Juror Blogs Catching Court's Eye

By THOMAS W. KRAUSE The Tampa Tribune

Published: Jun 3, 2007

TAMPA - A few days after serving on a Hillsborough County jury, Jason Reynolds read a blogger's Internet posting about the trial.

Reynolds was having trouble resolving his concerns about the trial and the fairness of the legal system. He decided to add a pointed comment to the blog - a move any other juror might want to think about twice.

It seems a defense attorney learned about the post. And thinking Reynolds might have done his own research during the trial, the lawyer wants to pull Reynolds back into court to answer questions about his online comment.

Cases such as this are prompting court and cyberspace experts to warn people serving on juries against a practice that has become second nature across society - going to the Internet to read up and comment on a topic.

These same experts have suggestions for lawyers as well: Ask potential jurors about their Internet use during the jury selection process.

"It's an inevitable issue, and I think it will become more of a problem as technology increases," said Charles Arline, the lawyer who wants to question Reynolds. "Now, anyone with a $100 laptop can do research and come up with multiple articles from multiple news sources about a particular case."

In the case in which Reynolds served as a juror, two men were convicted of misdemeanor battery. The jurors were not told that the victim died as a result of the battery. The men were not charged with murder, so jurors were not allowed to know circumstances surrounding the death.

When Reynolds found out about the death, he was incensed.

The defendants "deserved a lot more than they got for killing that kid," Reynolds wrote a week after the verdict. "If we could have convicted them of murder, we would have."

Arline said Reynolds' use of the word "we" implies that he spoke to others on the jury about the death.

"I'm vehemently angry with this situation," Arline told The Tampa Tribune. "I clearly interpret that to mean that the juror did some independent research while deliberating in the case."

On Feb. 16, Arline filed a motion asking for a new trial and permission to interview the jurors in the previous trial. The judge denied his requests.

Arline's argument is now in the hands of an appeals court. He said this is the first time the Internet has caused a stumbling block for one of his cases, but he expects it to happen more often.

Bloggers In The Courthouse

Jurors don't just blog after serving on a jury. A recent article in The National Law Journal included examples of jurors who posted comments on the Internet while waiting in the jury selection room of a courthouse. Defense attorneys have made claims that such posts can call into question a potential juror's objectivity.

One blogger named in the Law Journal wrote online that he was surprised he was chosen for jury duty given his "strong beliefs" about God and the police. A defense attorney who later found the posting asked the judge to throw out the verdict. The judge refused.

It is not difficult to find similar posts online.

On May 15, while sitting in a San Diego jury selection room, Dale Franks made several blog posts describing his feelings about jury duty.

"Looking down the hall, it's losers and lawyers as far as the eye can see," Franks wrote. "I really like the 'praying hands' tattoo on the side of Gang-Banger Three's neck."

He ends the post saying he was headed toward a courtroom to see whether he would get seated on a jury. He wrote that he could no longer discuss the process.

Hillsborough County defense attorney Joe Bodiford said Franks' comments can be perceived as a bias against defendants.

"It sounds like this guy is a fairly elitist person," Bodiford said. "He doesn't know why this guy has the praying hands, but he's running him down for it."

If a jury convicted one of Bodiford's clients and then Bodiford found that one of the jurors had posted a comment like this, Bodiford said he would immediately file an appeal.

Still, he said, he wouldn't expect it to work.

Defense attorneys, he said, have to try everything they can to help their clients. As more jurors blog about their deepest feelings and as more post information about themselves on MySpace and Facebook, more defense attorneys are going to file motions based on what they see on the Internet, Bodiford said.

Right now, those motions are not making much headway. Eventually, Bodiford said, some of the motions will stick, and judges will have to pay more attention to what jurors do on the Internet.

Bodiford said he hadn't thought about the issue too much in the past but will start to ask potential jurors about their Internet use.

Wendy Seltzer, a Harvard Law School graduate, has taught Internet law at several schools and teaches at Oxford University's Internet Institute. She said she has seen growing concerns in the legal community about jurors and their access to the Web.

"I think it's likely you will see courts becoming clearer about their rules," she said.

Seltzer said she agrees with Bodiford that more motions complaining about jury blogging are likely.

"Until we get some case law that says this is irrelevant or that this is relevant but only under these parameters, I think we are going to see more defense attorneys with objections to this kind of activity," Seltzer said.

Lawyers 'Don't Understand'

Franks, the blogger in San Diego, is a former law enforcement officer who now develops software. He told the Tribune that he did not make it onto a jury.

Like Bodiford, however, Franks thinks lawyers need to ask about jurors' Internet presence.

Eventually, Franks said, some juror is going to post information that is meant to remain private, or one will perform personal research when he or she has been asked not to.

"This is a case where the legal community needs to look at the amount of information out there and the ease of disseminating information," Franks said. "My general feeling about lawyers is they just don't understand computers, and they don't understand the Web."

Hillsborough Circuit Judge J. Rogers Padgett said he sees nothing wrong or improper with jurors commenting on jury duty - as long as it comes before or after they are assigned to a case. The Internet is just one more medium for people to express their opinions, he said. Having an opinion, Padgett said, does not excuse someone from jury duty.

"I think it's much ado about relatively nothing," he said. "It's like overhearing a conversation. [The Internet] is just people talking; they're just taking with their fingers."

If a potential juror posted blogs during jury selection, the person might not be selected out of an abundance of caution, Padgett said. If a juror was found to be blogging during a trial, that would be a violation of the juror's oath. It is possible the juror would be replaced, Padgett said, but not necessarily.

If the blogging was not discovered until the trial was over, the violation probably would not constitute enough of a problem to require a new trial, Padgett said, as long as the juror did not receive any outside information while the trial was ongoing.

To throw out a jury verdict, Padgett said he would have to see clear evidence that a juror performed personal research and used outside information to come to a decision.

In the local battery case, the blog item Reynolds posted probably won't set any new case law.

Reynolds told the Tribune that he followed the judge's orders and looked up nothing about the case until the trial was over. The verdict was handed in long before he knew the circumstances of the victim's death.

"I was very, very careful not to look into anything before the end of the trial," Reynolds said. "But after the fact, there's not much harm in researching it."

Harvey Moore, who runs a Tampa jury consulting firm, said not all lawyers are worried about the Internet - some embrace it.

While lawyers are asking potential jurors about their lives and beliefs, Moore has sat in the courtroom researching those people online. Sometimes, lawyers and consultants continue researching jurors after a trial has ended.

"You might see all sorts of things," Moore said.

Reporter Thomas W. Krause can be reached at (813) 259-7698 or tkrause@tampatrib.com.