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Social networking among jurors is trying judges' patience

By Del Quentin Wilber
Washington Post Staff Writer
Saturday, January 9, 2010; C01

Al Schuler, one of 12 jurors weighing the fate of a 23-year-old charged with killing a homeless man in Maryland, was confused by the word "lividity" and what role it might have played in explaining the circumstances of the victim's beating death.

So, one night after deliberations, the retired engineer did what so many people do in the digital age: He looked up the definition on Wikipedia, the online encyclopedia. "It was just a definition, like going to the dictionary," Schuler said. "It was very innocent."

A Maryland appeals court didn't think so. In throwing out the defendant's first-degree murder conviction and ordering a new trial, the court ruled that Schuler's inquiry violated an Anne Arundel County judge's order prohibiting jurors from researching the case.

Schuler's query is just the latest example of how modern technology and an information-saturated culture are testing centuries-old notions of how juries and judges mete out justice. The issue garnered national attention recently in Baltimore, where five jurors were accused of using a social-networking site to inappropriately discuss the ongoing trial of the city's mayor.

Judges and legal experts are particularly concerned about how technology and culture are affecting jurors and a defendant's right to a fair trial. The Internet has provided easy and instant access to newspaper archives, criminal records, detailed maps, legal opinions and social-networking sites, such as Facebook, all at the anonymous click of a mouse in jurors' homes or on the tiny keyboards of their cellular phones.

"This is a generational change, and I don't know if the legal system is ready for it," said Thaddeus Hoffmeister, a law professor at the University of Dayton Law School, who closely studies jury issues.

Judges have long instructed jurors to avoid reading newspaper stories about trials and to not discuss the case with one another, aside from their deliberations. They also warn them not to conduct their own investigations. The rules are designed to ensure that jurors contemplate only the evidence admitted at trial and at the appropriate time. (Jurors are free to discuss cases when they are over.)

Still, in the good old days, the hurdles for industrious jurors were fairly high: They had to physically visit a crime scene or the library or the court clerk's office. To talk about the case with other jurors, they had to pick up a phone or meet in person.

Today, technology has wiped out those barriers, and people have become increasingly reliant on the Internet for information. They have also become more comfortable blogging about the most mundane aspects of their lives -- let alone a sexy trial.

Legal scholars and lawyers disagree about how to handle the problem. Some say judges should warn jurors more explicitly about the Internet, while others advocate giving jurors more information during trials.

Most throw up their hands. No matter what steps are taken, they say, jurors will probably just keep Googling and texting and tweeting.

"I'm not sure what you can do about it nowadays, to tell you the truth, especially for younger people," said A.J. Kramer, the District's federal public defender. "That's what they grow up doing. You just have to figure it's happening. They go home at night and look up whatever they can. That's what people do."

In recent years, a half-dozen cases have popped into public view because the misconduct was egregious enough that judges were forced to decide whether to grant new trials.

In June, for example, a federal judge denied requests by defense attorneys to throw out the conviction of a former Pennsylvania state senator because a juror had posted updates to Twitter and Facebook during the trial. "Day 1 has come to a close," the juror tweeted. In the days before the jury reached a verdict, he told his Facebook friends that they should "stay tuned for a big announcement Monday everyone!"

Last week, a New York appeals court upheld the second-degree murder conviction of a 30-year-old man despite a juror's Internet research into whether the victim's gunshot wound was inflicted at close range.

In both instances, the judges found the tweeting and research did not harm the defendants' right to a fair trial.

But that isn't always the case. In May, a Maryland appeals court ordered a new trial for a man accused of raping his 17-year-old daughter, because a juror had researched "oppositional defiant disorder" on the Internet. The court found the research, communicated to other jurors, "improperly and irreparably influenced the jury's deliberative process."

A New Jersey appeals court in July overturned the aggravated manslaughter convictions of three cousins because a juror had done Internet research about the victim, the defendants and the amount of prison time they faced and had told her colleagues about it. The men will get a new trial.

In Baltimore, defense attorneys for Baltimore Mayor Sheila Dixon, who was convicted of embezzling about $500 in retail gift cards, accused five jurors of improperly becoming friends and chatting about the case on Facebook.

The attorneys alleged that the "Facebook Friends" may have bullied other jurors into the guilty verdict, contending that they were "a caucus separate and apart" from their colleagues. The counselors wanted Circuit Judge Dennis M. Sweeney to throw out the conviction and hold a new trial.

The issue nearly forced Sweeney to question jurors about their conduct, but Dixon and prosecutors reached a surprise plea deal that ended her appeals.

Jurors would probably have faced a less-than-sympathetic audience with Sweeney, who is considered one of the state's leading authorities on jury issues. He penned a newspaper column in June that examined the collision of the Internet and the nation's trial system.

"Modern jurors, so used to instant access, may not fully appreciate the need to divest themselves of the trappings of information-gathering and communication that otherwise dominate their lives," the judge lamented in Baltimore's Daily Record.

Sweeney urged judges to order jurors to specifically avoid discussing their cases on Facebook, MySpace and Twitter -- a warning he repeated during Dixon's trial.

It appears that such admonishments were not enough for the "Facebook Friends."

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