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Court warns on jurors’ Web use

Posts on social media raise risks of mistrial State’s judges told to spell out rules

By Milton J. Valencia
Globe Staff / May 14, 2012
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In the state’s first decision involving juries and social media, the Massachusetts Appeals Court has called on judges to better police jurors’ use of the Internet to make sure they do not discuss cases online, and thus risk a mistrial.

The court said judges need to do more to explain to jurors that refraining from conversations about a case also means not posting anything about it on Facebook or Twitter, common practice in today’s technology-driven world.

“Jurors must separate and insulate their jury service from their digital lives,’’ the court said in a ruling involving a Plymouth Superior Court case in which several jurors made comments on Facebook during a trial. Those posts in turn elicited responding posts from friends.

“Instructions not to talk or chat about the case should expressly extend to electronic communications and social media,’’ the court added in its little-noticed ruling two weeks ago.

The resulting directive for better policing of social media follows a national trend, as such cases are reaching the appellate courts. Last year in Arkansas, for instance, that state’s high court overturned a murder conviction that carried the death penalty after finding that a juror tweeted that a verdict was reached before the court was notified.

Law groups, such as the National Center for State Courts and a federal judicial conference committee, have also drafted advisory jury instructions, to limit the danger social media can pose to a jury’s private deliberations.

Meanwhile, some surveys conducted recently - including one by the Federal Judiciary Center that was released in March - conclude that jurors need to be specifically told to stay away from social media sites, that a general instruction not to discuss the case is not enough.

“It’s a growing issue. There are ways to address it, but I don’t think anyone has found a solution,’’ said Eric P. Robinson, deputy director of the Donald W. Reynolds Center for Courts and Media at the University of Nevada, Reno and a contributor to the Citizen Media Law Project, run by Harvard University’s Berkman Center for Internet & Society.

Robinson said that judges should not only instruct a juror to not discuss the case on the Internet, but explain why.

“The judge has to explain, ‘This is why we’re doing this, we’ll have to have a retrial, we’ll have to spend money,’ ’’ he said. “Jurors do have a sense of responsibility, and want to follow the judge’s instructions.’’

He and other analysts say that people tend to instinctively post something on Facebook, not considering it to be “discussing’’ the case. But courts have ruled that such postings could open a juror up to outside influences, for instance if a “friend’’ responds to a post.

“People don’t even think that going to Facebook and posting what they’re doing is going outside what the judge is instructing,’’ said Anthony E. Fuller, a former federal prosecutor and a defense attorney with Collora LLP. “The problem is, people can reply and give you information that could be extraneous to what goes on in the courtroom. The only thing they need to and should consider is what happens inside the bar, and the reality is technology can pose a threat to that.’’

The recent Massachusetts decision was based on a 2009 larceny trial in Plymouth Superior Court. The judge had told jurors not to research the case or discuss it with anyone, not even among themselves. To do so, the judge warned, could result in a mistrial.

But jurors talked about the case on Facebook. One juror began with a post that noted being on jury duty, and received a response, “Throw the book at them,’’ according to court records.

Later, the juror posted frustrations about the length of the trial, and received a response, “Hopefully it will end on Monday.’’ That response was from another juror who had “friended’’ the first juror during the trial.

In a separate instance, a third juror posted a Facebook item about being selected for the panel, and the juror’s wife responded, “Just send her to Framingham [jail] quickly so you can be home for dinner on time.’’

The juror’s friend also responded, “Tell them that you asked all your [Facebook] friends and they think GUILTY.’’

A Superior Court judge later interviewed the jurors on an appeal of the conviction, but found - and the Appeals Court agreed - that despite the postings, there was no evidence that either juror was influenced by any “extraneous matter,’’ the standard for declaring a mistrial.

However, the Appeals Court credited the lower court judge for holding a hearing on the matter, saying it “raised sufficient concerns to warrant further inquiry.’’

The court also noted, “Apparently, even these instructions were not enough to keep jurors from at least alluding to their jury service on social media websites. More explicit instructions about the use of social media and the Internet may therefore be required.’’

What is also notable, legal analysts said, is that the Facebook postings were discovered by the defendant’s attorney, an increasing occurrence as lawyers, in some cases even judges, are patrolling social media sites to investigate jurors.

During the political corruption trial last year of the former House speaker, Salvatore F. DiMasi, US District Court Judge Mark L. Wolf was told that one of the jurors in the case had said on Facebook that his clerk looked like Bull, a character from the old television show, “Night Court.’’

The comment was inconsequential to the case, but Wolf pointed out the remark in open court and reminded the jurors, as he had daily, to refrain from discussing or researching the case, even on Facebook and Twitter.

Pamela Wood, the state’s jury commissioner, said the state has already developed guidelines to advise jurors not to discuss a case. The Trial Juror’s Handbook was updated to reflect the new instructions, though it was after the Plymouth trial. A video played to potential jurors also mentions the guidelines.

But Wood said the need to stress that information in the first place - and the recent Appeals Court decision - shows that today’s jurors live in a different world, where even a quick mention on Facebook can disrupt a case.

“This is a burgeoning issue nationwide,’’ she said. “There are decisions coming down all over the country related to jurors who have used online technology to post a variety of things.’’

Milton J. Valencia can be reached at mvalencia@globe.com.

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