fined a juror $250 last fall, and ordered her to write an essay on the Sixth Amendment, for posting a comment on her Facebook page—before the defense had presented its case—that she thought the defendant was guilty.
• Five jurors in the corruption trial of former Baltimore Mayor Sheila Dixon last year “friended” one another on facebook and continued to post comments about their jury service, even after being told not to by the judge.
• A juror in West Virginia failed to disclose during voir dire that she knew the defendant and had contacted him on MySpace after receiving her jury summons. Her lengthy message included, “God has a plan for you and your life.” The state Supreme Court overturned the defendant’s fraud conviction, becoming one of the first courts in the nation to base its juror misconduct ruling on a person’s messages to a “friend” on a social networking site (State v. Dellinger, 225 W. Va. 736 (2010)).

Reuters Legal has reported that jurors’ Internet research, blog comments, and tweets have called into question at least 90 verdicts since 1999. Using data supplied by Westlaw, it found that judges had granted new trials or overturned verdicts in 28 such criminal and civil cases, 21 in the past two years.

As part of its investigation, Reuters monitored postings on Twitter for a three-week period, typing “jury duty” into the site’s search engine. Many of the tweets turned up were from people expressing snap decisions on a defendant’s guilt or innocence. “Jury duty is a blow,” one tweet read. “I’ve already made up my mind. He’s guilty.” Another tweet from a prospective juror read, “Guilty! He’s guilty! I can tell!”

A Reuters reporter actually tracked down that juror, using his Twitter identity. He had been selected from a jury pool in Los Angeles Superior Court, and he told the reporter that the defendant in the case was convicted. Reuters forwarded those tweets to the superior court, which responded through a spokesperson that the tweets were acceptable because they were made in the jury assembly room and before the juror was chosen for duty.

The problem—for judges, defense counsel, and ultimately the taxpayers who foot the bill for retrials—is how to protect a defendant’s Sixth Amendment right to a fair trial when jurors are awash in social media, potentially contaminating the integrity of the proceedings.

Trial judges, who have considerable discretion to investigate alleged misconduct, are doing their best to prevent bad behavior. Reuters Legal found that in the 18 months preceding its December report, the federal courts and at least eight state courts had rewritten civil and criminal jury instructions to bar jurors from tweeting, sending text messages, blogging, emailing, or researching trial proceedings online.

In California, preliminary admonitions to jurors couldn’t be more sweeping: They prohibit the use of any electronic device or medium, any Internet service, any text or instant-messaging service, and any Internet chat room, blog, or website to exchange any information about the case until the panel is discharged (CACI No. 100).

Last August the Ninth U.S. Circuit Court of Appeals revised its model jury instructions to account for Internet and other technologies. They read, in part, “Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it. This includes discussing the case in person, in writing, by phone or electronic means, via e-mail, text messaging, or any Internet chat room, blog, Web site or other feature.” (Ninth Circuit Model Crim. Jury Instr. 1.8.)

That all seems pretty clear—and for the most part, admonitions have been effective. But when some jurors disregard the rules and blog, post, or tweet anyway, how are the defendant’s rights affected? “Google mistrials” was the subject of a recent law review article by Loyola Law School Los Angeles student Amanda McGee (“Juror Misconduct in the Twenty-First Century: The Prevalence of the Internet and Its Effect on American Courtrooms,” 30 Loy. L.A. Ent. L. Rev. 301 (2010)).

“At any given moment, jurors now have the ability to use their cellular telephones to browse the web for the names of attorneys or parties in a case, educate themselves through Wikipedia.org about the technology underlying a patent claim or medical condition, examine an intersection using Google Maps, or even blog and update their friends about a case through Facebook and Twitter,” McGee writes.

After a verdict has been rendered, she notes, the party attacking the verdict bears the initial burden of showing that extrinsic communications by a juror occurred. Any private contact during trial about the matter under consideration is presumed to be prejudicial (Remmer v. United States, 347 U.S. 227 (1954)). But that presumption is not conclusive: “[T]he burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless.” (Remmer, 347 U.S. at 229.)

Courts, however, are loath to find external communications prejudicial if they lack substantive content. And jurors’ tasteless criticism about boring testimony or incompetent lawyers may not rise to that level.

“Of course the technology is a new animal, but the issues are the same,” says Elizabeth M. Roth, a Sacramento attorney currently representing a juror in a misconduct case. If a juror, overheard in an elevator, talks about a case, she says, that may be misconduct. “Is that different from a blog post?” she asks. “It’s really the same issue.”

Short of confiscating all electronic devices in the courtroom lobby, then, what is to be done?

“I think in terms of trying to restrict access to social networks, you will never get everyone to follow the rules,” says Michelle Sherman, special counsel in the Los Angeles office of Sheppard Mullin Richter & Hampton who advises companies on social media policy. The smarter strategy, she says, is to determine which potential jurors are using new technologies before they get on panels.

“Along with admonitions, judges and attorneys can ask basic questions of potential jurors—if they are using social media, Twitter, or blogs,” Sherman says. “There is no reason a judge can’t ask their Twitter name. And they can impress on jurors [that] their activity will be monitored.”

Still, the predicted avalanche of retrials stemming from such jury misconduct may be overblown, Sherman says. “I believe this is more a case of Chicken Little, ‘The sky is falling.’ ”

Meanwhile, trial lawyers are doing everything they can to protect against juror misconduct. Leslie Ellis, a jury consultant with TrialGraphix in Washington, D.C., says she advises her clients to monitor jurors’ Facebook, MySpace, or Twitter accounts and blogs during a trial to make sure none are discussing the case outside court sessions. “That’s how a lot of jurors have been caught,” she says.

But there are limits. Lawyers on Facebook should not be falsely “friending” potential jurors, friends of jurors, or adverse witnesses just to get a look at posts walled off by privacy settings, Sherman warns. Nor should they let anyone who works for them do so. An ethics committee in Pennsylvania recently said as much (Phila. Bar Assoc., Prof. Guidance Comm., Opinion 2009-02 (Mar. 2009)).

Of course, online profiling is a two-way mirror. “We’re being Googled within an inch of our lives—by jurors,” says Nanci Clarence, a criminal and white-collar defense attorney at San Francisco’s Clarence Dyer & Cohen. “That means whatever the last notorious criminal a lawyer has represented, it’s … potentially within [jurors’] reach” to find out, she says. “I have two active post-conviction death penalty cases now. The danger is that jurors are going to make improper, externally determined decisions.”

Clearly, the courts are in a quandary. Demands for transparency could lead to more pretrial rummaging through jurors’ online lives, and more post-verdict motions for retrial. But too heavy a hand—findings of juror contempt, stiff fines, and even jail time—could further discourage people from even showing up for jury duty.

Another possible alternative, raised in a case that may soon be taken up by the California Supreme Court, involves making all private social media communications posted by a juror during trial available to defense counsel. The issue arose last June in Sacramento Superior Court during the trial of five Killa Mobb gang members accused of a vicious beating. During the prosecution’s presentation of cell phone records, the jury foreman used his mobile phone to post the Facebook note, “can it get any more BORING?”

The foreman thought his rant was innocuous. But shortly after the jury convicted all five of the accused, another juror reported to defense counsel that she had become a “friend” of the foreman on Facebook, and that he had mentioned the case online during trial. In addition, the defense attorneys obtained five pages of posts from the jury foreman’s Facebook account. They asked Judge Michael P. Kenny to question several of the jurors, including the foreman, identified as Juror No. 1.

“The judge determined the juror was truthful, and that his postings were not prejudicial,” says Kenneth L. Rosenfeld, a Sacramento criminal defense attorney appointed by the court to represent Juror No.1. Rosenfeld says the judge questioned his client under oath, without a attorney, and the juror was also cross-examined by the defense. “After that was done, it should be over,” he says.

But the defense attorneys weren’t satisfied. They issued a civil subpoena to Facebook for complete records of the jury foreman’s account during seven months in 2010. The subpoena was accompanied by Judge Kenny’s order compelling Facebook to release the records or appear at the next hearing. Facebook moved to quash the subpoena, citing the Stored Communications Act (18 U.S.C. § 2701–2712) and the Electronic Communications Privacy Act (18 U.S.C. §§ 2510–2522).

“Under [the SCA] the provider is not obligated and not allowed to release the records without the account holder’s consent or a subpoena from law enforcement,” says Michael Wise, a sole practitioner in Sacramento who represents one of the defendants. “The law provides no avenue for defendants to assert a Sixth Amendment defense, which our circumstances demanded. This has set the grounds for a constitutional showdown.”

To avoid becoming entangled in the litigation, Facebook provided the requested postings to Rosenfeld. Defense counsel then issued a civil subpoena for the records to Juror No. 1, which Rosenfeld successfully moved to quash. But on February 4, Judge Kenny upped the ante, ordering Juror No. 1 to sign a consent form to permit the release and search of his Facebook postings or be found in contempt.

Rosenfeld immediately sought a writ of prohibition from the Third District Court of Appeal, which was denied (Juror Number One v. Superior Court, No. 6037309 (Cal. Ct. App., 3rd Dist.)). His client then sued in federal court to obtain an injunction based on privacy grounds, but the court declined without prejudice to intervene in a state criminal case (Juror Number One v. California, No. 11-397 (E.D. Cal. TRO denied Feb. 14, 2011)).

That same day, the California Supreme Court stayed surrender of the juror’s Facebook records until it could examine the issue. It requested briefing that may address the conflict between juror privacy and the defendants’ Sixth Amendment right to a fair trial (Juror Number One v. Superior Court (Royster), No. S190544 petition for review filed, and stay issued Feb. 14, 2011)). Rosenfeld believes that Judge Kenny’s order goes too far—and that in the long run a policy of threatening jurors with contempt won’t work. “This is an invasion of privacy that compromises the entire justice system,” he says. “It’s not innocuous protection of a defendant’s rights. Ask any juror if they want the Killa Mobb gang, or the Aryan Brotherhood, or the Mexican Mafia, to have their online family pictures after they return a guilty verdict.”

On the other hand, an order to sign a consent form permitting release of those pictures might silence a few smartphones in the jury box.

Credits: California Lawyer, April 2011 issue, page 22, authored by Pamela A. MacLean, a freelance writer in the Bay area.