As Jerry Seinfeld might have said, "What's the deal with jurors?" Why is it so hard to figure out that writing about your case on Facebook, or trying to "friend" the defendant, is a bad idea?
Juries are a big deal in our legal system. The Sixth Amendment to the U.S. Constitution guarantees "the right to a speedy and public trial, by an impartial jury" in all criminal cases. Our country has long considered the jury institution as a fundamental check on state power by the collective citizenry.
Yet to anyone reading the social media headlines, jurors have indeed made themselves a punchline in recent years. Somehow, no matter how many warnings they get about not talking to anyone else about a case they're deliberating on, they still think it's ok to write about it on a globally accessible social network.
Examples of Juror Misbehavior Abound
The cautionary tale in my neck of the woods is that of 20-year-old Hadley Jons. In September 2010, she wrote this on her Facebook status: “actually excited for jury duty tomorrow. It’s gonna be fun to tell the defendant they’re GUILTY. :P.” Hadley very quickly became a defendant herself in a contempt-of-court proceeding, but got off easy; the judge ordered her to write an essay on the importance of the Sixth Amendment.
Likewise. 22-year-old Jonathan Hudson of North Texas was held in contempt of court and served two days of community service after sending a friend request to the defendant in the case he was deciding while the case was pending.
Forty-year-old Joanne Fraill of the UK got it even worse. In June 2011, she was held in contempt and received an 8-month jail sentence after contacting the defendant on Facebook during the trial and discussing the case with him.
And it's not just the loose-lipped jurors who suffer as a result of this misconduct; the entire legal system pays. Fraill's misguided messages ended up collapsing a prosecution that cost millions of pounds to try. In June 2010, a juror's MySpace "friendship" with the criminal defendant resulted in the defendant's conviction being thrown out. The issue went all the way to the West Virginia Supreme Court, which held that the juror's failure to disclose the relationship violated the defendant's constitutional right to a fair and impartial jury. The Court then remanded the case back for a new trial. The huge expense of appeals and retrial certainly costs hundreds of thousands of dollars in legal costs and fees.
New Rules Meant to Keep Jurors in Line
The system is starting to respond proactively to this parade of follies. Effective February 1, 2011, my local federal court--the U.S. District Court for the Eastern District of Michigan--adopted Local Rule 47.1, which provides in relevant part:
(c) Parties, attorneys, and jurors learning of a violation of this rule must immediately notify the judicial officer presiding over the trial.
(d) Any person wilfully violating this rule is subject to sanctions.
Notice that the rule puts a burden not only on jurors, but also anyone who discovers their misconduct--namely, the lawyers in the case who, nowadays, are beginning to realize just how important it can be to monitor juror conduct online. Plenty of other courts have adopted similar rules.
California has taken it one step further. There, the state legislature recently adopted AB 141, under which jurors could face criminal contempt and jail time if they use the internet or social networks to research or communicate about any subject of their trial.
Not Every Juror Communication Ruins a Case
To be sure, defense attorneys are now on the lookout for juror posts they can seize upon in order to get unfavorable verdicts thrown out. So the one small consolation in all of this is that not every screw-up by a juror has gotten a decision reversed.
For example, in 2010, former Pennsylvania senator Vincent Fumo was convicted on 137 counts of fraud, tax evasion, and obstruction of justice. Yet during jury deliberations, one juror posted a number of comments about the case to Facebook and Twitter. They were relatively harmless comments that mostly related to the length of the trial and wondering when it would end. But a local news station reported them, leading to a hearing at which the judge decided not to disqualify the juror. Nevertheless, this gave Fumo another argument to raise in the appeal of his conviction.
In an August 2011 opinion, the U.S. Court of Appeals for the Third Circuit "enthusiastically endorsed" guidelines against such juror communications, and "strongly encouraged" district courts to warn jurors against them. Yet "it does not follow that every failure of a juror to abide by that prohibition will result in a new trial. Rather, as with other claims of juror partiality and exposure to extraneous information, courts must look to determine if the defendant was substantially prejudiced." Here, the juror's posts were "opaque" and "harmless ramblings" that did nothing to prejudice Fumo's rights.
Even more of a stretch were the arguments that Alexander Menendez made in the appeal of his convictions for identity theft and fraud. After the trial, he found the LinkedIn profile of one his jurors. It said that the juror had worked on "multiple bank reconciliations" and provided "Court Support Aide" services. This, Menendez claimed, somehow prejudiced him. Yet not even Menendez's lawyer could explain exactly why this information was relevant, so the U.S. Court of Appeals for the 11th Circuit had no difficulty rejecting that appeal in a September 22, 2011 opinion.
Like any other legal rule, the consequences for violating prohibitions against juror communications will vary according to the circumstances of each case. But this is one area of civic life where the propriety of using social media really shouldn't be ambiguous. So the next time you find yourself on a jury panel, do yourself a favor. Stay offline until the case is over.
