Trial lawyers increasingly concerned about jurors' online posts
; some want jury rules updated
By MARYCLAIRE DALE | Associated Press Writer 4:29 PM
PHILADELPHIA (AP) — Eric Wuest's post late Friday to Facebook friends teased: "Stay tuned for a big announcement on Monday everyone!"
Wuest wasn't hinting at an engagement or new job. Instead, the law firm benefits coordinator was suggesting the verdict was near after five months as a juror in a high-profile criminal case.
On Monday, a nervous Wuest found himself in the judge's chambers, defending his veiled posts about the corruption trial of former state Sen. Vincent Fumo in Philadelphia. But he is not alone in posting his courtroom musings online, according to one lawyer who studies Twitter.
"Dozens of people a day are sending tweets or Facebook updates from courthouses all over America," said Anne W. Reed, a Milwaukee trial lawyer and jury consultant who writes a blog that follows juries and social networking sites.
While most posts are innocuous, Reed said, a few cases have raised eyebrows — and questions about whether judges need to clarify jury instructions about online communications.
In Arkansas last week, a building materials company and its owner appealed a $12.6 million verdict against them, alleging that during the trial a juror posted Twitter messages that showed bias. Juror Johnathan Powell, of Fayetteville, told The Associated Press that the complainants were "grasping at straws" to try to undo the award.
A federal judge in Florida last week had to declare a mistrial after an eight-week drug trial after learning that no fewer than nine jurors had done online research about the case, according to the New York Times.
During his closed-door meeting with U.S. District Judge Ronald L. Buckwalter, Wuest said social networking sites gave him an outlet "to journal my thoughts," according to a tape of the meeting.
"Nobody really could know exactly what I was talking about without directly asking me. ... That's sort of the appeal of the whole Facebook, Twitter thing," said Wuest, 35, of suburban Collegeville.
There is little case law on the subject, although the Philadelphia case may create some. Lawyers for Fumo, who was convicted shortly after Wuest met with the judge Monday on all 137 corruption counts, plan to appeal the verdict based on Wuest's posts.
"He's not talking to himself, no matter what he says," defense lawyer Peter Goldberger argued.
In a court brief seeking Wuest's removal, he noted that Wuest had not advised any of his online followers not to communicate with him about the trial.
"If anything, the 'status' posts would seem like an invitation to do just that," he wrote.
Buckwalter declined to remove Wuest, saying he found the juror credible when he said no one outside the jury had influenced him.
Reed said the case shows "staying away from the news means staying away from a lot more things than it used to mean."
"I know many judges are talking about how to change the emphasis of those old instructions ... to really stress to jurors that talking to somebody about the case means not just speaking with your lips, but also typing," Reed said.
She predicts that more judges will limit jurors' access to cell phones — which they can use to post messages or otherwise access the Internet — in the courtroom or jury room.
The federal judiciary currently gives individual courthouses discretion to set their own policies, according to the Administrative Office of the U.S. Courts.
That wouldn't have stopped Wuest, however. He said he sent one tweet from the train on his way home from court and, based on the time, apparently posted other messages from home.
"This is it ... no looking back now!" he wrote on Twitter Thursday, the fifth day of deliberations in the Fumo case.
The same could be said about jurors and cyberspace, Reed said.
"I think Johnathan's tweets are great," she wrote of the Arkansas juror on her Deliberations blog. "But even if you don't like them as much as I do, you're wasting your energy if you think you can stop social networking jurors."
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