When jurors Google

Easy access to news, criminal records and legal jargon raises questions about courtroom integrity

July 27, 2008|By Julie Bykowicz | Julie Bykowicz,Sun reporter

Some of the grand jurors investigating allegations of misconduct by Baltimore Mayor Sheila Dixon have grown tired of the probe and its near-daily media coverage, one grand juror told a Sun reporter last month.

The exchange provoked a cringe: grand jurors - or any jurors - are not supposed to expose themselves to news accounts of the cases they are assigned.

And it raises a question that goes to the heart of the integrity of the criminal justice system: are jurors routinely violating their oath not to research cases - at home on their computers, in the jury deliberation room on the iPhones, by glancing at news reports - on their own?

At the start of any civil or criminal jury trial, the judge reads a set of instructions. Among the admonitions: "Do not research or investigate the case on your own. You must base your decision only on the evidence presented in this courtroom."

Local judges and attorneys believe that the system works well and that most jurors do follow the rules.

Richard Gabriel, a trial consultant for 23 years, isn't so sure.

Americans are used to having information at their fingertips, he says, and it can be difficult to set aside the desire to know everything when one takes the oath of a juror.

"It's mainly pure faith that keeps the system going," he says.

Although Gabriel said his research has shown that "a huge majority" of jurors follow the instructions of the court and refrain from doing their own research, "I don't doubt a small percentage of jurors who, given a consuming desire to do the right thing in deciding a case, do a little bit of research on their own."

The theory behind forbidding research outside the courtroom is to ensure that jurors receive only information that has been carefully vetted by attorneys on both sides and passes judicial muster for fairness and accuracy.

Of particular importance is the bedrock principle of deciding guilt or innocence in a particular case without making a judgment on the defendant's past conduct. In May, the Palm Beach Post reported that a man convicted of manslaughter in the shooting death of his neighbor might get a new trial because of allegations of jury misconduct.

Among other issues, one juror supposedly used his iPhone to research the meaning of the word "prudence" during deliberations.

The verdicts in the 2001 trial of terrorism suspects in the African embassy bombings might have been compromised because of inappropriate jury behavior, including a juror who allegedly researched a legal concept, "aiding and abetting," on the Internet, The New York Times reported in 2003.

Here in Baltimore, Circuit Judge John C. Themelis remembers a fellow judge telling him that he had declared a mistrial in a case where a juror had used the Internet to research a defendant's criminal record.

Themelis, a judge for 24 years, says the advent of the Internet and hand-held devices that can access the Internet have exacerbated the age-old problem of jurors investigating cases for themselves. Themelis oversaw the jury pool for about three years, until the beginning of this year.

Judges and lawyers have long worried about jurors asking around about cases they hear or going to crime scenes to check things out for themselves. The Internet adds a new dimension: empowering them with easy access to a person's criminal record, to news articles about the case and to information about the individuals involved.

Longtime Baltimore attorney William H. Murphy Jr., who has tried more than 300 criminal and civil jury trials, says he and his colleagues have swapped stories about jurors "Googling" them to learn about their firms.

"As a practical matter, even if jurors are instructed not to do it, many will do it anyway," he says.

"There's almost no possibility they will be caught unless they discuss it with fellow jurors and it is reported."

Themelis and his successor as judge in charge of jurors, Robert B. Kershaw, both said they firmly believe that even if one juror strays, the others will report the behavior, protecting the integrity of the system.

Kershaw recalled a case where a juror wrote a note to him saying that another juror had researched something on the Internet during a criminal trial. Kershaw said he consulted with the attorneys and gave the jury a "curative instruction," admonishing them again not to consider anything they might have learned about the case outside of the courtroom.

He said that experience launched an internal debate about whether he should specifically mention the Internet as a no-no in his pattern jury instructions.

Although judges and attorneys have varied opinions about this - some have begun mentioning it, but many have not - Kershaw said he decided to refrain from mentioning it.

"The pattern instruction could not be clearer," he said. "And I thought that mentioning the Internet might give some jurors an 'aha!' moment.

"Mentioning it, I think, would only increase the problem."


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