Judges fear social media jeopardizing fair trials

 The Columbus Dispatch
By  Kathy Lynn Gray  and  John Futty

Monday September 10, 2012 7:49 AM

Report from jury duty: defendant looks like a murderer. GUILTY. Waiting for opening remarks.
That tweet from comedian Steve Martin, followed by a string of other “jury duty” tweets, was met with laughter by some and alarm by others. Was he really tweeting from the jury box?
He wasn’t; he was just joking. But judges aren’t amused in the least if real jurors take to Twitter. Or to Facebook, Google or other social media or search engines.
A Franklin County jury was deliberating a murder case last week when a juror announced that she had looked up the definition of a legal term on her tablet computer. Before she could read it aloud, other jurors told her she had violated the judge’s order not to do outside research. Less than two hours later, Common Pleas Judge Tim Horton had removed the woman from the jury.
It was the second time in 15 months that a Franklin County judge had dismissed a juror for using an electronic device to research a case.
“We’re all very concerned. These are just the times it gets reported. What about the ones who are doing it and not telling anyone?” said Charles Schneider, the administrative judge for Common Pleas Court.
Judges in federal, state and municipal courts always have warned jurors not to investigate a case on their own. But the instant access that cellphones and personal computers provide to the Internet makes it easier than ever for jurors to violate those instructions and imperil a defendant’s Sixth Amendment right to a fair trial.
In a national survey last year, 6 percent of federal district judges said one or more jurors in their cases had used social media to communicate during a trial or deliberations.
To combat that, nearly 30 percent of judges confiscated phones and other electronic devices during jury deliberations, and 22 percent did so at the start of each day of trial, the survey found. The majority only warned jurors verbally not to use social media.
“Repeat, repeat, repeat” is the mantra.
Instructions written by committees of the Ohio State Bar Association and the Ohio Judicial Conference in 2010 suggest that judges warn jurors before a trial starts, at the end of each day of the trial, at the end of the trial and whenever else they find it necessary.
U.S. District Judge Edmund A. Sargus Jr. does that and specifically mentions Twitter and Facebook.
“A lot of people would just think, ‘I Facebook about everything else I’m doing, I’ll Facebook about this trial, too,’  ” Sargus said. But his experience has been that once jurors are told to avoid social media and he explains why, they do.
“Jurors here take the job very seriously,” he said. Stephanie Rawlings, the senior law clerk for District Judge George C. Smith, said the prevalence of cellphones has complicated efforts to reduce jurors’ exposure to information about a trial.
“We haven’t heard of any problems that have arisen,” she said. “But whether people follow the judge’s orders, who knows?”
In some states, such as California, jurors can be jailed on contempt charges if they post information about a trial on social media.
Last September, Franklin County Common Pleas Judge Daniel T. Hogan fined a juror $900 for using his cellphone to find a defendant’s criminal record and share it with another juror.
“There needs to be an example made, as publically as possible, that this behavior won’t be tolerated,” Hogan said.
But a study in the March edition of the University of Illinois Law Review found that it is “uncommon for jurors to face any consequences beyond dismissal” for Internet misconduct. It advocated penalizing violators.
In last week’s case, Judge Horton didn’t penalize the juror beyond dismissing her. The woman had indicated during questioning by the judge and attorneys that she was under a psychiatrist’s care and “seemed to have some personal issues,” Horton said. “In certain cases, strong penalties might be warranted. This wasn’t one to treat as malicious or like she was trying to screw up the process.”



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