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Tuesday, March 17, 2009

Courts - "Mistrial by iPhone: Juries’ Web Research Upends Trials"

This ILB entry from March 14th was headed "Appeal says juror sent 'tweets' during $12.6M case ". This one from March 6th quoted a Washington Post story about reporters being allowed to use Twitter in the courtroom:

A couple of lawyers voiced concern about the possibility that a juror might visit the online site to read the posts from Ron Sylvester, a reporter for the Wichita Eagle, but U.S. District Judge J. Thomas Marten said jurors are always told to avoid newspaper, broadcast and online reports. "You either trust your jurors to live with the admonishment, or you don't," he said.
Today John Schwartz of the NY Times reports in a lengthy story:
Last week, a juror in a big federal drug trial in Florida admitted to the judge that he had been doing research on the case on the Internet, directly violating the judge’s instructions and centuries of legal rules. But when the judge questioned the rest of the jury, he got an even bigger shock.

Eight other jurors had been doing the same thing. The federal judge, William J. Zloch, had no choice but to declare a mistrial, wasting eight weeks of work by federal prosecutors and defense lawyers.

“We were stunned,” said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.

It might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.

Last week, a building products company asked an Arkansas court to overturn a $12.6 million judgment against it after a juror used Twitter to send updates during the civil trial.

And on Monday, defense lawyers in the federal corruption trial of a former Pennsylvania state senator, Vincent J. Fumo, demanded that the judge declare a mistrial after a juror posted updates on the case on Twitter and Facebook. The juror even told his readers that a “big announcement” was coming Monday. But the judge decided to let the trial continue, and the jury found Mr. Fumo guilty. His lawyers plan to use the Internet postings as grounds for appeal.” * * *

Information flowing out of the jury box can be nearly as much trouble as the information flowing in; jurors accustomed to posting regular updates on their day-to-day experiences and thoughts can find themselves on a collision course with the law. * * *

But juror research is a more troublesome issue than sending Twitter messages or blogging, Mr. Keene said, and raises new issues for judges in giving instructions.

“It’s important that they don’t know what’s excluded, and it’s important that they don’t know why it’s excluded,” [Douglas L. Keene, president of the American Society of Trial Consultants.] said. The court cannot even give a full explanation to jurors about research — say, to tell them what not to look for — and so instructions are usually delivered as blanket admonitions, he said.

The technological landscape has changed so much that today’s judge, Mr. Keene said, “has to explain why this is crucial, and not just go through boilerplate instructions.” And, he said, enforcement goes beyond what the judge can do, noting that “it’s up to juror 11 to make sure juror 12 stays in line.”

Posted by Marcia Oddi on March 17, 2009 02:08 PM
Posted to Courts in general