In 2010, a jury sentenced Dimas-Martinez to death for the 2006 murder of 17-year old Derrick Jefferson. Dimas-Martinez appealed the conviction and sentence on grounds that he was denied a fair trial. Specifically, he claimed unfair prejudice due to one juror who slept through portions of expert testimony (the sleeping juror) and another juror who posted trial-related messages on Twitter in violation of the court’s jury instructions (the tweeting juror).

In December 2011, the Arkansas Supreme Court reversed the conviction and sentence. Speaking for the Court, Associate Justice Donald Corbin explained that, under Arkansas law, the moving party bears the burden of proving both jury misconduct and a reasonable possibility of prejudice resulting from the misconduct. Corbin noted further that the court will not presume prejudice based on misconduct; the moving party must show that the alleged misconduct prejudiced his chances for a fair trial.

Then, the court purportedly applied the test. First, the court found juror misconduct because of the sleeping juror. The court found a reasonable possibility of prejudice because the juror would have no way of knowing what testimony he had missed, how much of it he missed, and whether that evidence would have influenced his view of the case. Accordingly, the court reversed and remanded. Although the Court could have ended its analysis there, it proceeded to a discussion of the tweeting juror instead.

With respect to misconduct, the Court readily concluded that the tweeting juror had knowingly and repeatedly violated the judge’s explicit instruction not to tweet about the case. But the Court’s discussion of the next prong — reasonable possibility of resulting prejudice —simply conflated the second prong with the first. And considering the tweets, it is clear why: none of the juror’s tweets showed that he was more or less likely to decide the case based on the evidence.

For one, all the tweets referenced in the Court’s decision were sent during the sentencing phase. They could not have prejudiced the guilt phase. Additionally, the messages were fairly benign and did not expressly reference the case. For example, when all the evidence was submitted for sentencing, the juror tweeted, “Choices to be made. Hearts to be broken. We each define the great line.” During deliberations, he tweeted, “If its [sic] wisdom we seek . . . We should run to the strong tower.” After the jury reached its sentencing verdict, he tweeted, “Its [sic] over.”

The defense proffered no evidence that the juror received trial-related messages. Thus, the defendant had to argue that these outgoing messages resulted in a reasonable possibility of prejudice. The defense did so by claiming that the juror’s inability to follow jury instructions called into question his ability to follow the law. If Corbin’s standard of law is correct, though, the failure to follow instructions would not, by itself, raise a presumption of unfair prejudice. Without more, the defendant’s argument seemed bound to fail. It didn’t.

The Court found that the juror’s failure to comply with jury instructions raised a question as to whether he followed the law. This reasoning allowed the Court to sidestep a challenging explanation as to how the tweets may have resulted in unfair prejudice: it was the juror’s inability to follow instructions that deprived the defendant of a fair trial, not his tweets.

The distinction is so fine it even tripped up the court.  Corbin wrote: “It is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.” When jurors do so, “[t]he possibility for prejudice is simply too high.” But if the court was concerned with prejudice resulting from the juror’s inability to follow instructions, why would any of this matter? Whether a juror tweets messages online or falls asleep during trial, it is the juror’s failure to follow jury instructions that shows his inability — whether intentional or inadvertent — to follow the law. Under the court’s new test, that alone is grounds for reversal.

We support the court’s decision to address the growing problem of Internet-related juror misconduct. Fortunately, the decision will cause trial judges to think long and hard before overlooking such misconduct. That said, we question whether the court’s rationale will stand the test of time. By eliding the distinction between juror misconduct and resulting prejudice, the court has drastically lowered the bar for obtaining reversal. It is difficult to conceive of any instance of juror misconduct that could not support reversal based on the rationale enunciated in Dimas-Martinez v. Arkansas. In the months ahead, the Arkansas Supreme Court will likely delimit the holding to stem the flood of appeals that will be filed in its wake.

In August, California became the first U.S. state to address the growing problem through legislation. The new law, AB 141, was approved without opposition and signed into law by Governor Jerry Brown on August 5, 2011.

The law requires judges to tell jurors that existing bans on research and dissemination of trial-related information apply to all forms of electronic and wireless communication. The statute expressly requires judges to read specific admonitions at certain times in civil and criminal proceedings. It also expands the existing definition of “contempt” to include a juror’s willful disobedience of the judge’s instructions prohibiting any form of communication or research about the case, including electronic and wireless communication. Beginning next year, jurors found to be in criminal contempt for Internet-related misconduct will face up to six months in jail.

It remains to be seen what practical impact AB 141 will have in California—the legislation did more to clarify existing law than it did to create new law. In fact, the California legislature presented a similar bill to former Governor Arnold Schwarzenegger, who vetoed it on grounds that then-current judicial warnings were adequate. Long before AB 141 amended California’s Codes of Civil and Criminal Procedure, judges were required to remind jurors that they could not conduct research, disseminate information, or converse with or permit themselves to be addressed by any other person on any subject of the trial. AB 141 clarifies that the long-standing proscription applies to forms of electronic and wireless communication, too.

But one has to wonder if there was any real doubt that the previous judicial instruction prohibited jurors from posting trial-related comments on Facebook and Twitter and from conducting research on Google or Wikipedia. Certainly, no one would have argued with a straight face that jurors were free to discuss trial-related matters via older forms of electronic and wireless communication—Morse Code, walkie-talkie, or Western Union telegram, for example—simply because the instructions did not expressly prohibit electronic and wireless communication.

The real newsworthy event seems to be that California legislators spoke with one voice to deliver a not-so-subtle message: Internet-related juror misconduct is a real and growing problem and courts are not doing enough to stop it. Until now, courts have condemned this type of juror misconduct and, in some cases, granted the defendant a new trial; but courts have seemed reluctant to punish Internet-related misconduct as criminal contempt. Perhaps judges worry that harsh punishment in the form of stiff fines or jail time will discourage people from jury service. Or maybe more senior judges do not fully appreciate the extent to which continuous electronic communication has become the norm for younger Americans.

Whatever the case, by enacting AB 141, California lawmakers have signaled clearly that a more robust response is necessary to prevent further erosion of defendants’ Sixth Amendment rights, promote interests in finality, and limit the extraordinary costs of juror misconduct.

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.

Ryan was convicted in 2006 of a series of fraud, racketeering, and similar crimes growing out of his abuse of public office while he was governor and before that as the state’s secretary of state. He has been in federal prison since November 2007.

Last August, Ryan filed a petition under 28 U.S.C. 2255, which allows a federal prisoner to challenge his conviction and try to have it set aside if it was imposed in violation of law. His lawyers pointed out that Skilling made a substantial change in federal fraud law, rejecting the concept of “honest services” fraud in cases other than “paradigmatic cases of bribes and kickbacks.”

So the question before U.S. District Judge Rebecca Pallmeyer of the Northern District of Illinois was the nature of Ryan’s convictions, which of course took place in the pre-Skilling period, and the nature of the jury instructions in his case.

Judge Pallmeyer, in a detailed 59-page opinion, turned aside all of Ryan’s arguments. The “conduct for which [Ryan] was convicted – steering contracts, leases, and other governmental benefits in exchange for private gain – was well-recognized before his conviction as conduct that falls into the ‘solid core’ of honest services fraud,” the judge wrote, noting that this conduct was exactly what the Supreme Court said in Skilling was the “proper target” of the “honest services” law.

But that was not the end of the judge’s analysis. At Ryan’s trial, prosecutors did not present solely a straightforward bribery theory. They also relied on the argument that Ryan, as a public official, did not disclose a conflict of interest between his public duty and his desire to bestow benefits and government contracts upon his friends. This was exactly the theory that the Supreme Court rejected in Skilling.

Judge Pallmeyer, in fact, found that several of the jury instructions were in error because they relied on legal theories that are now foreclosed by Skilling. But she also found them to be harmless error – and thus, that there were insufficient grounds to set aside Ryan’s convictions.

The judge had to look closely at exactly what facts the jury had found in each count of Ryan’s case and separate out a bribery theory (still fine after Skilling) and a conflict-of-interest theory (no longer acceptable). For each count, the judge held that the jury had found enough facts to establish a bribery theory that still survives after Skilling.

Even though the jury instructions included some legal errors, Judge Pallmeyer wrote that they still required the jury to find that Ryan ”did not act in good faith, that he acted for private gain, and that the ‘stream of benefits’ ” that flowed between him and a business associate “were intended to influence him in his official duties.” That amounts to bribery under federal law, and that was enough to uphold Ryan’s convictions.

This case shows, at the very least, how complicated the application of Skilling is going to be. In a very precise, fact-intensive process, prosecutors, defense attorneys, and judges will need to sort out the facts of past white-collar cases and see what survives.

In one newspaper account, a juror compared the jury instructions to the manual for the space shuttle. The instructions ran more than 100 pages, and many of the 24 counts were described in ways that the jurors saw as highly technical.

We don’t express any opinion on Blagojevich’s guilt or innocence. However, as crime itself becomes more complex, as more statutes are passed to capture more types of fraud, and as perpetrators think of new ways to circumvent existing laws, no one should be surprised at how complex jury instructions and duties can be in fraud cases.

Jury instructions have clearly become so burdensome and so complex that juries like the Blagojevich jury can hardly be expected to weed through them and appreciate their detail. With lives literally at stake, what options do federal judges have to “dumb down” what in many districts are mandatory jury instructions? And how much can one really do to reduce “legalese” in jury instructions that must be precise and hew to the language of the statute and of previously used instructions if they are to stand up on appeal?

Perhaps part of the answer is to help encourage juries to take advantage of submitting written questions during their deliberations to clarify a point, for example. Perhaps special jury instructions for the jury foreperson would also assist.

Whether the ultimate result is a conviction or an acquittal, both prosecution and defense should be convinced that jurors did their absolute best to find the facts and to apply the law as the instructions provide. The post-verdict comments of the Blagojevich jury reveal that none of the players in the process had much to be proud of.