On February 5, 2013, the Bipartisan Legal Advisory Group of the U.S. House of Representatives filed a brief urging the U.S. Court of Appeals for the D.C. Circuit to hold that U.S. legislators and their aides cannot be forced to testify about their legislative activities, even when their expected testimony might help exonerate a criminal defendant.
The case raises interesting questions about the balancing of constitutional imperatives – here, the separation of powers and a criminal defendant’s right to present a defense. Fraser Verrusio, a former House staffer, is hoping for a balance struck in favor of defendants’ rights.
In 2011, Verrusio was convicted of accepting an illegal gratuity in connection with his duties as then policy director of the House Transportation Committee. According to the prosecution, Verrusio accepted and failed to report an all-expenses-paid trip to New York City that included a ticket to the World Series and an outing to a strip club. The trip was funded by United Rentals, a construction-equipment company that had stepped up its lobbying efforts to get favorable amendments into the federal highway bill. United Rentals wooed senior staff member Verrusio, who reportedly advised the chair of the House Transportation Committee (as well as the committee) on legislative strategies and policy. Prosecutors alleged that when Verrusio accepted the $1,200 trip, he knew that United Rentals was compensating him for future assistance on the highway bill.
One key piece of evidence against Verrusio was an e-mail that United Rentals lobbyist James Hirni sent to Vivian Curry, legislative director for then-House Committee member John Boozman. In his e-mail, Hirni said, “I have spoken to [Verrusio] and he is good to go. I am resending him the language in the Senate bill, with changes which would represent the 100 percent victory for [United Rentals. Verrusio] asked us to give him the language plus what we would want in the perfect world.”
To address the possible inferences from that e-mail, Verrusio’s attorneys issued a trial subpoena to Curry. The defense expected her to testify that Verrusio had not inserted himself into the legislative process and had not pressured her. But Curry moved to quash the subpoena on grounds that her testimony was privileged under the Speech or Debate Clause of the Constitution. She argued that the testimony sought was protected because it concerned “information gathering for legislative purposes.”
Verrusio countered that the inability to call Curry would violate his rights to due process and to present a complete defense. During the hearing on Curry’s motion, the defense made a potentially critical error when it acknowledged the “high hurdle” imposed by the Speech or Debate Clause and then conceded that the clause “in fact did “appear to cover [the e-mail] communications.” The court held that Curry had properly invoked the privilege and could not be forced to testify.
After the jury returned a guilty verdict on all counts, Verrusio appealed. Among other things, he claims that the trial court erred when it prevented him from calling Curry as a witness. In his view, one of two results must follow. First, Verrusio contends that protections under the Speech or Debate Clause are not absolute but, in some cases, must give way to a defendant’s right to compulsory process. He argues that trial judges should balance a defendant’s need for otherwise-protected testimony against the potential burden on Congress. When the case involves an aide’s testimony regarding informal, passive information gathering from a third party, the potential burden is minimal to non-existent. In such cases, the next question to ask is whether the testimony sought is material. In cases like his — where the jury verdict is already of questionable validity — the “materiality” bar is lower. Thus, he argues, any evidence calling into question the government’s theory could have created reasonable doubt.
Verrusio contends in the alternative that, if the Speech or Debate Clause privilege is absolute, the indictment must be dismissed.
The prosecution replies that Verrusio waived his right to appeal the trial judge’s order to quash. Not only did the defense concede that Curry’s testimony was protected; it first introduced the “balancing test” argument on appeal. Therefore the appellate court may not consider it.
Speaking as friends of the court, the House’s Bipartisan Legal Advisory Group framed the issue as one upon which “the whole American fabric” rests – separation of powers. The decision is simply whether an individual’s right to evidence trumps American liberty in general – an impossible bar to meet. After summarizing the history of the Speech or Debate Clause, the House brief argues that the clause is absolute, regardless of whether the proceedings are civil or criminal. Moreover, the testimony Verrusio sought from Curry was unquestionably protected because it concerned “activities that were ‘an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings.’” According to the House brief, no court has held that the Speech or Debate Clause privilege is subject to a balancing test. And Verrusio’s reliance on cases recognizing some flexibility with respect to executive privilege is unavailing since executive privilege is not expressly mandated in the Constitution.
But the House brief glosses over the fact that executive privilege is rooted in separation of powers just like the speech or debate privilege. That leaves the question of why the separation of powers in executive-privilege cases need not be guarded so jealously.
Courts decline to address thorny constitutional questions if they can resolve a case on other grounds. It seems likely that the D.C. Circuit will home in on Verrusio’s alleged failure to preserve his argument and save the speech or debate issue for another day. Verrusio’s reply brief is due to be filed by March 13, 2013; the D.C. Circuit will likely issue its decision sometime mid-year.
Lawyers for Stephen Jin-Woo Kim, a former federal contractor employee accused of unlawfully disclosing sensitive information, recently filed a motion in the U.S. District Court for the District of Columbia criticizing the government’s withholding of information in the case and asking the court to order the government to produce the documents. The government should not be permitted to withhold this type of valuable, discoverable information from the defense in this “leak” case.
Kim was indicted in August 2010 with unlawfully disclosing national defense information to a reporter for a national news organization and making false statements to the FBI. If convicted, Kim faces up to 10 years in prison for unlawful disclosure of national defense information and up to five years in prison for making false statements. Kim was an employee of a federal contractor who was on detail at the State Department at the time of the alleged disclosure of classified information in June 2009.
Prosecutors in the case have said that Kim’s trial is not likely to occur until 2013.
According to the indictment, in June 2009, Kim knowingly and willfully disclosed to a national news reporter “Top Secret-Sensitive Compartmented Information” that concerned the military capabilities of a foreign nation and intelligence that “could be used to the injury of the United States.” The indictment further alleges that, in September 2009, Kim made false statements to the FBI when he denied having any contact with the reporter since a meeting in March 2009. The government alleges that he has had repeated contact with the reporter in the months following the meeting.
The indictment was part of a series of investigations by the federal government into unauthorized information leaks to media outlets during the Obama administration. After the announcement of the indictment, lawyers for Kim criticized the government for criminalizing an occurrence “that happens hundreds of times a day in Washington.”
Discovery in the case began in October 2010 and is continuing. Recently, without prior notice to defense counsel, the government filed a motion seeking the court’s permission to withhold otherwise discoverable classified information from defense counsel. In its motion, the government sought an ex parte review, even though lawyers for Kim all had security clearances and classified discovery had been ongoing for close to two years subject to a protective order. Counsel for Kim noted that over the past 22 months, the Department of Justice has produced over 3,000 pages of classified material to Kim’s legal team.
The government should not be permitted to withhold discoverable information without making a strong showing that there is a need to do so. Here, the government has made no showing and has “not provided defense counsel with any information about the nature or subject” of the information withheld, defense counsel say. Especially given the protective order and the security clearances of Kim’s counsel, it seems inexcusable to allow the government to continue to withhold information without justification.
A Washington Post article today points out that in many cases over the past several decades, federal prosecutors knew that the evidence against a defendant was flawed because the science upon which the conviction had relied was not reliable – yet the prosecutors failed to notify the defendants or their attorneys of the problems.
The article notes that the forensic evidence – including hair identification evidence, which is now regarded as generally unreliable — led to hundreds of convictions of defendants, nationwide, for crimes they may well not have committed. In these cases, the convicts are entitled at the very least to a DNA test, which would in most cases determine their guilt or innocence. In one case, a man was executed in Texas even after the Justice Department began its review of convictions based on evidence that was not supported on solid scientific grounds.
All told, the Post found that the Department disclosed the results of these reviews to the defendants or their attorneys in fewer than half of the more than 250 cases in which questions had arisen about the forensic evidence.
It is truly unfortunate that it took an investigative reporting effort by a newspaper to uncover these clear failures by prosecutors to do justice, which is the first obligation of any government lawyer.
Looking at this, the Ted Stevens case, and other recent prosecutorial problems, it’s hard to avoid the conclusion that the Justice Department isn’t going to admit its errors or revisit its acknowledged problems unless its feet are put to the fire.
Journalists, bloggers, defense lawyers, whistle-blowers, and others all need to be aware of the department’s tendencies to make only the most perfunctory self-evaluations and to insist that it is right and just, even when it is not.
One of the hardest decisions on which a lawyer may be called upon to advise a client in civil litigation is the decision whether to assert the Fifth Amendment privilege. On the one hand, the overlap between pending civil and criminal matters may make it dangerous for the client to make statements that could incriminate him or her in the criminal case. On the other hand, while the assertion of a Fifth Amendment right in a criminal case may not be used against a defendant, the assertion of that right in civil litigation may permissibly lead to an adverse inference against the client in that lawsuit. There are a variety of strategies for dealing with this tension, including seeking a stay of the civil proceeding or a more limited protective order in the civil litigation.
While there are many approaches to dealing with these issues, a recent case in Nevada reinforced the lesson that blanket assertion of the Fifth Amendment may actually harm the client’s interest more than helping it. In Francis v. Wynn Las Vegas, LLC, 262 P.3d 705 (Nev. 2011), the Nevada Supreme Court upheld the lower court’s grant of summary judgment against a defendant on all claims and counterclaims based on the defendant’s overbroad assertion of the Fifth Amendment during his deposition.
In that case, the defendant owed a debt to the plaintiff, a Las Vegas casino, based on his marker. At the time of his deposition, the defendant was a party in the civil litigation and was also being prosecuted by local law enforcement. During the deposition, defendant asserted his Fifth Amendment privilege in response to nearly every question, including whether he was married, whether he lived alone, whether his father was still living and the names of his father and mother. 262 P.3d at 709. After Wynn Las Vegas filed a summary judgment motion, Francis sought to reopen discovery and “gave vague indications that Francis would like to withdraw his privilege. 262 P.3d at 710. The district court denied the request and castigated Francis for his blanket assertion of the privilege:
[Y]ou can’t use the 5th Amendment as a sword and a shield. You can’t sit in a deposition and – what’s your father’s name? Right to remain silent. Do you have a cell phone? Right to remain silent. That’s the most ridiculous exercise of the 5th Amendment I think I’ve ever seen.
Id. The court also refused to permit Francis to withdraw his assertion of the privilege.
On appeal, the state supreme court upheld the district court’s rulings and rejected Francis’ assertions that the court had penalized his exercise of the privilege by not permitting him to withdraw his assertion of the privilege and that the court should have accommodated his privilege by granting his request to reopen discovery. While the Court recognized the importance of protecting the valid assertion of a Fifth Amendment privilege, the Court found that Francis’ overbroad assertion of the privilege was unjustifiable and noted that Francis had not sought any other relief from the district court to protect his privilege (such as requesting that his deposition be sealed). After balancing the prejudice to the plaintiff, the Court found that the district court did not abuse its discretion in the way in which it had balanced the competing interests of the parties.
In Francis, the defendant’s inability to explain why he had conducted no discovery during the discovery period may have doomed him on summary judgment, regardless of his abusive exercise of the privilege against self-incrimination. But the lesson of this case is still one that sounds obvious when you say it out loud: A party in a civil proceeding should only assert the Fifth Amendment privilege when there is a basis to do so, and only as to those questions or other requests which genuinely pose a risk of self-incrimination (as understood in Fifth Amendment jurisprudence).
And while there may be strategic reasons to seek broad protection under the Fifth Amendment, counsel should be prepared to seek alternative means to protect a client’s interest before discovery is completed and before dispositive motions are filed so that the balance of interests will not weigh against the client’s interests in the litigation. Those who instead use a broad-brush approach to the assertion of the privilege will find themselves doing their clients a significant disservice.
If there was ever an open question as to whether forensic handwriting identification is admissible under D.C.’s common law of evidence, the D.C. Court of Appeals has finally put that question to rest. On February 9, 2012, the Court of Appeals held that handwriting comparison and identification, as practiced by FBI examiners, passes the Frye test for admissibility.
The issue arose after Robert Pettus’ jury trial in D.C. Superior Court. Pettus was convicted of sexual assault and first-degree felony murder in 2008 and sentenced to 60 years in prison. The conviction rested in part on multiple forms of forensic evidence, including DNA, fiber, fingerprint and handwriting identification evidence. With regard to the handwriting analysis, FBI document examiner Hector Maldonado testified that Pettus authored a handwritten note left at the crime scene. The note on the victim’s body read, “You s[h]ould[’]n[t] have cheated on me.” After comparing the note with 235 pages of writing taken from Pettus’ jail cell, Maldonado concluded that Pettus wrote the note. According to Maldonado, the writings exhibited “an overwhelming amount of handwriting combinations . . . in agreement with each other” and no significant differences.
Months after Pettus was sentenced, the National Academy of Sciences (NAS) issued a report that critiqued forensic science, including handwriting analysis, and made recommendations for ensuring greater quality and consistency in the field. The report seemed to give Pettus’ case new life.
On appeal, the defense argued that Maldonado’s opinion evidence was inadmissible under D.C. law because the scientific community does not accept conclusive identification based on handwriting analysis. The 2009 NAS report concluded, “With the exception of nuclear DNA analysis, . . . no forensic method [of ‘matching’] has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”
The Court of Appeals was not persuaded. D.C. law requires only general acceptance of the method, not of the conclusions drawn from it, and general acceptance does not mean unanimous approval. Handwriting analysis has been generally accepted under D.C. law for nearly a century. As such, it is presumptively reliable and, thus, generally admissible. To prove that Maldonado’s handwriting analysis was inadmissible, the defense had to show that there was significant opposition to the technique within the scientific community. The defense failed to meet its burden on appeal, just as it had during the initial pretrial admissibility hearing below.
The Court of Appeals reviewed the evidence proffered at the pretrial hearing and concluded that the prosecution’s evidence for admissibility outweighed the defendant’s evidence for exclusion. The prosecution presented testimony and published studies by three forensic experts. The first witness, an FBI supervisory document analyst, testified that there are well-established regional and national professional organizations for forensic document examiners. She also testified about the methods, professional standards, publications, and university programs in the field.
The prosecution also proffered studies by two university professors that showed empirical evidence of reliability. Multiple studies published by Drexel University professor Moshe Kam showed significantly lower error rates among professional document examiners as compared to trainees and laypersons. SUNY professor Sargur N. Srihari published multiple studies showing that computers can match handwriting samples to their authors with 96 to 98 percent accuracy. Srihari testified further that he could validate handwriting individuality with 95 percent confidence.
By contrast, the defense proffered one non-expert, an evidence professor from Seton Hall University Law School. Professor Mark Denbeaux had co-authored a 1989 law review article urging courts to prohibit the use of handwriting analysis. But his article relied in part on disavowed test data. At the pretrial hearing, Denbeaux contended that Srihari’s 95 percent confidence level did not support a general acceptance of positive identification based on handwriting analysis. In fact, Denbeaux pointed out, Srihari testified to a 5 percent error rate that neither he nor his computer could explain.
The Court of Appeals held that, taken as a whole, the prosecution’s evidence proved that forensic handwriting identification is sufficiently established to have gained general acceptance under Frye. And while the 2009 NAS report was hardly an unqualified endorsement of handwriting analysis, it also did not provide evidence that the science community opposes it as a whole. If a particular examiner’s conclusions are shaky, the answer is not exclusion. Such evidence is best attacked through “vigorous cross-examination, presentation of contrary evidence, and careful instruction of the burden of proof,” the court said.
We have written previously about the number of times in which federal prosecutors seem to withhold crucial evidence from defendants — evidence that they are required under law to turn over. Here, for example, is a discussion of an important Foreign Corrupt Practices Act case in which this occurred.
A genocide case in Kansas poses a new instance in which the U.S. Department of Justice had to acknowledge that it had not provided information to the defense. After charging a Kansas man with one of the most horrific crimes imaginable, federal prosecutors ended their genocide case against Lazare Kobagaya on August 26 after his defense attorneys sought sanctions against prosecutors for withholding evidence.
In his trial, the government failed to disclose information from a U.S. consular officer listed on Kobagaya’s immigration application. The officer stated that even if she had known that Kobagaya was in Rwanda in 1994, she would not have questioned him about the genocide for his visa and alien registration application because he was not Rwandan, but rather a Burundian national. A key argument in the defense’s case was that Kobagaya’s presence in Rwanda during the genocide was not a material fact that would have caused further investigation by U.S. immigration officials if Kobagaya had disclosed it in his immigration papers. He did not make that disclosure regarding his presence in Rwanda in his application.
In May, jurors found that Kobagaya, now a U.S. citizen, lied on immigration forms about his whereabouts during the 1994 genocide. The jury did not, however, find that he had participated in the atrocities. When the jury deadlocked on a count relating to lying on his citizenship application, the prosecution informed the defense that they planned to retry the case.
In its response to the defense’s motion for acquittal, the prosecution revealed that it had failed to disclose the consular officer’s statements. The defense immediately latched onto that fact and wrote a letter to the judge stating that it would seek sanctions. As a result, in a stunning turn of events, prosecutors last week asked the judge not only to dismiss the charge against Kobayaga of lying on his citizenship application, but also to set aside his visa fraud conviction.
While the prosecutors may deserve a minimal amount of credit for disclosing this information even in that late stage, it is a classic case of too little, too late. An estimated $1 million of taxpayer money had already been spent trying the case, and 84-year-old Kobagaya’s life was put on hold as he was charged with monstrous crimes.
A jury can only reach a fair verdict if it has the opportunity to hear all relevant admissible evidence. The prosecution’s failure to disclose key evidence nearly cost Kobagaya his freedom. Whether the prosecution intentionally withheld the evidence to gain a desired verdict or inadvertently failed to disclose it due to negligence, the prosecution in this case did not fulfill its duty to see that justice is served. Again, it appears that Eric Holder’s Justice Department is not living up to the promises of fairness and accountability that it made when it came into power.
This is the sixth of a regular series of posts that summarize and wrap up our latest thoughts that have appeared recently on Ifrah Law’s blogs.
1. Perjury, Obstruction and Barry Bonds’ Conviction
Read why we regard the Barry Bonds obstruction of justice verdict as troubling: It sets a bad precedent for the grand jury system and allows prosecutors to unfairly pin an obstruction of justice charge on a witness.
2. FTC Says These ‘Free’ Offers Were Anything But Free
In yet another salvo aimed at online marketers, the FTC goes after a Canadian company in the latest federal action targeting companies involved in what is known as the upsell industry. Our post looks at how the FTC wants ads to be worded.
3. Disqualification of AUSA in Scruggs Case Is Message to Prosecutors
In this case, the government may have imprisoned an innocent defendant for 14 months. The only remedy that took effect was the removal of a particular prosecutor. We wonder: Was that really enough?
4. FTC Tries to Stay One Step Ahead of Internet Fraud
In this interesting case of “location fraud,” the FTC calls out an Internet seller who allegedly misled British purchasers by claiming to be based in the U.K. and therefore supposedly subject to stringent U.K. consumer protection rules.
5. Online Poker Finds New Supporter on the Hill
An outspoken GOP conservative House member is also a poker player – and he has pledged to support legalization and to move it through a House committee.
6. Good-Faith Rule Applies to Document Destruction
A court rejects charges that in a civil case, DuPont was guilty of “spoliation,” or the intentional destruction of evidence. The court says the proper test for document destruction is one of reasonableness and good faith in the circumstances, and DuPont didn’t act in bad faith.
Big cases can turn on a little rule of evidence called spoliation. The rule recognizes that a trial court has the inherent authority to sanction a party for destroying, altering, or failing to preserve property that the opponent could have used as evidence. A recent decision in the Eastern District of Virginia serves as a reminder that a judge’s decision to award sanctions — and thus tip the balance in one party’s favor — turns on familiar concepts of reasonableness, foreseeability, and state of mind.
The case is notable because now that e-discovery has become the norm in complex commercial litigation, many companies are concerned that routine deletion of e-mails, or a minor failure to order the retention of electronic documents, will lead to a finding of spoliation with its potentially severe consequences. This case, involving the DuPont company and Kolon Industries, a competitor, will give some solace to companies that have those concerns.
In February 2009, DuPont filed a complaint against Kolon alleging that Kolon had used trade secrets regarding DuPont’s Kevlar product. According to DuPont, the trade secrets had been stolen by a former DuPont employee who went to work as a consultant for Kolon in April 2007. DuPont issued three litigation hold orders in connection with the suit. The first order, issued in June 2007, required certain employees in a specific business unit to preserve records related to the former employee as well as documents related to Kolon’s competitive intelligence. On the day it filed suit, DuPont issued a second hold order to all employees in the relevant business unit. DuPont issued the third hold order on April 24, 2009, four days after Kolon filed its counterclaim alleging that DuPont had attempted to monopolize the market for para-aramid fiber, the synthetic fiber from which Kevlar is made.
Notably, it was not until October 2009 that Kolon raised a question regarding DuPont’s gathering of competitive intelligence.
Kolon claimed that four former DuPont employees, whose e-mails were deleted in the normal course of business, should have received the first (allegedly belated) hold order. Kolon claimed that DuPont’s failure to preserve the e-mails deprived Kolon of the evidence it needed to bolster its defenses. Specifically, Kolon argued that the information DuPont mischaracterized as “trade secrets” was the very type of information DuPont gathered on its competitors, including Kolon. To address the “substantial prejudice” Kolon suffered as a result of DuPont’s alleged spoliation, Kolon requested the court to make findings of fact in Kolon’s favor or, alternatively, to instruct the jury that it could make adverse inferences based on the missing evidence.
The judge denied Kolon’s request. First, the court held that DuPont’s duty to preserve was triggered in May 2007. At that point, DuPont was required to preserve what it knew or reasonably should have known was relevant to the anticipated litigation. The court held that the custodians of the e-mails in questions were not “key players” as of May 2007, so DuPont had no obligation to issue the first hold order to them. Additionally, DuPont had no reason to know that Kolon would eventually assert antitrust counterclaims or that DuPont’s own methods of collecting competitive intelligence would become an issue in October 2009. Put simply, these eventualities were not “reasonably foreseeable” as of May 2007.
Judge Robert Payne explained that the duty to preserve is not absolute or intended to cripple organizations. Whether discovery conduct in a given case is acceptable depends on what is reasonable, and what is reasonable depends on whether the conduct is proportional to the case and consistent with clearly established standards. Applying this standard, the court concluded that DuPont acted reasonably and in good faith when it preserved documents it believed were relevant to its potential suit against Kolon. DuPont was not required to preserve evidence based on speculation as to the counterclaims Kolon might assert down the road.
On February 8, 2011, the U.S. Attorney in Manhattan and the FBI announced some new indictments in a massive probe of insider trading on Wall Street. They charge two defendants not only with conspiracy to commit securities fraud but also with obstruction of justice for destroying evidence.
The five-page release issued that day by the government reads like something out of a TV crime drama, complete with turncoat informants, telltale e-mail messages, and late-night dumpster trips in a failed effort to hide evidence.
In just one instance of alleged insider trading, two hedge funds pulled in $2 million in profits nearly overnight.
“When you are paying insiders for earnings data before it’s announced, that isn’t ‘research.’ That’s cheating,” said Janice K. Fedarcyk, assistant director-in-charge of the FBI’s New York office in announcing the indictments. “And the efforts to destroy evidence are laid out largely in the defendants’ own words. For all their presumed sophistication, the defendants lacked a mobster’s instinct for conversational discretion.”
In fact, Samir Barai and Donald Longueuil, the two hedge fund managers who were charged, seemed to have no hesitation to lay out an electronic paper trail leading to their allegedly illegal activities.
For example, Barai sent Jason Pflaum, a co-worker who, unbeknownst to Barai, was a government informant, a BlackBerry Messenger message instructing him to “shred as much as u can,” “put all ur data files onto an encrypted drive,” and “delete all emails from” a particular person.
These traders seemed to have no idea that their words would soon be held against them. They thought that hitting the “delete” key was all they had to do to conceal their conduct. Actually, of course, no such communication is safe from a well-crafted government investigation.
Pflaum and another informant pleaded guilty, also on February 8, to one count each of securities fraud and of conspiracy to commit securities fraud.
This probe is far from over, and we will be looking at the government’s tactics and at the defendants’ arguments carefully as it goes on.
As Arizona plans a trial for accused Tucson shooter Jared Lee Loughner, a new set of questions has arisen: How will a jury be able to sit in impartial judgment, untainted by nonstop online coverage of the crime and its aftermath? What safeguards should a judge impose to keep the jury from following the case on the Internet and reaching a verdict based on facts that aren’t in evidence?
The Sixth Amendment guarantees every criminal defendant, no matter how heinous the charges, the right to trial by a fair and impartial jury. That means, among other things, that jurors aren’t allowed to consider facts not in evidence. So judges routinely instruct jurors not to discuss the case with anyone outside the courthouse and not to read or listen to news reports about the case.
But in today’s world of instant communication, are these traditional safeguards still workable? According to a recent study, at least 90 jury verdicts have been challenged since 1999 based on allegations of Internet-related misconduct by jurors. More than half of those cases occurred within the last two years. Roughly one third of the challenges were successful; judges granted new trials or overturned verdicts in 28 cases—21 since January 2009.
Some people argue for an absolute ban on all forms of electronic communication—a type of “virtual sequestration.” California, the state where Loughner may be tried, revised its civil jury instructions last year; they now bar jurors from “all forms of electronic communication” that are directly or indirectly related to the case. But overly broad restrictions are problematic for several reasons.
First, an absolute or near-absolute ban increases the likelihood of juror “misconduct,” however benign. As a result, defendants will have a strong incentive to challenge jury verdicts based on minor infractions. In the Loughner case, for example, what if a juror simply pulls up archived news of the shooting? These challenges would tie the courts in knots and delay justice for victims. Second, how can we assume that potential jurors are capable of putting aside media-induced prejudice based solely on their testimony that they can do so? Third, onerous rules on Internet usage may result in juries taken from discrete subpopulations who are unfamiliar with the cyber world and thus do not represent a jury of the defendant’s peers.
Dispensing with jury restrictions altogether is equally problematic. That would break with the important societal value that jurors should decide based solely on the evidence. And it would reflect a deep cynicism that assumes that prospective jurors cannot be expected to uphold the law.
We advocate a workable solution that permits jurors to use the Internet, prohibits them from conducting case-specific research regardless of the media involved, but does not disqualify them based simply on their access to broad media coverage. This approach is consistent with the nation’s history in two important ways. First, it protects against jury bias as courts have done with every technological advance, by imposing substance-based restrictions rather than wholesale media-based restrictions. Second, it presumes, as courts have for centuries, that jurors understand and follow jury instructions, including safeguards against improper bias.
We believe that these narrow restrictions strike the appropriate balance. Courts will safeguard constitutional guarantees in a way that minimizes interference with jurors’ personal and professional lives and affirms the bedrock principle that jurors can and will render impartial verdicts. In one of the most heinous crimes in the nation’s history, we can show that we can arrive at a verdict that is fair to the defendant, the jurors, and the justice system as a whole.