In Chambers - Summer 2009

by John G. Browning
In Shawn Russo, et al. v. Takata Corporation (a Japanese seat belt manufacturer), and TK Holdings (its American subsidiary), the plaintiffs claimed that Takata’s seat belts were defective and had unlatched during a rollover accident. When one of the would-be jurors received his jury duty summons, he did a Google search for Takata and TK Holdings, examining the web pages for the two companies that were previously unknown to him. During jury selection, the panel member was never directly asked if he’d heard of either company, and he didn’t volunteer information about his online searching. He wound up serving on the jury. Several hours into deliberations, he responded to another juror’s question about whether Takata had notice of prior malfunctioning seat belts claims by disclosing his earlier Google searches, and stating that his cybersleuthing hadn’t turned up any other lawsuits. At least five other jurors either heard his comments directly, or were made aware of them during the rest of the deliberations. After the jury returned a verdict in favor of Takata and TK Holdings, plaintiffs’ counsel sought a new trial, arguing that the juror’s information should not have been brought into deliberations. The trial judge agreed, and granted the motion. The defendants appealed to South Dakota’s highest court, arguing in part that the fact the information was obtained before trial even began, and that this could have been discovered during voir dire, prevents it from being prejudicial. At press time, the South Dakota Supreme Court had yet to rule. [3] Controlling the flow of information into the jury room isn’t the only problem. Equally troubling is the flow of information leaving the jury box. In March 2009, during the federal corruption trial of former Pennsylvania state senator Vincent Fumo, a juror posted updates on the case on Twitter and Facebook, even hinting to readers of a “big announcement” before the verdict was issued. The judge denied the defendant’s motion for a mistrial, but after a guilty verdict was returned, Fumo’s lawyers announced plans to use the Internet postings as a basis for appeal. Building materials company Stoam Holdings and its owner, Russell Wright, recently sought a motion for a new trial after an Arkansas jury entered a $12.6 million verdict against them February 26, 2009. Wright was accused by two investors, Mark Deihl and William Nystrom, of defrauding them; Deihl’s lawyer, Greg Brown, described the building materials venture as “nothing more than a Ponzi scheme.” Shortly after the verdict, Wright’s attorneys found out that a juror, Jonathan Powell, a 29-year-old manager at a Wal-Mart photo lab, had posted eight messages, or “tweets,” about the case on the social networking site Twitter. (Twitter, created in 2006, is a social networking/microblogging service that enables users to not only send updates – text-based posts of up to 140 characters in length – but also follow updates from other users). Although several of the Twitter messages were sent during voir dire (jury selection), the ones that attracted the most attention were those actually sent shortly before the verdict was announced. In one such “tweet,” Powell wrote “Ooh and don’t buy Stoam. Its bad mojo and they’ll probably cease to exist, now that their wallet is 12m lighter.” In another, Powell said “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.” [4] One of the lawyers for Stoam and Wright maintained that the messages demonstrated not only that this juror was not impartial and had conducted outside research about the issues in the case, but also that Powell “was predisposed toward giving a verdict that would impress his audience.” After the trial, Powell continued his “tweets” and kept his sense of humor. On the day he was supposed to testify about his online activities, Powell posted the message “Well, I’m off to see a judge. Hope they don’t lock me under the jail, and forget about me for four days.” As it turns out, Powell had nothing to worry about. Noting that Arkansas law requires defendants to prove that outside information found its way into the jury room and influenced the verdict, not that information from the jury panel made its way out, the court held in April that the juror’s actions didn’t violate any rules, and that the Twitter messages did not demonstrate any evident of Powell being partial to either side. After the judge denied the defense’s effort to set aside the verdict, Powell made perhaps his most prescient observation of the trial, warning that, “The courts are just going to have to catch up with the technology.” to next column	In an era in which nearly 60% of American Internet users have a profile on a social networking site, and where researching a patent claim or a medical disorder can be accomplished with a few keystrokes, what can judges do to adapt to the evolving legal landscape and combat the dangers of the online juror? One possible approach, advocated by a growing number of Texas judges, is to go beyond the current boilerplate instructions and specifically include references to the Internet and social media as part of the standard admonitions to jurors not to read about or do any outside research on the case they happen to be hearing. Faced with a situation in which technology has far outpaced the court rules, a number of states have actually changed their rules to address the problem of the online juror. Following a recent ruling by the Michigan Supreme Court, effective September 1, 2009, Michigan judges will be required for the first time to instruct jurors not to use any handheld device, such as iPhones or Blackberrys, while in the jury box or during deliberations. All electronic communications by jurors during trial – “tweets” on Twitter, text messages, Googling, etc. – will be banned. [5] As we survey the mistrials and overturned verdicts dotting the legal landscape due to jurors’ online activities, it becomes painfully evident that the easy access and global reach of wireless technology is in danger of transforming the jury box into Pandora’s box. John Adams once wrote that it is “not only [the juror’s] right, but his duty, in that case, to find the verdict according to his best understanding, judgment, and conscience.” If the conscience of the jury is to remain the yardstick of justice in our information-driven 21^st century, in which people blog, “tweet,” text, and otherwise share their experiences with extended social networks, then courts must do a better job of instructing jurors about the “off limits” nature of such electronic communications. In an age in which digital intimacy is rapidly becoming the social norm and where the sanctity of the jury room can be violated at the speed of a search engine, jurors need to know not only that courts remain the last bastion of controlling access to information – they also need to know why. For our system of justice to function, an individual’s constitutional rights to due process, to a jury trial, and to confront the witnesses and evidence against him must be zealously protected. Allowing jurors to consider Internet “evidence” that hasn’t been subjected to scrutiny by both sides to a case, or to be influenced by the postings of Facebook “friends” or Twitter “followers,” undermines this protection. Social networking, the Internet, and the iPhone or Blackberry may have altered our daily lives with their innovations, but they shouldn’t alter our principles. For more information contact: John G. Browning Gordon & Rees, LLP 2100 Ross Avenue Suite 2800 Dallas, TX 75201 Phone: (214) 231-4660 [1] Paul Sussman, “Curious Jurors Google a Mistrial,” The Connecticut Law Tribune, March 25, 2009 . [2] Wardlaw v. Maryland, __ Md. App. __ at pp. 10-11 (May 8, 2009) [3] http://www.sdjudicial.com (last visited July 31, 2009); Case No. 24726 [4] Jon Gambrell, “Appeal Says Juror Sent ‘Tweets’ During 12.6M Case,” Associated Press (March 13, 2009) [5] Tresa Baldas, “For Jurors in Michigan, No Tweeting (or texting, or Googling) Allowed,” The National Law Journal, July 1, 2009.
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Online Dangers

by John G. Browning

In Shawn Russo, et al. v. Takata Corporation (a Japanese seat belt manufacturer), and TK Holdings (its American subsidiary), the plaintiffs claimed that Takata’s seat belts were defective and had unlatched during a rollover accident. When one of the would-be jurors received his jury duty summons, he did a Google search for Takata and TK Holdings, examining the web pages for the two companies that were previously unknown to him. During jury selection, the panel member was never directly asked if he’d heard of either company, and he didn’t volunteer information about his online searching. He wound up serving on the jury. Several hours into deliberations, he responded to another juror’s question about whether Takata had notice of prior malfunctioning seat belts claims by disclosing his earlier Google searches, and stating that his cybersleuthing hadn’t turned up any other lawsuits. At least five other jurors either heard his comments directly, or were made aware of them during the rest of the deliberations.

After the jury returned a verdict in favor of Takata and TK Holdings, plaintiffs’ counsel sought a new trial, arguing that the juror’s information should not have been brought into deliberations. The trial judge agreed, and granted the motion. The defendants appealed to South Dakota’s highest court, arguing in part that the fact the information was obtained before trial even began, and that this could have been discovered during voir dire, prevents it from being prejudicial. At press time, the South Dakota Supreme Court had yet to rule. [3]

Controlling the flow of information into the jury room isn’t the only problem. Equally troubling is the flow of information leaving the jury box. In March 2009, during the federal corruption trial of former Pennsylvania state senator Vincent Fumo, a juror posted updates on the case on Twitter and Facebook, even hinting to readers of a “big announcement” before the verdict was issued. The judge denied the defendant’s motion for a mistrial, but after a guilty verdict was returned, Fumo’s lawyers announced plans to use the Internet postings as a basis for appeal.

Building materials company Stoam Holdings and its owner, Russell Wright, recently sought a motion for a new trial after an Arkansas jury entered a $12.6 million verdict against them February 26, 2009. Wright was accused by two investors, Mark Deihl and William Nystrom, of defrauding them; Deihl’s lawyer, Greg Brown, described the building materials venture as “nothing more than a Ponzi scheme.”

Shortly after the verdict, Wright’s attorneys found out that a juror, Jonathan Powell, a 29-year-old manager at a Wal-Mart photo lab, had posted eight messages, or “tweets,” about the case on the social networking site Twitter. (Twitter, created in 2006, is a social networking/microblogging service that enables users to not only send updates – text-based posts of up to 140 characters in length – but also follow updates from other users). Although several of the Twitter messages were sent during voir dire (jury selection), the ones that attracted the most attention were those actually sent shortly before the verdict was announced.

In one such “tweet,” Powell wrote “Ooh and don’t buy Stoam. Its bad mojo and they’ll probably cease to exist, now that their wallet is 12m lighter.” In another, Powell said “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.” [4] One of the lawyers for Stoam and Wright maintained that the messages demonstrated not only that this juror was not impartial and had conducted outside research about the issues in the case, but also that Powell “was predisposed toward giving a verdict that would impress his audience.” After the trial, Powell continued his “tweets” and kept his sense of humor. On the day he was supposed to testify about his online activities, Powell posted the message “Well, I’m off to see a judge. Hope they don’t lock me under the jail, and forget about me for four days.”

As it turns out, Powell had nothing to worry about. Noting that Arkansas law requires defendants to prove that outside information found its way into the jury room and influenced the verdict, not that information from the jury panel made its way out, the court held in April that the juror’s actions didn’t violate any rules, and that the Twitter messages did not demonstrate any evident of Powell being partial to either side. After the judge denied the defense’s effort to set aside the verdict, Powell made perhaps his most prescient observation of the trial, warning that, “The courts are just going to have to catch up with the technology.”

to next column

In an era in which nearly 60% of American Internet users have a profile on a social networking site, and where researching a patent claim or a medical disorder can be accomplished with a few keystrokes, what can judges do to adapt to the evolving legal landscape and combat the dangers of the online juror? One possible approach, advocated by a growing number of Texas judges, is to go beyond the current boilerplate instructions and specifically include references to the Internet and social media as part of the standard admonitions to jurors not to read about or do any outside research on the case they happen to be hearing. Faced with a situation in which technology has far outpaced the court rules, a number of states have actually changed their rules to address the problem of the online juror. Following a recent ruling by the Michigan Supreme Court, effective September 1, 2009, Michigan judges will be required for the first time to instruct jurors not to use any handheld device, such as iPhones or Blackberrys, while in the jury box or during deliberations. All electronic communications by jurors during trial – “tweets” on Twitter, text messages, Googling, etc. – will be banned. [5]

As we survey the mistrials and overturned verdicts dotting the legal landscape due to jurors’ online activities, it becomes painfully evident that the easy access and global reach of wireless technology is in danger of transforming the jury box into Pandora’s box. John Adams once wrote that it is “not only [the juror’s] right, but his duty, in that case, to find the verdict according to his best understanding, judgment, and conscience.” If the conscience of the jury is to remain the yardstick of justice in our information-driven 21^st century, in which people blog, “tweet,” text, and otherwise share their experiences with extended social networks, then courts must do a better job of instructing jurors about the “off limits” nature of such electronic communications. In an age in which digital intimacy is rapidly becoming the social norm and where the sanctity of the jury room can be violated at the speed of a search engine, jurors need to know not only that courts remain the last bastion of controlling access to information – they also need to know why. For our system of justice to function, an individual’s constitutional rights to due process, to a jury trial, and to confront the witnesses and evidence against him must be zealously protected. Allowing jurors to consider Internet “evidence” that hasn’t been subjected to scrutiny by both sides to a case, or to be influenced by the postings of Facebook “friends” or Twitter “followers,” undermines this protection.

Social networking, the Internet, and the iPhone or Blackberry may have altered our daily lives with their innovations, but they shouldn’t alter our principles.

For more information contact:
John G. Browning
Gordon & Rees, LLP
2100 Ross Avenue
Suite 2800
Dallas, TX 75201
Phone: (214) 231-4660

[1] Paul Sussman, “Curious Jurors Google a Mistrial,” The Connecticut Law Tribune, March 25, 2009 .

[2] Wardlaw v. Maryland, __ Md. App. __ at pp. 10-11 (May 8, 2009)

[3] http://www.sdjudicial.com (last visited July 31, 2009); Case No. 24726

[4] Jon Gambrell, “Appeal Says Juror Sent ‘Tweets’ During 12.6M Case,” Associated Press (March 13, 2009)

[5] Tresa Baldas, “For Jurors in Michigan, No Tweeting (or texting, or Googling) Allowed,” The National Law Journal, July 1, 2009.

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