I was called for jury duty recently, and as I waited for the selection process to begin, I marveled at the number of people thumbing away at their BlackBerrys, iPhones, and other web-enabled wireless devices. Although most of them were probably checking in with work or sending mundane messages about having a spouse pick up the kids from soccer practice, it struck me that if any of my fellow panelists were actually picked, precious little could be done to prevent them from accessing the wealth of information laying just a few clicks away.
As it turns out, jurors engaging in such digital digging is a growing problem nationwide, and the explosive growth in popularity of social networking sites like MySpace (more than 125 million users); Facebook (which has surpassed the 300 million mark worldwide); and Twitter (roughly 55 million users and counting) makes it more likely than ever that jurors will leave the privacy of the jury room for cyberspace. The problem with that is that unfiltered “facts” turned up by jurors—facts the other side has no opportunity to examine or rebut—could unfairly taint the trial process.
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 taking 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.”
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 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. 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 wasn’t 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.” As a result the trial judge was reversed, and a mistrial was granted.
Civil Judge Gena Slaughter of Dallas County’s 191st District Court views Internet searches by jurors as a threat. She gives specific instructions that jurors aren’t to do any online research, or to blog or otherwise communicate about the case while they serve. “They’re there for the truth as we tell it to them,” she says.
Although Slaughter, a web-savvy 1999 law school graduate, was accustomed to Googling the experts, parties, and lawyers involved in cases she handled as an attorney, she notes a growing realization of the importance of this issue among her older fellow jurists. She estimates that half of all of Dallas County’s civil district court judges issue specific instructions related to online activity, though the law doesn’t require it. “The law, unfortunately, does not track technology,” Slaughter says. “No ifs, ands, or buts: the rules need to be changed.”
Jurors as Citizen Journalists
in some instances, the problems begin before the trial even starts. In September 2009, the South Dakota Supreme Court ruled that a judge was justified in ordering a new trial in a product liability wrongful death case where a prospective juror, Shawn Flynn, had done Internet research before he even made it onto the jury.
The case was Sharon Russo, et al. v. Takata Corporation and TK Holdings. The plaintiffs claimed that seat belts manufactured by Takata were defective and had unlatched during a rollover accident. When Flynn received his jury duty summons, he did a Google search for Takata and TK Holdings, examining web pages for the company that previously was unknown to him. During jury selection, Flynn was never directly asked if he’d heard of Takata, and he didn’t volunteer information about his online searching. He wound up serving on the jury. Several hours into deliberations, Flynn responded to another juror’s question about whether Takata had notice of prior malfunctioning seat belt claims by disclosing his earlier Google searches, and stating that his cybersleuthing hadn’t turned up any other lawsuits. At least five other jurors heard his comments directly or were made aware of them during the deliberations. After the jury returned a verdict in favor of Takata, the plaintiffs sought a new trial, arguing that Flynn’s searches had affected the jurors’ decisions about whether the seat belt was defective and whether Takata had notice of any defects. The trial judge vacated the verdict, and the Supreme Court upheld his decision.
Controlling the flow of information into the jury room isn’t the only problem. Equally troubling is the information leaving the jury box. 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 in February. 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 one juror, Johnathan Powell, had posted eight messages, or “tweets,” about the case on social networking site Twitter. Although several of the Twitter messages were sent during 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 “Oh, and nobody 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.” 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.” The court denied Stoam’s efforts to set aside the verdict, saying that Powell’s actions didn’t violate Arkansas law, and that the Twitter messages didn’t demonstrate the juror was partial to either side before the verdict.
Texas courts haven’t been immune to the epidemic of Googling jurors. The 2006 case of Sharpless v. Sim involved a double-fatality accident caused by a truck driver. After the jury returned a verdict in favor of the victims’ family, the parties learned that one of the jurors had conducted her own independent Internet research of driver Sharpless’ driving record (which, along with evidence of Sharpless’ drug use, had been excluded from evidence). Lawyers for the driver and his employer sought a new trial on the grounds of jury misconduct, but the Dallas Court of Appeals ultimately denied their efforts since it wouldn’t have led to a different result (the juror in question had been in the minority finding for the trucker).
In 2009, the Dallas County defamation and business torts case of Business Results, et al. v. Dennis J. Edelman resulted in a plaintiff’s verdict, but a fairly small one. Plaintiff’s attorney Michael Hurst of Dallas’ Gruber, Hurst, Johansen & Hail believed that jury foreman Kim Clark had Googled one of the plaintiffs, discovering information about the value of the house he lived in and charities with which he was involved. Hurst sought a new trial, which was denied by Judge Emily Tobolowsky. Although the case later settled for a confidential sum while on appeal, Hurst remains sensitive to the potential havoc that online jurors can wreak. “My sincere hope is that judges will be even more vigilant about this in the future,” says the prominent Dallas litigator.
Educating Jury Pools
In an era when americans spend 17 percent of their online time on social networking or blogging sites, though—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 address the problem of the wired juror? A growing number of jurisdictions are revising their current boilerplate instructions admonishing jurors not to read about or do outside research on the case they happen to be hearing, in order to specifically reference the Internet and social media.
The Michigan Supreme Court changed that state’s rules as of September 2009 to require judges 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, Googling, blogging, etc.—are banned. Similar measures have been adopted or proposed in San Francisco Superior Court and in other jurisdictions.
Although Texas has yet to change its jury instructions, Criminal District Court Judge Andy Chatham told Fox 4 News, “Every judge I’ve talked to instructs the jurors: We know you have your cellphones. Use them to call your work. Use them to contact your friends and family, but don’t use them to research this case.”
Some observers argue that even more should be done, beyond revising the jury instructions. Psychologist, attorney, and jury consultant Robert Gordon of Dallas’ Wilmington Institute proposes educating prospective jurors about why outside research is forbidden. “Jurors go online because they can; the anonymity of the Internet makes it possible, and more alluring. You have to explain [why Internet research is harmful]; you have to actually talk to them.”
Gordon suggests that an educational film, similar to those viewed by potential jurors about jury duty’s civic importance, may be a solution. Thomas Melsheimer, managing principal in law firm Fish & Richardson’s Dallas office, agrees that educating potential jurors about the dangers of getting information online should begin when they receive their briefing in the central jury rooms. Otherwise, he warns, “the judicial system will find itself meting out justice, not via the common sense of citizens, but via tweets, text messages, and blog postings.”
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”—can indeed endanger constitutional guarantees of due process. And in an age in which digital intimacy is rapidly becoming the social norm, and where a jury room’s sanctity can be violated at the speed of a search engine, jurors venturing online will be an issue confronted by lawyers and judges for some time to come.
Just don’t Google the controversy if you’re called for jury duty.