Categories: Courtroom Buzz
      Date: March 16, 2009
     Title: Does The Fumo Juror's Twittering Warrant A Mistrial?

Maxwell S. Kennerly, Esq., on the revelation that a Fumo juror had been twittering and posting to Facebook

Twitter, twitter, everywhere. My delicious morning coffee was interrupted this morning by Anne Reed, who tweeted the following on Twitter:

Another tweeting juror, in Philly Fumo trial; How Appealing posts copy of "motion for immediate voir dire", http://tinyurl.com/c74h6s

Apparently the blogging gods want to be kind to your gentle host, ensuring him an endless fountain of inspiration. The Philadelphia Inquirer summarizes:

Defense lawyers for former State Sen. Vincent J. Fumo moved late yesterday for an immediate halt in jury deliberations and the removal of one juror, contending that the juror posted oblique remarks on Facebook.com and Twitter.com - including one declaring, "Stay tuned for a big announcement on Monday everyone!"

The petition, filed on the eve of the scheduled sixth day of deliberations in Fumo's federal corruption trial, stated that there was "substantial evidence" that the juror, who was not identified, had violated admonitions not to disclose the status of deliberations.

The lawyers asked U.S. District Judge Ronald L. Buckwalter to question the juror and other members of the panel.

"An immediate suspension of deliberations and a delicate but probing judicial inquiry is warranted," lawyers NiaLena Caravasos and Peter Goldberger stated in the petition. "Depending on the results of that inquiry, it seems that one or more jurors ought to be removed and possibly replaced . . . or that a mistrial will be required."

The motion cites one case, United States v. Kemp, 500 F.3d 257, 301 (3d Cir. 2007). Here's the relevant passage:

"We review 'a trial court's response to allegations of juror misconduct for abuse of discretion.' United States v. Boone, 458 F.3d 321, 326 (3d Cir. 2006). Here, we conclude that the District Court acted within its discretion when it individually questioned the jurors.

We have recently had occasion to set forth the applicable legal standard governing the district courts' latitude to question jurors during deliberations about allegations of misconduct. In Boone, we recognized that '[i]t is beyond question that the secrecy of deliberations is critical to the success of the jury system.' Id. at 329. At the same time, we emphasized that '[i]t is also manifest, however, that a juror who refuses to deliberate or who commits jury nullification violates the sworn jury oath and prevents the jury from fulfilling its constitutional role.' Id. Attempting to reconcile these disparate values, we held that 'where substantial evidence of jury misconduct -- including credible allegations of jury nullification or of a refusal to deliberate -- arises during deliberations, a district court may, within its sound discretion, investigate the allegations through juror questioning or other appropriate means.' Id. We stressed that a district court, 'based on its unique perspective at the scene, is in a far superior position than this Court to appropriately consider allegations of juror misconduct, both during trial and during deliberations.' Id.

...

Accordingly, the legal standard is clear: a district court may investigate allegations of juror misconduct when presented with 'substantial evidence' of that misconduct.

In other words, while the District Court has ample discretion in deciding whether or not to question a juror, the Court can't just do so on a whim -- it needs "substantial evidence" of juror misconduct.

Here, however,the situation is a little different: while particular tweets (say, "he's guilty as sin, ain't nothin' gonna change my mind") might provide "substantial evidence" of "jury nullification" or "a refusal to deliberate," twittering alone isn't necessarily "substantial evidence" itself of any particular misconduct.

Sure, the jury is instructed to keep the content of deliberations secret, but it doesn't seem the juror revealed any content, other than the cryptic reference to a "big announcement" on Monday, which itself doesn't reveal any content other than the jury being close to a resolution.

Moreover, there's the bigger question of: so what? The Third Circuit still hasn't settled on a standard for removing a juror. Suffice to say it's not easy:

"While it is undisputed that in certain circumstances, district courts may discharge a juror for cause during deliberations, see Fed. R. Crim. P. 23(b), we have yet to enunciate the appropriate standard. 24 Any standard must accommodate two clashing interests. First, it is clear that 'a court may not dismiss a juror during deliberations if the request for discharge stems from doubts the juror harbors about the sufficiency of the government's evidence.' United States v. Brown, 262 U.S. App. D.C. 183, 823 F.2d 591, 596 (D.C. Cir. 1987). Any other rule would eviscerate the right to a unanimous verdict of guilt. See id. On the other hand, courts agree that a district court has the authority to dismiss a juror -- even during deliberations -- if 'that juror refuses to apply the law or to follow the court's instructions.' United States v. Abbell, 271 F.3d 1286, 1302 (11th Cir. 2001) (per curiam). That is because 'a juror who refuses to deliberate or who commits jury nullification violates the sworn jury oath and prevents the jury from fulfilling its constitutional role.' Boone, 458 F.3d at 329. While the jurisprudence discussing the discharge of jurors during deliberations has largely focused on a refusal to deliberate or jury nullification, its reasoning applies with equal force to claims of juror bias." United States v. Kemp, 500 F.3d 257, 303 (3d Cir. 2007).

Id. at 303.

Twittering a couple lines about the status of the trial doesn't come close to "refusing to apply the law." At the most, the juror arguably didn't "follow the court's instruction" with regard to secrecy, but it's hard to say such was deliberate when the juror plainly made an effort not to disclose any specific information.

It all comes back to a discussion I had with Anne Reed just last week (on Twitter, about another juror twittering case, of course):

annereed: Civil defendant wants new trial after finding juror's trial tweets; they look appropriate to me. http://ping.fm/OvHlM

phillyshortcite: @annereed re http://ping.fm/OvHlM Agreed; jurors entitled to tell others they're on a jury and to describe verdict afterwards.

annereed: @phillyshortcite Yes.Juror networking issues are easier than people think; q is whether it would be ok if juror said it face to face.

phillyshortcite: @annereed I'm surprised by depth of confusion over social media & law. "Are tweets admissible?" Yep, just like everything else.

There's nothing different here. Jurors for centuries have told their friends over the weekend "I think we've finally reached a verdict!"

We just have more "friends" these days, and, as Seth Godin would put it, everything goes on your permanent record.

So, juror, if the jury's suspended while the lawyers argue and you're reading this... stop reading this! Do what the court tells you to and stick to the evidence at trial!

But if you're done with deliberations and have entered a verdict, don't sweat it. You're not the first juror to breathe a sigh of relief after months of trial.