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.

Juror Note Serves as Partial Grounds for New Trial Motion

Attorneys for Amy Senser recently filed a 36-page motion to get a new trial based partially on a claim that the judge hearing the Senser case failed to disclose the contents of a juror note.  To access defense counsel's motion go here.  For previous posts on the Senser trial go here.

Juror Mischief

Interesting article about the trouble some jurors get into for failing to follow the rules of the court.  While many of these jurors have the best intentions, their actions can easily lead to a mistrial.

Palm Beach Post: Juror mischief a growing concern

From drunk tests to body-drying.  Jurors, court watchers agree, sometimes do the darnedest things. Juror Dennis DeMartin has gotten more than his 15 minutes of fame for revealing in a self-­published book that he drank three vodkas one night during the trial to determine whether Wellington polo mogul John Goodman was unfit to drive in a 2010 crash that killed 23-year-old Scott Wilson. But he is hardly the first - or likely to be the last - juror to head home to experiment...to continue reading go here.

Judge to Question Juror About Book and Use of Alcohol

On Friday, a Florida trial judge will be questioning Mr. Dennis Demartin about his conduct while serving as a juror in the criminal trial of Paul Goodman. As some may know, Mr. Goodman, a millionaire polo mogul, was recently convicted of DUI manslaughter and vehicular homicide.  Attorneys for Mr. Goodman are attempting to get their client a new trial based on the actions of Mr. Demartin during trial.  Apparently, this juror not only wrote a book about his trial experience, but also conducted experiments with alcohol to better understand Mr. Goodman's state of mind at the time of the traffic accident.

 For more on this case go here and 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.

Which NYC Jurors Are Less Likely to Appear?

Jurors from Queens at least according to the article below.

NY Post: Qns. jurors lead city in no-shows

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Judge Accused of Not Relaying Juror Information to Defense Counsel

WPEC: John Goodman's attorney claims judge is hiding juror misconduct 

Attorneys for convicted polo mogul John Goodman have asked that his judge in a DUI manslaughter case be removed for allegedly concealing juror misconduct.

....Attorney Roy Black claims Judge Jeffrey Colbath has repeatedly hidden or ignored contact from sources claiming there was juror misconduct, including a letter from West Palm Beach public relations executive Toni May, who claimed to have been at a Rocco's Tacos bar in Palm Beach Gardens when a person claiming to be a Goodman juror expressed great frustration at juror misconduct. May, a former host of the "South Florida Today" show on WXEL, says she overheard the person's conversation and took notes via text message while dining at the bar with her husband...to continue reading go here.

To see the motion filed by defense counsel go 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

Federal Cockfighting Conviction Overturned Because of Juror's Wikipedia Research

In U.S. v. Lawson, the 4th Circuit Court of Appeals recently overturned the cockfighting convictions of several defendants. The reversal was due to juror misconduct in the form of online research.  Specifically, a juror (177), after a day of deliberations, went home and researched the term "sponsor" on Wikipedia.  "Sponsor" was an element of the animal fighting statute that the defendants were accused of violating.  Juror 177 also brought in the results of his research to the jury room and shared the material with other jurors. 

Upon learning of Juror 177's actions, the trial court held a hearing to investigate whether the guilty verdicts had been tainted.  The trial court ultimately determined that there was no reasonable possibility that the external influence caused actual prejudice.  Thus, the trial court denied the defense's motion for a new trial based on a violation of the 6th Amendment right to a fair trial.  In overturning the trial court's decision, the Court of Appeals determined that because the government has a "heavy obligation" to rebut the presumption of prejudice by showing that "there is no reasonable probability that the verdict was affected by the" external influence, [], the government's showing in this case, as a matter of law, does not satisfy that obligation. The Court of Appeals then went on to vacate the appellants' convictions under the animal fighting statute, and...award them a new trial with respect to those charges.

 

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.