In Chambers - Summer 2009

by John G. Browning
I was called for jury duty recently, and as I waited patiently with my fellow panelists for the selection process to begin, I couldn’t help but marvel at the number of people pounding away at Blackberrys, iPhones and other web-enabled wireless devices. While most of them were probably sending innocent, mundane messages about running late or having a spouse pick up the kids, it occurred to me that if any of these panelists were actually picked (fortunately, the criminal docket featured all plea bargains, so the entire pool was dismissed), precious little could be done to prevent any of them from accessing the wealth of information at their fingertips. As it turns out, jurors engaging in such digital digging is a growing problem, and the explosive growth in popularity of social networking sites like MySpace (over 150 million users); Facebook (which just passed the 200 million mark worldwide), and Twitter (the third most-used social network) makes it more likely than ever that jurors will leave the privacy of the jury room for cyberspace. Consider the following recent examples: In November 2008, a juror on a child abduction/sexual assault trial in Lancastershire, England, was torn about how to vote. So she posted details of the case online for her Facebook “friends” and announced that she would be holding a poll. After the court was tipped off, the woman was dismissed from the jury. In March, 2009, an eight-week-long federal drug trial involving Internet pharmacies was disrupted by the revelation that a juror had been doing research online about the case, including looking into evidence that the court had specifically excluded. When U.S. District Judge William Zloch questioned other members of the jury, he was astonished to learn that eight other jurors had been doing the same thing, including running Google searches on the lawyers and the defendants, reading online media coverage of the case and consulting Wikipedia for definitions. After the judge declared a mistrial, defense attorney Peter Raben expressed his shock at the jurors’ online activities. “We were stunned,” he said. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head”. [1] In June 2007, a California appellate court reversed the burglary conviction of Donald McNeely when it was revealed that the foreman of the jury had committed misconduct and deprived the defendant of a fair trial by discussing deliberations on his blog. The foreman, a lawyer who had identified himself as a project manager for his company because it was “[m]ore neutral than lawyer,” blogged about McNeely, his fellow jurors and their discussions, particularly one juror who was “threatening to torpedo two of the counts in his quest for tyrannical jurisprudence.” To next column	In November 2007, the Supreme Court of Appeals of West Virginia reversed the conviction of Danny Cecil for felony sexual abuse of two teenage girls. Two members of the jury had looked up the MySpace profile of one of the alleged victims, and shared its contents with other jurors. Even though it found that the online sleuthing had not necessarily revealed anything relevant, the court held that “the mere fact that members of a jury in a serious felony case conducted any extrajudicial investigation on their own is gross juror misconduct which simply cannot be permitted.” As the court further noted, “Any challenge to the lack of the impartiality of a jury assaults the very heart of due process.” In the May 2009 case of Zarzine Wardlaw v. State of Maryland, Maryland’s Special Court of Appeals looked at the circumstances behind the conviction of a man charged with rape, child sexual abuse and incest involving his 17-year-old daughter. During the trial, a therapeutic behavioral specialist had testified about working with the victim on behavioral issues such as anger management and had opined that the girl suffered from several psychological disorders, including ODD (oppositional defiant disorder). A juror took it upon herself to research ODD online, discovered that lying was a trait associated with the illness, and apparently shared this knowledge with the other jurors. Another member of the jury sent a note informing the judge about this development. After reading the note to counsel for both sides, the judge denied a defense motion for a mistrial and simply reminded the entire jury of his instructions not to research or investigate the case on their own “whether it’s on the Internet or in any other way.” The appellate court found that this was not enough, and that since the victim’s credibility was a crucial issue, the juror’s Internet research and reporting her findings to the rest of the jury “constituted egregious misconduct” that could well have been “an undue influence on the rest of the jurors.” [2] As a result, the trial judge was reversed and a mistrial was granted. Meanwhile, the South Dakota Supreme Court is wrestling with the issue of whether or not a new trial is warranted in a case where a potential juror “Googled” the defendants in a product liability trial – before the trial ever began. to next page
Page One \| Page Two

Online Dangers

by John G. Browning

I was called for jury duty recently, and as I waited patiently with my fellow panelists for the selection process to begin, I couldn’t help but marvel at the number of people pounding away at Blackberrys, iPhones and other web-enabled wireless devices. While most of them were probably sending innocent, mundane messages about running late or having a spouse pick up the kids, it occurred to me that if any of these panelists were actually picked (fortunately, the criminal docket featured all plea bargains, so the entire pool was dismissed), precious little could be done to prevent any of them from accessing the wealth of information at their fingertips.

As it turns out, jurors engaging in such digital digging is a growing problem, and the explosive growth in popularity of social networking sites like MySpace (over 150 million users); Facebook (which just passed the 200 million mark worldwide), and Twitter (the third most-used social network) makes it more likely than ever that jurors will leave the privacy of the jury room for cyberspace.

Consider the following recent examples:

In November 2008, a juror on a child abduction/sexual assault trial in Lancastershire, England, was torn about how to vote. So she posted details of the case online for her Facebook “friends” and announced that she would be holding a poll. After the court was tipped off, the woman was dismissed from the jury.
In March, 2009, an eight-week-long federal drug trial involving Internet pharmacies was disrupted by the revelation that a juror had been doing research online about the case, including looking into evidence that the court had specifically excluded. When U.S. District Judge William Zloch questioned other members of the jury, he was astonished to learn that eight other jurors had been doing the same thing, including running Google searches on the lawyers and the defendants, reading online media coverage of the case and consulting Wikipedia for definitions. After the judge declared a mistrial, defense attorney Peter Raben expressed his shock at the jurors’ online activities. “We were stunned,” he said. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head”. [1]
In June 2007, a California appellate court reversed the burglary conviction of Donald McNeely when it was revealed that the foreman of the jury had committed misconduct and deprived the defendant of a fair trial by discussing deliberations on his blog. The foreman, a lawyer who had identified himself as a project manager for his company because it was “[m]ore neutral than lawyer,” blogged about McNeely, his fellow jurors and their discussions, particularly one juror who was “threatening to torpedo two of the counts in his quest for tyrannical jurisprudence.”

To next column

In November 2007, the Supreme Court of Appeals of West Virginia reversed the conviction of Danny Cecil for felony sexual abuse of two teenage girls. Two members of the jury had looked up the MySpace profile of one of the alleged victims, and shared its contents with other jurors. Even though it found that the online sleuthing had not necessarily revealed anything relevant, the court held that “the mere fact that members of a jury in a serious felony case conducted any extrajudicial investigation on their own is gross juror misconduct which simply cannot be permitted.” As the court further noted, “Any challenge to the lack of the impartiality of a jury assaults the very heart of due process.”
In the May 2009 case of Zarzine Wardlaw v. State of Maryland, Maryland’s Special Court of Appeals looked at the circumstances behind the conviction of a man charged with rape, child sexual abuse and incest involving his 17-year-old daughter. During the trial, a therapeutic behavioral specialist had testified about working with the victim on behavioral issues such as anger management and had opined that the girl suffered from several psychological disorders, including ODD (oppositional defiant disorder). A juror took it upon herself to research ODD online, discovered that lying was a trait associated with the illness, and apparently shared this knowledge with the other jurors. Another member of the jury sent a note informing the judge about this development. After reading the note to counsel for both sides, the judge denied a defense motion for a mistrial and simply reminded the entire jury of his instructions not to research or investigate the case on their own “whether it’s on the Internet or in any other way.” The appellate court found that this was not enough, and that since the victim’s credibility was a crucial issue, the juror’s Internet research and reporting her findings to the rest of the jury “constituted egregious misconduct” that could well have been “an undue influence on the rest of the jurors.” [2] As a result, the trial judge was reversed and a mistrial was granted.

Meanwhile, the South Dakota Supreme Court is wrestling with the issue of whether or not a new trial is warranted in a case where a potential juror “Googled” the defendants in a product liability trial – before the trial ever began.

to next page

Page One | Page Two