Crime in the Suites: An Analyis of Current Issues in White Collar Defense
Posts Tagged ‘Jurors’
Jun 10

Kansas Juror Found in Contempt for Online Comments During Trial

Two years ago, we anticipated a growing problem with jurors who disregard trial judges’ instructions concerning Internet use. In July 2011, we reported on the first known prosecution of a juror in Great Britain for Internet-related misconduct. Since then, a Florida judge sentenced a Sarasota County juror to three days in jail for criminal contempt. In that case, the juror contacted a civil defendant on Facebook during jury selection and then bragged about his subsequent dismissal after having been seated on the jury. One month later, a New Jersey court found a jury foreman guilty of criminal contempt. In that case, the juror was required to pay a $500 fine for conducting online research into possible penalties the defendant would face if convicted on drug charges.

Kansas has now followed suit. On May 20, 2013, a court in Topeka found James Reeder guilty of criminal contempt for posting online comments while serving as a juror in a murder trial. The trial involved Anceo Stovall, one of nine defendants charged with felony murder and robbery in connection with the shooting death of a Kansas attorney and the wounding of her companion. Stovall also faced charges for unrelated crimes, including burglary of a vehicle and aggravated robbery of a co-defendant. Throughout the month-long trial, the trial judge instructed jurors not to “seek out and read any media accounts” about the crime or the trial.

Reeder didn’t heed the instruction. Soon after the jury began deliberating, Reeder visited the Topeka Capital-Journal’s website and read an article about the case. On July 21, Reeder posted a comment to the site using the pseudonym “BePrepared.” In response to another commenter, Reeder wrote, “Trust me that’s all they got in their little world, as you, I have been there. Remember the pukes names they will do it for ever [sic].”

Three days later, the jury announced that it could not reach a verdict on nine counts related to the felony murder. On the unrelated charges, Stovall was found guilty of aggravated robbery and not guilty of burglary. He requested a new trial on the robbery charge. Among other things, Stovall alleged juror misconduct based on evidence that Reeder had reviewed and commented on trial-related news in violation of the judge’s orders. As a result, Stovall’s robbery conviction was overturned and his motion for new trial granted. Months later, Stovall entered a plea deal and was sentenced to almost 11 years in prison.

Reeder appeared in court last month for his contempt hearing, arguing that his online post had not caused any harm. In one sense, his argument had appeal. The jury failed to reach a verdict on nine charges, so the case was going to be retried regardless. Additional costs for retrying the robbery charge would have been marginal. On the other hand, it was at least possible that Reeder’s misconduct had prevented the jury from reaching a unanimous decision on every count.

The trial judge didn’t care either way. In her view, “[t]here is great harm that results when someone in Mr. Reeder’s position of great trust violates in this way.” Having found the juror guilty of indirect criminal contempt, the court ordered him to pay a $1,000 fine or spend three days in jail. No doubt, the trial judge intends to send a message: jurors like “BePrepared” should be prepared to follow her instructions on Internet use or deal with the consequences.

posted in:
State Criminal
Jan 25

Death Penalty Overturned Because of Sleeping, Tweeting Jurors

Contrary to our prediction, the Arkansas Supreme Court has vacated the conviction and sentencing of capital-murder defendant Erickson Dimas-Martinez and remanded the case for a new trial on grounds of juror misconduct. Although the decision is a definite victory for defendants, it may well invite a flood of appeals based on allegations of misconduct, regardless of whether the defendant can demonstrate a reasonable possibility of prejudice.

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.

posted in:
State Criminal
Dec 04

Arkansas High Court Considers Impact of Juror’s Use of Twitter During Trial

Arkansas may be the next state (after California) to tighten restrictions on Internet usage by jury members. Earlier this year, California passed a law governing jurors’ use of the Internet. On November 17, 2011, the Arkansas Supreme Court considered whether a juror’s use of Twitter during a capital murder trial unfairly prejudiced defendant Erickson Dimas-Martinez.

Last year, Dimas-Martinez was sentenced to death for the 2006 murder of 17-year-old Derrick Jefferson. The two met at a party, when Dimas-Martinez and a co-defendant offered to give Jefferson and his two friends a ride. All five partygoers left that evening in the defendant’s car. Moments later, Dimas-Martinez robbed Jefferson of $30 and shot him in the head. Jefferson’s friends witnessed the crime from the back seat of the car.

On appeal, defense counsel Janice Vaughn argued that the conviction and death sentence should be overturned due to juror misconduct. Vaughn argued that the trial judge should have dismissed juror Randy Franco because Franco repeatedly tweeted about the case in violation of the court’s admonition not to discuss the case with anyone or post trial-related messages on the Internet.

Franco, however, tweeted about the substandard coffee and the monotony of trial (“Court. Day 5. Here we go again”). Franco also posted more thoughtful comments on the gravity of the case (“Choices to be made. Hearts to be broken …We each define the great line.”). Roughly 50 minutes before the jury verdict was announced, Franco tweeted “It’s over.” Perhaps unwittingly, he alerted the reporters stationed outside who were following his Twitter feed. Between the guilt and sentencing phases, Franco expressed some compassion for the defendant when he tweeted “With all my power I couldn’t do anything … nothing at all.”

Vaughn argued that the verdict should be reversed. In her view, Franco’s misconduct raises questions as to whether Franco ignored other aspects of the judge’s instructions or missed important trial evidence while he was busy posting on Twitter.

Assistant Attorney General Eileen Harrison countered that Franco did not violate the judge’s order. According to her, the judge did not absolutely ban use of social media; he gave jurors limited permission to post messages regarding the expected length of trial and other scheduling issues. She added that Franco never commented on trial evidence or the substance of jury deliberations; he simply communicated his thoughts and feelings about the case. She also noted that the state proffered overwhelming evidence of guilt, including the testimony of two eyewitnesses.

During oral argument, Justice Corbin reminded the parties of the governing legal standard. Under Arkansas law, the moving party bears the burden of proving juror misconduct and a reasonable possibility that unfair prejudice resulted from the misconduct. Arkansas does not recognize a presumption of prejudice based on a finding of misconduct, and the decision whether prejudice occurs is within the sound discretion of the trial court. The defense likely cannot meet this burden.

For one, Vaughn argued misconduct; she did not argue resulting prejudice. This was a sticking point. Justice Jim Gunter immediately asked whether Franco received any trial-related messages, suggesting that Franco’s outgoing messages could not prejudice him. Vaughn conceded that the defense did not adduce evidence of Franco’s incoming messages. Justice Karen Baker noted that one of Franco’s tweets occurred after the guilt phase, suggesting that it could not have resulted in prejudice as to guilt.

Other justices focused on inferences of prejudice that may be drawn from Franco’s conduct — that he did not take any of the judge’s instructions seriously, did not pay attention during trial, or was not fully engaged in deliberations, for example. But if the fact of a juror’s misconduct is sufficient to establish a reasonable possibility of prejudice, the first prong of Arkansas’ test (misconduct) will swallow the second prong (unfair prejudice). The Court is not likely to go down that road, especially in this case where the value of reversal would be largely symbolic.

Chief Justice Jim Hannah emphasized the policy reasons for requiring secrecy in jury deliberations. He questioned whether conduct like Franco’s undermines the jury system. That it does seems obvious. But that fact does not directly tell the Arkansas courts what to do about this case.

California may be a harbinger of things to come. If the Arkansas Supreme Court affirms Dimas-Martinez’ conviction and sentence, legislators may decide it is time to act. Arkansas may be the next to pass a bill making a juror’s Internet-related misconduct punishable as criminal contempt. Other states are sure to follow; the problem is not going away any time soon.

posted in:
State Criminal
Oct 31

New California Law Takes Aim at Jurors’ Uses of Internet

We have written about the impacts of ubiquitous Internet access and social-media networking on the jury system. Last February, we considered a Reuters Legal study that identified an exponential increase in the number of jury verdicts that have been challenged due to Internet-related juror misconduct. We also commented on a U.K. juror’s eight-month sentence for chatting with a criminal defendant through Facebook.

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.

posted in:
State Criminal
Oct 26

Spurned Juror Loses in Court, But His Efforts Lead to New D.C. Court Rule

A former juror in Washington, D.C., recently lost a District Court ruling stemming from his dismissal from a grand jury panel in 2001, but his case appears to have brought about needed change in the jury system there.

Peter Atherton, a nuclear engineer, was scheduled to serve on the grand jury for 25 days, beginning April 9, 2001. Concerned that his fellow jurors were voting on cases without fully understanding the law, Atherton regularly questioned prosecutors during the grand jury process. After only two days on the grand jury, supervising Assistant U.S. Attorney Daniel Zachem entered the jury room where the jurors were deliberating, confiscated Atherton’s notes, and told him to leave the room. Atherton claims that Zachem removed him from the grand jury without legal authority. Zachem responds that the removal was proper because Atherton was being disruptive to the proceedings.

Atherton brought suit in 2004 against Zachem and Suzanne Bailey-Jones, the official in the court’s juror office who finalized Atherton’s removal from the grand jury. Atherton claimed that they should have consulted with a judge before removing him from the panel and that only a judge has the power to end his term as a grand juror.

In dismissing his claim, U.S. District Judge Henry Kennedy, Jr. said that Atherton had not overcome the defendants’ defense based on the doctrine of qualified immunity. To overcome an immunity defense, a plaintiff must show “that the defendant violated ‘clearly established statutory or constitutional rights of which a reasonable person would have known,’ ” the judge wrote. Judge Kennedy said that serving on a grand jury is not a clearly established statutory or constitutional right, and even if it was, Atherton could not show that it was a right “of which a reasonable person would have known” since there were no policies or procedures in place at the time that set forth the procedure for removing a juror.

In response to Atherton’s complaint, the court has revised its rules to require the chief judge to be consulted before any grand juror is removed from a panel. This rule strikes the appropriate balance between ensuring that the grand jury operates efficiently without undue disruption, and ensuring that grand jurors who voice legitimate concerns are not dismissed arbitrarily by a prosecutor trying to obtain an indictment. Although Atherton did not prevail in this instance, his efforts brought about the positive change he sought.

Jul 05

U.K. Juror Gets 8-Month Sentence for Facebook Use

Eight months seems a harsh sentence for a juror who made some ill-considered Facebook posts. Harsh, that is, until you hear the facts. The proceeding against U.K. resident Joanne Fraill is one of the first contempt prosecutions ever against a juror for improper Internet use. And the punishment she received is a reminder that, when pushed, courts have both the power and the will to protect the integrity of the jury system and the rights of criminal defendants to a fair trial.

On June 16, 2011, Fraill was found in contempt of court for improper communications and Internet research she conducted while serving as a juror in a criminal trial. The case involved four defendants who had been charged with drug-related offenses, including Jamie Sewart and her boyfriend, Gary Knox.

The day after jurors acquitted Sewart, while the case was still pending against her three co-defendants, Fraill contacted Sewart on Facebook. Using the pseudonym “Jo Smilie,” Fraill messaged, “You should know me, I’ve cried with you enough.” Sewart replied and asked about a charge against one of her co-defendants. Fraill answered that “no one [on the jury was] budging.” Fraill then asked Sewart not to disclose their communications because “they could call mmiss trial [sic] and I will get 4cked to0.” Minutes later, Fraill told Sewart, “Dont worry about that chge no way it can stay hung for me lol.” The chat log further disclosed that the two had been communicating in court with nods and blinks.

The following day, Sewart told her attorney about the incident. When confronted, Fraill admitted that she had contacted Sewart to discuss the case and that she had searched the Internet for information about a shooting that involved defendant Knox.

In previous blog posts, we have considered the extent to which jurors should be restricted from Internet use during trial. The proliferation of iPads and smartphones raises difficult questions about how best to protect a defendant’s right to a fair trial while minimizing the burdens of jury service. But some cases are beyond the pale.

Fraill’s conduct seems indefensible for several reasons. First, Fraill understood the judge’s restrictions on case-related communications, and she took an oath promising not to research any aspect of the case on her own. Moreover, the chat log makes clear that she understood the potential consequences of juror misconduct. Indeed, Fraill knew that, if discovered, her conduct could result in a mistrial and that she could be punished for it. Nonetheless, Fraill blatantly disregarded the judge’s instructions.

If Fraill’s conduct were not bad enough on its own, other details seem to make it worse. The 10-week trial against Sewart and her codefendants was the third of four attempts by the prosecution to try the case. By the time Fraill was placed on the third jury, the case had already imposed considerable costs on Britain’s taxpayers and court system. Ultimately, the case involved 10,000 pages of evidence, 500 witnesses, 14 lawyers, and five juries over 160 days in court. More costs will be imposed as defendants, like Knox, appeal their convictions based on Fraill’s Facebook posts.

Given the context, Fraill’s eight-month sentence does not seem patently outrageous. Fraill’s extraordinary misconduct left the court little choice but to make an example of her.

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About Ifrah Law

Crime in the Suites is authored by the Ifrah Law Firm, a Washington DC-based law firm specializing in the defense of government investigations and litigation. Our client base spans many regulated industries, particularly e-business, e-commerce, government contracts, gaming and healthcare.

Ifrah Law focuses on federal criminal defense, government contract defense and procurement, health care, and financial services litigation and fraud defense. Further, the firm's E-Commerce attorneys and internet marketing attorneys are leaders in internet advertising, data privacy, online fraud and abuse law, iGaming law.

The commentary and cases included in this blog are contributed by founding partner Jeff Ifrah, partners Michelle Cohen and George Calhoun, counsels Jeff Hamlin and Drew Barnholtz, and associates Rachel Hirsch, Nicole Kardell, Steven Eichorn, David Yellin, and Jessica Feil. These posts are edited by Jeff Ifrah. We look forward to hearing your thoughts and comments!

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