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Jan 25, 2010

Courts In Maryland, New Jersey, Florida Declare Mistrials After Juror Internet Research

(cross posted at the Citizen Media Law Project)  
Appeals courts in Maryland and New Jersey appear to be the first to reverse jury verdicts because of social media use by jurors during trial.

I wrote about the issue of jurors' use of social media back in May, and reported: "there do not appear to be any cases in which courts overturned a jury verdict or ordered a new trial because of use of social media by jurors during trial."

[More courts, however, are adopting rules and jury instructions to curb this growing problem.  See this blog post and associated comments for details.]


Maryland Cases

It turns out that the Maryland Court of Special Appeals had done just that two weeks prior to my post, and did it again seven months later.

In Wardlaw v. State, No. 1478/07, 185 Md.App. 440 (Md. Ct. Special App. May 8, 2009), the trial court had instructed the jurors not to investigate the case in any way beyond the evidence presented in court.  (As noted in this post, such instructions—often with specific reference to Internet research—are becoming more common.)  Yet, despite this admonition, a juror in the trial of Zarzine Wardlaw used the Internet to independently research the definition of "oppositional defiant disorder," and whether lying is a part of the illness.  During the trial, a therapist testified that she had diagnosed a key witness as having the disorder.

The trial judge learned of the research in a note from the jury, and Wardlaw's attorney moved for a mistrial.  Instead, the judge instructed the jury that it could base its verdict only on the evidence presented in court.  But 30 minutes after the jury resumed deliberations, both the prosecutor and defense counsel moved for a mistrial based on the juror's Internet research.  The trial court denied this motion.

The appellate court, in a unanimous, three-judge decision, concluded that the trial court's failure to question the jurors about the influence of the Internet research required a reversal:
[T]he juror’s internet research of ODD, and her subsequent reporting of her finding, rightly or wrongly, that lying is associated with the disorder, constituted egregious misconduct. . . .  Given the fact that his misconduct came to light while the jury was still deliberating, and was presumptively prejudicial to either the State or appellant, it was incumbent upon the trial court to voir dire the jurors to determine whether they could still render an impartial verdict based solely on the evidence presented at trial. . . .
In this case, the trial court did not voir dire the jury, but instead gave a curative instruction admonishing the jury not to conduct outside research and reminding them that they were to render a verdict based only on the evidence presented at trial. It was error for the court to do so, because a specific inquiry into the thought processes of the jury was the only method of ascertaining whether the information about ODD, acquired through the juror’s internet research, improperly and irreparably influenced the jury’s deliberative process to the prejudice of appellant or the State.
Wardlaw v. State, slip op. at 10-11.

A different three-judge panel of the same court reached the same conclusion in Allan Jake Clark v. State of Maryland, No. No. 0953/08 (Md. Ct. Special App. Dec. 3, 2009) (unreported; listed here).

In Clark, a bailiff discovered printouts from Wikipedia articles in the jury room.  The printouts, which were entries on "livor mortis" and "algor mortis," touched on an issue in the murder case—namely, how the time and place of death may be determined by looking at how blood settles in a body.  The court questioned the jurors and determined that only one juror had done outside research and seen the articles.

The jury convicted Clark of first-degree murder, and the trial judge denied a defense motion for a mistrial.
The appeals court reversed in another unanimous decision, holding that an "adverse influence on a single juror compromises the impartiality of the entire jury panel" (quoted in The Baltimore Sun). 

New Jersey

A New Jersey appeals court panel reached a similar conclusion in July 2009.  In State of New Jersey v. Scott, 2009 N.J. Super. Unpub. LEXIS 1901 (N.J. App. Div. July 20, 2009), certification denied, 2009 N.J. LEXIS 1370 (N.J., Nov. 9, 2009), the Superior Court of New Jersey, Appellate Division, reversed the convictions of three cousins on aggravated manslaughter charges. 

During the trial, one of the jurors was very emotional, leaning forward and apparently crying.  Queried in chambers, the juror said that she could continue.  But after the jury began deliberations, another juror left a phone message for the trial judge over a weekend break, claiming that the emotional juror was acting improperly. 

Questioned the following Monday, the complaining juror said that the emotional juror had announced to her fellow jurors that she had researched the defendants, the victims, and the possible sentence for conviction on the Internet, but had not revealed the results of her research.  The complaining juror added that the emotional juror had also read—and tried to hide—a newspaper in the jury room, and had announced at the start of deliberations that she had already made her decision, and held up a piece of paper with her decision.

When questioned, the emotional juror denied doing research on the Internet and said that she had seen only a headline about the case in the newspaper.  And, according to the appellate court, "[s]he also admitted to holding up a piece of paper with 'something written on it' but claimed that she was 'told to' do that 'specific thing.'"  New Jersey v. Scott, slip op., para. 34.

The trial judge then questioned the other ten jurors. Four jurors confirmed that the emotional juror said either that she had done research online or knew where such research could be done online. But only one of these jurors recalled the emotional juror mentioning anything she found in that research; the juror said that she had mentioned the possible sentence for the original murder charges in the case.  One juror remembered that someone had mentioned that information about the case was available online, but did not recall who had made this statement. And the remaining three jurors did not recall hearing anything about Internet research. 

Based on the emotional juror's failure to admit her apparent violation of the court's instructions,  the trial court replaced that juror with an alternate.  But he denied a mistrial, holding that the remaining jurors were not tainted.

The appeals court disagreed with this assessment, concluding that "juror 14's misconduct tainted the jury as a whole."  New Jersey v. Scott, slip op., para. 52. Citing New Jersey precedent holding that "[a] deliberating juror may not be discharged and replaced with an alternate unless the record 'adequately establish[es] that the juror suffers from an inability to function that is personal and unrelated to the juror's interaction with the other jury members,'" State v. Jenkins, 182 N.J. 112, 124-25 (2004), the appeals court held that in this case "a mistrial should have been declared. Failure to do so constitutes reversible error. The error requires a new trial."  New Jersey v. Scott, slip op., para. 52

Florida Federal Court

In another case, a federal district court judge declared a mistrial in a complex drug prosecution after discovering that 10 of the 12 jurors had done independent Internet research on the case. U.S. v. Frank Hernandez, Crim. No. 07-60027 (S.D. Fla. mistrial declared March 10, 2009).  As in the other cases, the jurors' research came to light through questioning by the judge, after one juror sent a note saying that another juror had done research.  (See the Broward/Palm Beach New Times coverage).

A Growing Trend . . .

As noted previously, the use of social media by jurors—to do their own research, or to share their impressions and opinions of the cases in which they sit—is only likely to increase.  

And courts will have to deal with it through practical solutions, such as jury instructions that not only tell jurors not to do their own research, but also explain why they should not do so.

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