Judges confounded by jury's access to cyberspace

Panelists can do own research on Web, confer outside courthouse

December 13, 2009|By Andrea F. Siegel

It's TMI - too much information, in the language of the Internet, cell phone texts and social media posts.

Easy juror access to cyberspace is a growing problem for courts, whether it involves the criminal trial of Baltimore's mayor, an Anne Arundel County murder trial or a Florida drug case.

Last week, a Maryland appeals court upended a first-degree murder conviction because a juror consulted Wikipedia for trial information. Earlier this year, the appeals judges erased a conviction for three counts of assault because a juror did cyberspace research and shared the findings with the rest of the jury. In a third recent trial, a juror's admission to using his laptop for off-limits information jeopardized an attempted-murder trial.

On Friday, lawyers for Baltimore Mayor Sheila Dixon asked for a new trial in part because five of the jurors who convicted her of embezzlement Dec. 1 were communicating among themselves on Facebook during the deliberations period - and at least one of them received an outsider's online opinion of what the verdict should be. The "Facebook Friends," as Dixon's lawyers call them in court documents, became a clique that the lawyers argue altered jury dynamics.

While the world of Google and Twitter indulges boundless curiosity, judges do not.

Jurors are told to reach a verdict based only on what the judge allows to be admitted at the trial, and not research or discuss the case. Everything else is out, following complicated legal rules of evidence.

But information that a decade ago was inconvenient for inquisitive jurors to learn is now at their fingertips, on their cell phones, hand-held devices and laptops. Social media didn't exist. That is leading lawyers and judges to gnash their teeth over what they believe is a growing problem of jurors Web-surfing and posting their thoughts.

"If I were a Circuit Court judge, I'd be thinking this goes on all the time," said Byron L. Warnken, a law professor at the University of Baltimore. "People probably believe they can do it and not get caught."

The issue is not peculiar to Maryland. The American Bar Association noted that in March, an eight-week federal drug trial in Florida ended in a mistrial - not because one juror tattled to the judge that another had resorted to cyberspace searches about the case. After asking all 12 jurors, the judge learned that eight others had Web-surfed, too.

Appeals elsewhere are based partly on jurors' posts on Twitter and Facebook, according to the ABA, with worries about the lack of control and breach of trust.

Concern has grown so much nationwide that legal experts, including in Maryland, are rewriting model jury instructions to specifically tell jurors that online searches, texting and social media - the things they routinely do on laptops, cell phones and BlackBerrys - are out. Maryland's rules are expected to be published next year, and the ones on that subject are still being drafted.

Most judges specifically tell jurors not to look up anything connected to the case online, going beyond the warning to stay away from the news and not discuss the case with each other until deliberations start or with anyone else until the trial ends. Courts confiscate jurors' cell phones and hand-held devices during a trial - but short of sequestering jurors, judges cannot control jurors going online or texting at other times.

Jurors doing their own investigation and talking about their cases is not new.

"The problem is accentuated by the availability of information," said Baltimore County State's Attorney Scott D. Shellenberger.

A decade ago, jurors who wanted to see the neighborhood where a crime took place had to go there; now, they can see it on Google Earth from a BlackBerry. They can check out a defendant's criminal past on Web sites, witnesses on Facebook, and what users think about a company on consumer blogs - all information that probably was excluded from evidence. Sharing thoughts about a pending case now may include jurors' social media posts that anyone can read.

Last week, the Court of Special Appeals voided the 2008 first-degree murder conviction of Allan Jake Clark, accused of beating a man to death in 2007.

In the jury room, a bailiff in the Anne Arundel County Circuit Court trial had found printouts of Wikipedia explanations of scientific terms. Judge Paul A. Harris Jr. denied the defense's request for a mistrial.

Writing for a panel of the Court of Special Appeals that overturned the conviction, Judge Charles E. Moylan Jr. said that an "adverse influence on a single juror compromises the impartiality of the entire jury panel."

Particularly important was that the Wikipedia definitions discussed details of how the settling of blood after death can help determine the time and place of death - which were issues at Clark's trial.

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