Twittering in the Jury Box

    In March, a building products company asked an Arkansas court to overturn a $12.6 million judgment, alleging that a juror used Twitter before, during, and after the trial, which demonstrated he was biased and that the trial wasn’t fair.

    In Philadelphia, attorneys for former Pennsylvania state senator Vincent Fumo demanded a mistrial in a federal corruption case that lasted five months because a juror posted updates about it on Twitter and Facebook.  After the jury had deliberated six days, the juror told his followers and readers that a “big announcement” was coming.  The judge did not dismiss the juror and the defendant was convicted on March 16 on 137 charges.  His lawyers said they plan to appeal.

    Last November, a British court dismissed a juror after she posted details about a sexual assault case on her Facebook page.  She solicited feedback from her friends, saying, “I don’t know which way to go, so I’m holding a poll,” according to published reports.

    Social media is the way of today and tomorrow.  Twitter, Facebook, MySpace, Linked-In – if you don’t know what they are, you had better learn, because it’s not just for kids anymore.

    Twitter is a popular, free, Internet-based communication outlet.  Subscribers can broadcast short text messages (a maximum of 140 characters) to followers who sign up to receive them.  The messages, called “tweets,” can be sent or received from a computer or a cell phone that has the proper application.

    Originally, it started as people twittering about what they were doing at any given moment – “at the ballgame,” “walking my dog.”  Hollywood celebrities twittered about the nightclubs they were attending so the paparazzi could follow them for those six-figure shots that would wind up on the front pages of the tabloids.  Ashton Kutcher recently took pride in speaking on Larry King’s show about being the first person to have more than one million following on Twitter.

    With an estimated 225 million “tweets” pers day from more than six million Twitter users, something much different is developing with people breaking news stories on Twitter.

    An eyewitness is reported to have broken the story on Twitter of the Turkish Airlines plane crash near Schiphol Airport in Amsterdam.  News wad disseminated through the Mumbai terrorist attacks, and the crash landing of the plane in the Hudson River.

    These may seem like insignificant messages, but if your client has twittered on a case that lands on your desk, the messages will become discoverable, just like any other e-mails, blog entries, or Facebook postings.

    It also can be used as a tool to inform people about your business – including articles you have written, spe4ches you make and important developments in your cases.  People can “follow” you and you can “follow” them, if you choose, by signing up at twitter.com.  By the way, you can follow my firm’s tweets at twitter.com/Cliffordlaw.

    Twitter may become of more interest to lawyers because of the earlier examples of jurors tweeting during trial.  Jurors can be instructed to stay away from social media sites, just as they are told not to read newspapers or watch television if the case on which they are sitting is in the news.

    Blogging also has found its way into the courts recently last year when reporters covered the divorce proceedings of Christie Brinkley in New York.

    The state’s court system communications director, David Bookstaver, apparently indicated concerns about the press disrupting court proceedings by running in and out of the courtroom to report what was occurring.  The New York judge allowed the use of BlackBerries by the press during the trial.

    Another technologically savvy judge, Mark Bennett of the U.S. District Court for the Northern District of Iowa, allowed blogging by reporters from his courtroom this year in the income tax evasion trial of a landlord who had pleaded guilty to fraud.  Bennett has written about his state-of-the-art courtroom in American Bar Association publications.

    In the Arkansas case, Washington County Circuit Judge Mark Lindsay dismissed an attempt to overturn the $12.6 million judgment against the building materials company.  Among eight Twitter messages, a juror wrote, “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

    The Associated Press reported that “While Lindsay said the posts by the juror Johnathan Powell were in bad taste, the messages didn’t amount to improper conduct.”  Greg Brown, the attorney for the successful plaintiff, said, in briefing the motion for a new trial, that it was clear that information about the trial ad “gone out but nothing came in.”

    Courts obviously are concerned with extraneous information reaching jurors during a trial or deliberations, but if the information going out does not rise to the level of depriving the parties of a fair trial, the verdict apparently will stand.

    The bottom line is that the trial must be fair and jurors must base their verdict on the facts presented to them.  How social medial will impact that obligation remains to be seen by the courts