Sep
20

Facebook, The Jury And The Lunch Truck

I've been in trial in a murder case for the past few weeks. Because we are in Connecticut, picking the jury inevitably lasts longer than presentation of evidence. It took eight days to pick jurors: under state law, we question each potential juror outside the presence of the others. We needed 12 jurors and three alternatives. Frankly, eight days was a little quicker than expected. We've now completed five days of evidence; both sides will rest either Monday or Tuesday of this week.

Each juror was warned when selected not to make inquiries about the case. Conduct no research, do not talk about the case, keep your own counsel regarding the proceedings. The warnings are repeated daily.

Imagine my surprise this week, then, when we were told that there might have been some errant communication by a juror on Facebook.

We checked out the lead, and it was true. Juror Number Ten had made a comment about the proceeding's intensity. The comment was posted at 11:50 a.m. during the very first day of evidence. One of the juror's readers cautioned the juror: "Aren't you supposed to avoid talking about the case?"

We learned of this information on Wednesday night. On Thursday, we brought it to the judge's attention. Our concern was that this comment was but the tip of the iceberg. Perhaps the juror was engaged in some sort of private dialogue about the case.

The juror was summoned into the courtroom for brief questioning, but only after the state demanded that we disclose how we had learned this: we refused to give up the source of the information, and were not ordered to do so. The state then suggested that someone had made inappropriate contact with the juror. It is hard to know what to make of that claim. If someone posts information on a social networking site, the information is hardly private, is it?

It turns out the juror had not spoken about the merits of the case; at least the juror did not acknowledge doing so. Still, it was unnerving that this near-misconduct would occur in the face of repeated admonishments.

But what of the admonisher? The day before the Facebook revelation, the trial judge himself acknowledged that he had briefly described the case to the operator of a lunch truck that parks outside the courthouse. During this conversation, a juror came for coffee. What was said? Did the juror hear something that might affect the outcome of the case? What did the judge say?

The juror was questioned. He heard nothing. His attitude toward the case was unchanged by anything that took place outside the courtroom. The lunch truck operator was questioned. All he heard was a brief description of the case, and that the judge had referred to it as a "crazy" case. I questioned the judge, who did not recall referring to the case as crazy, but merely as unusual. The judge is a good man, and he expressed deep regret at having, in effect, violated his own order.

In the case of both the juror and the judge, I was unable to unearth any evidence that suggests that arguable misconduct had any impact on the jury. Thus, even if the court's orders were violated, I cannot prove prejudice. But I did learn enough last week to make me wonder whether we kid ourselves when we recite the mantra that a properly instructed jury is presumed to the follow the law. How much confidence can we have in that maxim when even the judge violates the rule?

Perhaps it is time to revisit sequestration of jurors. Sure, it would be expensive to house and feed jurors during trial. But it also adds great expense to hospital care to assure sterile operating rooms.

It seems naive to believe that folks aren't doing independent research on the issues they are asked to decide. When even the judge has difficulty following the rules, how much confidence can we have that jurors are doing any better?
Comments (4)
Posted on September 23, 2009 at 12:47 am by Shalom Beck
DO jurors learn from Twelve ANgry Men? Henry Fond...
DO jurors learn from Twelve ANgry Men? Henry Fonda shows his fellow jurors that the murder weapon is not so rare by buying one himself.

Maybe independnet juror research should be sign as the "facts" equivalent of nullification. A rigt of the jurors that legal professionals would prefer they lakced.

Posted on September 21, 2009 at 10:53 am by verlasky
A San Diego lawyer recently persuaded a Sacramento...
A San Diego lawyer recently persuaded a Sacramento, CA judge to have jurors sign a declaration both before and after their service swearing they would not/did not consult any electronic media in connection with any fact or issue upon which they deliberated. The story is here: http://www3.signonsandiego.com/stories/2009/sep/13/revised-jury-instructions-do-not-use-internet/?uniontrib

Perhaps a violation of the promise is grounds in itself for punishment of the juror even if it had no discernable effect upon the trial’s outcome. But how will it be enforced? Confiscate the suspected juror’s electronic devices including those to which they might have had access so their electronic trail can be tracked? Who would do it? An aggrieved party or the district attorney or other public authorities? Should this be limited to capital cases? How many more people would be unwilling to serve if jury service portended a serious invasion of their privacy? The avenue of concern may be a new one, but it is an old problem.

In his closing argument in "To Kill a Mockingbird" Atticus Finch told the jury: "I'm no idealist to believe firmly in the integrity of our courts and in the jury system --- that is no ideal to me, it is a living, working reality. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up."

No matter how desperately we search for an alternative, we are left with ourselves to determine guilt or innocence. We are what we’ve become and we have to live with that.

Posted on September 20, 2009 at 10:47 pm by Jeff Gamso
Ultimately, isn't it the problem of the legal fict...
Ultimately, isn't it the problem of the legal fiction, and then the social fiction.

We choose to pretend that jurors follow instructions - not just the sort you address, but all of them, especially those that tell them to ignore evidence where objections were sustained or that was struck. The alternative is either that we cannot have instructions or cannot have jurors.

We choose to pretend that judges obey the evidence rules by, say, ignoring evidence that they improperly believe admissible.

We choose to believe that witnesses tell the truth as long as their lies are not too egregious.

We choose to believe that there is a presumption of innocence, that the Constitution counts, that the rules matter, that justice is both blind and fair, that truth will out, that it's always darkest before the dawn, and that it ain't over till it's over.

We choose to believe these things because the alternative is unacceptable. The work of the world must be done. We measure the social cost of the cure against the disease.

Modern medicine demands sterile hospital rooms where possible because the alternative is so clearly harmful. It's far less clear, as your own example demonstrates, that some forms of juror and judge misconduct are as likely to be dangerous or that the danger will routinely be as grave.

So here's a question: Is it more important to build in additional safeguards to make it harder for jurors to commit misconduct, and another set of safeguards to make it harder for judges to, or should we, in the alternative, acknowledge that our efforts are doomed to be only somewhat successful and that all those legal and social fictions are just that?

Should we, that is, try to change the truth or to acknowledge it?

Posted on September 20, 2009 at 10:54 am by Anonymous
Norm,
Judges ignore local rules without offering ...
Norm,
Judges ignore local rules without offering an explanation. For example, the court assigns judges to cases based on the location of the partys and the place where the incident (accident, etc.,) occurred, unless other considerations are necessary. The location cannot be changed without express approval of the chief judge.
Then, how can a presiding judge and a chief judge refuse to offer an explanation when this rule is violated? And why is it virtually impossible to find an answer to a question like this and a host of others?
Our system of justice is designed to serve the public. Yet, it seems we are often left out in the cold and treated with contempt. Yes, we can file complaints, but that misses the point. No other governmental body is so thoroughly unaccountable.
I contend it is taxation without representation.
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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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