Juries

Juror Told to Make Facebook Posts Available

Yesterday, the California 3rd District Court of Appeal ruled that a juror (Arturo Ramirez) must make his Facebook posts available to the court.  As some of you may recall, this is an ongoing saga which is unlikely to end with this ruling.  The attorney representing the juror, Kenneth Rosenfeld, has already filed an appeal with the California Supreme Court.   

This issue initially arose from Arturo Ramirez's service as a juror on a criminal trial.  Ramirez along with 11 other jurors convicted several members of the Killa Mobb gang of serious criminal offenses. At the conclusion of trial, attorneys for the convicted defendants were contacted by a juror on the case who claimed that during the trial Ramirez had made and received comments about the case on his Facebook page.

Defense counsel, which issued subpoenas to Facebook and Ramirez, want access to Ramirez's Facebook page. Defense counsel claim that Ramirez's Facebook page, which is not publicly available, will show that he was biased or improperly contacted by outside parties during the trial.  

Facebook, citing the Stored Communications Act of 1986, refused to turn over the postings despite receiving the subpoena.  Facebook, however, said that Ramirez, who has been given copies of his postings, can, if he so desires, give the postings to defense attorneys.  To date, Ramirez has refused to turn over the posts despite receiving the subpoena.  Instead, he filed a petition for a writ of prohibition to vacate the trial court's order requiring him to release the information.  In appealing the trial court's decision ordering the release of the posts, Rosenfeld, stated that "in actuality, I'm defending the privacy rights of 500 million Facebook users--this case has implications for anyone who uses social media." 

For more background on this case go here.

Jurors' Facebook Posts Not Enough to Overturn Guilty Verdict

An appellate court in Massachusetts recently upheld the conviction of a defendant for embezzlement despite the fact that two jurors who sat on the defendant's case discussed their jury service on Facebook.  While the appellate court deemed the jurors' public Facebook posts to be inappropriate, it did not find that they resulted in the jurors being exposed to extraneous influences. 

The defense appeared to indicate that the public Facebook posts of the jurors were indeed insufficient to demonstrate an extraneous influence. However, the defense claimed that the real problem was that the trial court decided this issue without all the necessary information. Apparently, the defense had subpoenaed Facebook to gain access to the private posts of the jurors. When the trial court held an evidentiary hearing to look into this issue of juror misconduct, Facebook had not responded to the defendant's subpoena request.  

The appellate court found defense's argument unpersuasive.  According to the appellate court, [t]he defendant...could offer only unsupported speculation that the desired subpoenaed documents might include previously undisclosed communications of extraneous information to the jurors. It was therefore within the judge's broad discretion to deny the motion for new trial without awaiting Facebook's response to the subpoena.

The case, Commonwealth v. Werner, is available here.

NJ Juror Held in Contempt for Internet Research

In re Kaminsky, (N.J. Sup. Ct., Bergen County, Mar. 12, 2012) a trial judge held a juror in contempt for going online and researching the potential punishment for a criminal defendant.  The  juror, who was the foreperson, faced 6 months in jail and a $1000 fine for his criminal contempt conviction.  However, his sentence was only a $500 fine.

h/tip EDiscoveryLawAlert

Tweets by Filmmaker Juror Leads to Motion for New Trial

The latest incident of improper use of social media by a juror involves noted filmmaker Billy Corben who directed the films Cocaine Cowboys and The U.  Recently, Corben was the foreman on a jury that convicted a Florida defendant of armed robbery.  Apparently, Corben, despite admonitions from the judge, continued to use Twitter and Facebook while sitting as a juror.  Although it does not appear as though Corben discussed specifics of the case, he did let all of his followers know that he was on jury duty and received at least one inappropriate comment (listed below) on Facebook.

“We’ll make sure you put the bad guy away!”

In light of Corben's actions, the defendant's attorney has filed a motion for a new trial available here.

For more background on this story go here.

Revealing Information About Jurors (U.S. v. Daugerdas)

When must an attorney reveal juror misconduct to the court or opposing counsel?  That is the question facing U.S. District Judge William Pauley. 

The issue arose from a criminal trial in which four defendants were found guilty of tax evasion and other charges.  Apparently, one of the jurors (Catherine Conrad) who decided the fate of the defendants had lied during voir dire.  For example, she failed to tell the court that she was a suspended lawyer (she said that her highest level of education was an undergraduate degree) or that her husband had an extensive criminal past. 

Defense attorneys want Ms. Conrad's actions to serve as grounds for a new trial (read their brief here).  The government, however, argues that Ms. Conrad was not biased and defense counsel waived their right for a new trial because they "knew or at least believe it was very likely that Conrad was a suspended New York attorney... (read their brief here)."

To support the waiver argument, the government points to the following facts:

(1) Upon initial voir dire (March 1) defense counsel "googled" Ms. Conrad and found among other things that a Catherine M. Conrad had been suspended from the NY Bar in 2010.

(2) During jury deliberations (May 11) Ms. Conrad sent a note to the Court asking whether it intended to instruct the jury on respondeat superior and vicarious liability. This led defense counsel to obtain a Westlaw Report (May 12) on Ms. Conrad and conduct further research on her.  The information uncovered by defense counsel seemed to indicate that despite her voir dire testimony, Ms. Conrad was indeed a suspended attorney. 

(3) On July 8, 2011, defendants filed their Rule 33 motion seeking a new trial based on false information provided by Ms. Conrad during voir dire.  The defense motion makes no mention of the defense teams earlier investigation of Ms. Conrad.

It will be interesting to see how the judge rules on the defense's motion for a new trial and whether any ethical sanctions are forthcoming.  One of the problems here is that juror information is not subject to the Rules of Discovery. Also, State Bar rules have not kept pace with the Digital Age and the new methods by which attorneys investigate jurors.

For more background information on this case go here.

Subpoenaing a Juror's Facebook Posts

Last week, a California appellate court heard arguments on whether a juror's Facebook postings are constitutionally protected.  The case is entitled Juror Number One (A.R.) vs Honorable Michael P. Kenny Judge of the Sacramento County Superior Court. Prior case filings include the answer, the complaint and request for stay.

This case arose from the criminal conviction of five men who were found by a jury to have participated in a gang beating.  One of the jurors who decided the fate of the defendants, the jury foreman (A.R.), posted on Facebook during the trial.  Some of his posts related to the trial.  These posts were discovered by another juror who was Facebook friends with A.R.

Attorneys for the defendants believe that A.R.'s Facebook posts will prove that the juror was either biased or improperly contacted by outside third parties.  However, the defense attorneys don't have access to the juror's Facebook page.  Thus, the defense attorneys subpoenaed A.R.'s posts from Facebook.

Citing the Stored Communications Act of 1986, Facebook refused to turn over the postings.  Facebook, however, said that A.R., who has been given copies of his postings, can, if he so desires, give the postings to the attorneys of the criminal defendants.  To date, A.R. has refused to turn over the posts.  The attorney representing A.R. argues that the subpoena is a violation of A.R.'s 1st and 4th Amendment rights to free speech and privacy. This case pits a juror's 1st and 4th Amendment rights against a defendant's 6th Amendment right to a fair trial.

Impartial Jurors in the Age of Social Media: New Law Review Article

Hon. Amy J. St. Eve and Michael Zuckerman, Ensuring an Impartial Jury in the Age of Social Media, Duke Law and Technology Review

Abstract:

In this Article, we present informal survey data from actual jurors on their use of social networking during trial. We discuss the rise of web-based social networks like Facebook and Twitter, and the concerns that arise when jurors communicate about a case through social media before returning a verdict. After surveying how courts have responded to jurors’ social media use, we describe the results of the informal survey. The results support a growing consensus in the legal profession that courts should frequently, as a matter of course, instruct jurors not to use social media to communicate about trial. Although others have stressed the importance of jury instructions in this area, we hope that the informal survey data will further the dialogue by providing an important perspective—that of actual jurors.

Financial Impact of Tweeting Jurors

As even casual readers of this blog are aware, I spend a significant amount of time discussing jurors who blog, tweet or research a case.  However, I have yet to consider the financial ramifications of such activity.  That changes today as I want to highlight an article in Smartmoney entitled 5 of the Costliest Tweets Ever.

The article examines "five of the more regrettable tweets so far--and the estimated hefty price tags that came with them."  Coming in at number two is the recent case of Dimas-Martinez v. Arkansas.  Here, the Arkansas Supreme Court reversed the conviction of a death row inmate because a juror deciding the man's fate continued to tweet about the case despite being told not to by the court.

According to the Smartmoney article, "A new trial could cost taxpayers $600,000." 

More Articles on Tweeting Jurors

Patch.com: Drew Peterson Lawyer Looking For Loophole?

Press Gazette: Tweeting from court: 'It's multi-skilling gone mad'

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Jurors' Tweets Upends Trials

Here is one more article discussing the impact of improper juror communications and research in the Digital Age.

Wall Street Journal: Jurors' Tweets Upends Trials

An Arkansas jury found Erickson Dimas-Martinez guilty of murder in March 2010. This past December, the conviction was thrown out. The reason: A juror had been tweeting during the trial...to continue reading go here.