Jurors Improper Use of Today’s Technology

August 2, 2009

Jurors are sworn to tell the truth when they are initially examined by the judge and attorneys when they first arrive in the courtroom. This is during voir dire.  If not stricken from that jury for cause or peremptorily, they take a second oath to “well and truly” do their duties, which include following all the dictates of the judge.

Mistrials occur sometimes, but they are much disliked by judges and judicial administrators because they require another trial from beginning to finish. All that time, all that expense.  A jury trial takes a lot of preparation by the lawyers and witnesses. A jury trial is an emotional and planning event that causes high anxiety and great concentration. Nobody wants to do it all over again, but that is what is required when a mistrial takes place.

Mistrials can result from a lot of things: an error committed by one of the attorneys, an error in evidence or law that cannot be fixed during the trial, some unusual event that prevents going forward or that interrupts the appearance of a witness, and sometimes jury misconduct.

Now there is a new way for jurors to misbehave.  Before, a mistrial could be declared if a juror communicated with someone during the trial or during deliberations.  With advances in electronic communications come new ways to communicate improperly.

A few months ago a juror in Florida was doing research on the Internet while sitting as a juror in a federal drug trial. He admitted to the judge he did that in direct violation of the judge’s order.  Just to be safe, the judge inquired of the remaining members of the jury, and eight more admitted doing the same thing.  Shocked, United States District Judge William Zloch declared a mistrial in the case.

The same week, Stoam Holdings, a building products company was seeking a new trial from a judgment entered against them in an Arkansas court for $12.6 million, claiming a juror improperly used Twitter to send updates during the civil trial.  One of the entries from Johnathan Powell, the juror in question, was this: “So Johnathan, what did you do today?  Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

A few days later, defense lawyers in the federal criminal trial of a former Pennsylvania state senator demanded the judge declare a mistrial before the verdict was delivered.  Lawyers for defendant Vincent Fumo, on trial for corruption, said a juror posted updates on the case on Twitter and Facebook and claimed the juror had even told his readers that a “big announcement” was coming on Monday.  The judge decided to allow the deliberations to continue.  The jury found Mr. Fumo guilty, and Mr. Fumo’s lawyers will use the internet postings as grounds for appeal.

Jurors are prohibited from seeking information about the case outside the courtroom.  The judge always instructs them to base their verdict only on the evidence presented to them during the trial, not on anything they may have heard before and certainly not on anything else during the trial.  Some evidence is not allowed to go to the jury, and the jury is admonished not to consider what they think that evidence would have been. But now, using their cellphones, jurors can look up anything on the internet while sitting as jurors. They can also share their opinions or describe trial events with their friends outside, which is also prohibited by routine jury instructions.  Everything involved with a jury and its deliberations is supposed to be secret, private, confidential.

Now attorneys have begun to check the blogs and web sites of prospective jurors and jurors.  Jurors, of course, think they are trying harder to do a good job by investigating on their own. Sometimes there are questions that arise during the trial, and jurors are not allowed to ask questions.  So how are they going to find answers they believe they must have to understand the trial they are to judge?  Why not just Google it?

The rules of evidence, developed over centuries of experience are intended to ensure the facts presented to the jury have been scrutinized by both parties to the lawsuit.  That is how the adversary is designed.  “You lose all that when the jurors go out on their own,” Professor Olin Guy Wellborn, a law professor at the University of Texas, said.

For these reasons, come courts are restricting the possession and use of cellphones during trials.   Some judges confiscate the phones during the days in the courtroom.  Most judges do not.  And no one can know what jurors do at night on their computers.  Computer access would cease only upon the sequestering of the jury, not a common practice except in long or very serious cases.

In the earlier-mentioned federal criminal trial in Florida before U.S. District Judge William Zloch, defense lawyer Peter Raben had fought charges for eight weeks of trial that his client had illegally sold prescription drugs over the internet.  After the entire trial had been completed and the jury was deliberating their verdict, one of the jurors contacted the judge to say another juror had admitted dong outside research on the case over the Internet.

After questioning the juror, the judge considered going forward with the trial without this juror, if the offending juror had not communicated the research to other jurors. That’s when the judge discovered that eight other jurors had done the same thing: looking up newspaper articles, conducting Google searches, reading definitions on Wickipedia, and searching for evidence that had been excluded from the trial by the judge.  “I was curious,” explained one of the jurors.


Oklahoma Defendants Denied Video Evidence

July 26, 2009

The recent controversy from Oklahoma Highway Patrol Trooper Daniel Martin stopping and scuffling with Creek Nation paramedic/ambulance attendant Maurice White brought new focus on the video cameras placed in the Highway Patrol cruisers.

The Department of Public Safety, the parent of the Highway Patrol, spent $1.4 million just in the past year installing the vehicles with these state-of-the-art digital video cameras. Upon completion of the latest order of cameras, there will be 368 of the WatchGuard DV-1 cameras.  Each vehicle’s video system costs about $4,500.00, manufactured by WatchGuard Video LLC of Plano, Texas.

About the expense of the cameras, Lieutenant Colonel John Harris, deputy chief and  director of the patrols’s transportation division said, “It’s an expensive piece of equipment, but you get what you pay for.  It’s a good product for law enforcement.”  Well, what about the tax payers who purchased the equipment?  Don’t they get to see the contents of the video recordings pursuant to Open Records requests?  Too bad.   You don’t get the benefit of the cameras.  You, Mr. and Mrs. Taxpayer, Mr. and Mrs. Voting Citizen, are not important enough. You only get to pay for them.

Some other expenses by the Highway Patrol are $3,621,340 for gasoline since last July and $671,477 for vehicle maintenance since last July.  The Highway Patrol has 350 troopers on patrol for 96,000 miles of road patrolled ever year in Oklahoma.

The new cameras are set to begin recording automatically an time a trooper turns on his front and rear emergency lights. Footage is captured from pursuits, traffic stops and other emergency situations.  Troopers can also manually turn on the cameras in other situations where only the emergency lights are used, such as helping motorists or acting for traffic control. As a criminal defense lawyer, the traffic stops are the situations I am most interested in.

Responsibility for safekeeping of the DVD-recorded video evidence falls to a supervisor. Each of the 13 field traffic troops in the state has a supervisor.  Other supervisors review the recordings from time to time for performance evaluations of the troopers.  These are reviewed especially when a complaint is made.  The proof can be in the recording.

The patrol began using the in-car videos a decade ago.  Some of the troopers were hesitant about using them at first.  “It didn’t take very long for these troopers to figure out that 99.1 per cent of the time, they realize that those vindicate them,” Lt. Col. West said.  In such cases, the Highway Patrol readily discloses the content of the video. They like what’s on the recording, so they show everybody.

But what about the other 0.9 percent of the time?  That is what the public, including criminal defense lawyers, want to know.  What about when the results show a misdeed by a trooper?  Why is the Highway Patrol covering up malfeasance?  “I can assure you it’s not about secrecy,” Lt. Col West claimed.  Certainly not.  Of course not.  How could anyone suspect such a thing?  It’s only about secrecy when it accrues to the benefit of wrong-doing troopers.  When it’s to the benefit of the Highway Patrol, no secrecy is needed.  You can see where the public ranks in the importance ladder of state government.

The Oklahoma Open Records Act exempts public access to the contents of these recordings.  The legislature enacted this change in the law in 2005 at the request of the Highway Patrol.  Of course, the Highway Patrol did release, voluntarily, the footage from Trooper Martin’s scuffle with the Creek Nation ambulance paramedic. There was just too much pressure in that case, and, from that incident, the press learned they are not allowed to get the video footage from Open Records requests.  The only other time the Highway Patrol has voluntarily released video footage was the 2003 killing of Trooper Nikky Green in Cotton County.  The Patrol released the footage to help the Patrol catch the shooter in that case.

Texas, Missouri, and Arkansas make their state police video camera recordings available through those states’ open records, unlike Oklahoma’s denial of such access.  Arkansas releases their videos to the public after a case reaches the initial court stages.  The Texas Department of Public Safety releases videos taken by a trooper dashboard camera after an investigation has been completed.  In Missouri, the video recording is released after the case has been completed at the trial level.   Kansas is like Oklahoma: secret.  Their legislature, like Oklahoma’s, has decreed that their citizens cannot be trusted with such things.