Archive for the ‘jurors and juries’ Category

Record Jury Verdict for Online Defamation in Texas

Friday, April 27th, 2012

topixJurors in Texas have handed a $13.8 million libel verdict to a married couple defamed on Topix.

Debra Cassens Weiss reports in the ABA Journal that Texas lawyer Mark Lesher and his wife Rhonda filed the suit against four defendants who posted anonymous comments accusing the couple of molestation, drug dealing, and perverted sexual behavior.

The Tarrant County jury apparently set a new record for online-libel verdicts. According to the Leshers, more than 25,000 defamatory posts forced Mark to shutter his law practice and Rhonda to close her beauty salon.

Meagan Hassan, the Lesher’s attorney, told the Fort Worth Star-Telegram, “This was clearly a vendetta.”

“We originally sued 178 John and Jane Does, and it all came down to two IP addresses,” she said. That led them to a married couple, Shannon and Gerald Coyel, and two employees of the couple, Charlie and Pat Doescher.

A few years ago, Shannon Coyel had accused the Leshers of sexually assaulting her. That led to a case and an acquittal in 2009.

Court in Texas Should Uphold the Full Lousiness of Patent Law

Friday, February 24th, 2012

Over on my Pixelization blog, I’ve explained why I think a ridiculous patent that threatens Silicon Valley should have carried the day in a federal court in Texas:
Court in Texas Should Have Upheld the Full Lousiness of Patent Law

Juror Tries to Friend Litigant

Tuesday, February 7th, 2012

WTSP TV logoBeau Zimmer of WTSP television in Florida reports that Jacob Jock, a male juror in a vehicular negligence civil suit attempted to friend the “young, attractive” female defendant. Good for her she didn’t accept the friending. Instead, she altered her attorney, who told the judge, who kicked the guy off the jury.

Then the ex-juror, who has a large helping of some kind of reverse common sense, proceeded to get on Facebook and brag about how he got out of jury service.

That finally did it, and the judge held him in contempt. Now he’s facing possible jail time.

BTW, USA Today mis-credited Beau Zimmer as “Ben Zimmer”.

Jury Instructions Regarding Blogs, Twitter, and Facebook

Wednesday, January 11th, 2012

New trends in how juries are being instructed about social media have been a recurrent topic on this blog. I thought it might be interesting to let you see that those Jury instructions actually look like in the flesh.

These particular jury instructions come from a Missouri automobile-collision negligence case, Molina v. Harlan. The full instructions comprise 1641 words. (I’ve put the whole set of instructions in the Blog Law Blog library.) The portion concerning juror research or communication about the case is 335 words (so, it’s a little more than a fifth of the whole thing).

One thing that strikes me as kind of funny, right off the bat, is that even as the instructions are an attempt to stay in step with the times, they show an old-school haplessness with punctuation and capitalization. Not only do they capitalize “Internet,” but they lowercase and place in quotes “‘facebook’,” “‘myspace’,” and “‘twitter’.”

What’s up with that? Does the court think that “facebook” is some kind of slang that the young kids are using? It’s very odd.

And, of course, another sign of out-of-touchness is any reference at all to Myspace.

(8) PROHIBITION OF JUROR RESEARCH OR COMMUNICATION ABOUT THIS CASE

Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure, or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here.

Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case, or any witnesses, parties, lawyers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, e-mail, blog, tweet, text, or post anything about this trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.
If any of you break these rules, it may result in a miscarriage of justice and a new trial may be required.

Trial of Accused Terrorist Blogger Tarek Mehanna Set to Open Today

Thursday, October 27th, 2011

Tarke Mehanna forward mugshotAccused terrorist blogger Tarek Mehanna (Image: Sudbury Police Department.)

Opening statements are expected to begin today in the trial of Tarek Mehanna on terrorism-related charges stemming from alleged support for Al Qaida.

Federal prosecutors say the 29-year-old, born in Pittsburgh and raised in Boston, aided Al Qaida by promoting the organization’s cause on his blog. Specifically, prosecutors say he translated into English distributed online Al Qaida texts originally written in Arabic.

Mehanna is asserting the First Amendment in defense. His lawyers argue that his speech is constitutionally protected, since it was not done in coordination with a terrorist organization. They have sought from the judge a jury instruction on constitutional free-expression rights.

Mehanna faces life in prison if convicted.

More:

Busy-Body Legislating: California’s New Law on Tweeting Jurors

Thursday, August 25th, 2011
Assemblymember Felipe Fuentes in a suit smiling with arms crossed

Assemblymember Felipe Fuentes, author of California’s latest silly law (Photo: ASMDC)

A new California law signed by Governor Jerry Brown threatens jurors with jail time if they tweet, blog, or otherwise use the internet to communicate about their trial. The bill is the handiwork of Democratic San Fernando Valley Assemblymember Felipe Fuentes.

I’ve looked at the text of the law. At best, it’s silly. At worst, it’s hurtful.

The first thing the law does put an additional requirement on judges when they make their admonishments to the jury. Under Code of Civil Procedure §611, judges already have to explain that jurors are prohibited from talking about, researching, or disseminating information about the trial. The new law requires that judges “clearly explain,” that this admonishment “applies to all forms of electronic and wireless communication.”

Ooooh. Notice how cleverly the law was drafted with the use of the word “clearly”. If judges were merely required to “explain” this to jurors, there would be a huge loophole allowing judges to undermine the spirit of the law by issuing their explanation in an unclear manner.

To drop the sarcasm for a second, this strikes me as pure busy-body lawmaking. There’s no need to micromanage courtroom procedure through statute. Judges are completely capable of fine-tuning admonishments on their own. If this part of the law does anything, it seems to me it might create an argument for throwing out otherwise perfectly good jury verdicts on appeal. If a judge with decades of experience makes the mistake of issuing a standard admonishment, not complying with the technicality of the new law, there now appears to be a basis in statute for tossing the verdict. And even if the judge does the explanation, disappointed litigants can still quibble with the judge’s words, arguing that the issue wasn’t explained “clearly.”

Then there’s the aspect of the new law that’s been given the press coverage: Jail time for tweeting jurors.

Here’s what the new law adds to the list of misdemeanor offenses listed in Code of Civil Procedure §1209:

Willful disobedience by a juror of a court admonishment related to the prohibition on any form of communication or research about the case, including all forms of electronic or wireless communication or research.

Note that before Fuente’s new law, §1209 already made the following a misdemeanor:

When summoned as a juror in a court, neglecting to attend or serve as such, or improperly conversing with a party to an action, to be tried at such court, or with any other person, in relation to the merits of such action, or receiving a communication from a party or other person in respect to it, without immediately disclosing the same to the court[.]

and this:

[a]ny … unlawful interference with the process or proceedings.

The current law seems to cover everything of substance. The only thing the new provision does that I can see is make it a jailable offense to use the internet in such a way that is neither improper nor interfering. I guess I don’t understand why we would want to jail jurors under such circumstances.

Jurors are already the lowliest souls on the schedule of recipients of rights and liberties. Prisoners have more legal safeguards for their rights than jurors. Without committing or even being suspected of a crime, jurors are swept off the streets and detained against their will, their freedoms of expression and association instantly curtailed. Moreover, jurors can made to serve for months on end and can be sequestered from the rest of the world – all without due process. Is it really necessary to slap them around with threats of jail?

I poked around on Felipe Fuentes’s website. I don’t see any press release he’s issued about this regrettably successful project. Maybe he’s not too proud of it.

Last year, Governor Arnold Schwarzenegger vetoed a bill similar to this one because he considered current warnings to jurors to be adequate. He had some common sense. I’m sorry to see it gone missing in Sacramento now.

Now That is Impressive

Wednesday, May 25th, 2011

I was looking back at the bio of social-media-guru-attorney Michelle Sherman, and I noticed that when she left being a partner at Sheppard Mullin to go to the L.A. County Public Defenders office for a year to sharpen her trial skills, she won all of her jury trials.

I must have read that too quickly in the past, because I hadn’t really appreciated that. Dang.

You quite often hear about prosecutors who have won all their jury trials. Big deal. Let’s be honest. As a prosecutor, winning all your jury trials is kind of your job. If there’s a trial you don’t think you can win, then you can (and in most cases should) let the defendant out on an easy plea deal or simply drop the charges altogether. Then, on top of that, prosecutors have by far the easier row to hoe in court. They have better resources to devote to cases, and juries are famously inclined to side with “law and order.”

Now, public defenders don’t get to choose their clients, and they don’t get to drop the charges if they get tired of the case. And nearly every case they fight at trial is one the prosecutor figured was in the bag. So winning all your jury trials as a public defender is really something. I don’t know how many trials she did, but even if it was just two, that’s really something.

Jury Instructions on Blogs

Tuesday, October 26th, 2010

For a while now, trial judges have been careful to warn juries against using social media to communicate about their trial. Here is an example of how that is being done. Below are recent jury instructions from the case of Digital Ally, Inc. v. Todd Elder & Co. from a state court in Jackson County, Missouri.

(8) PROHIBITION OF JUROR RESEARCH OR COMMUNICATION ABOUT THIS CASE

Your deliberations and verdict must be based only on the evidence and information presented to you in the proceedings in this courtroom. Rules of evidence and procedure have developed over many years to make sure that all parties in all cases are treated fairly and in the same way and to make sure that all jurors make a decision in this case based only on evidence allowed under those rules and which you hear or see in this courtroom. It would be unfair to the parties to have any juror influenced by information that has not been allowed into evidence in accordance with those rules of evidence and procedure or to have a juror influenced through the opinion of someone who has not been sworn as a juror in this case and heard evidence properly presented here.

Therefore, you must not conduct your own research or investigation into any issues in this case. You must not visit the scene of any of the incidents described in this case. You must not conduct any independent research or obtain any information of any type by reference to any person, textbooks, dictionaries, magazines, the use of the Internet, or any other means about any issues in this case or any witnesses, parties, layers, medical or scientific terminology, or evidence that is in any way involved in this trial. You are not permitted to communicate, use a cell phone, record, photograph, video, email, blog, tweet, text, or post anything about his trial or your thoughts or opinions about any issue in this case to any other person or to the Internet, “facebook”, “myspace”, “twitter”, or any other personal or public web site during the course of this trial or at any time before the formal acceptance of your verdict by me at the end of the case.

If any of you break these rules, it may result in a miscarriage of justice, and a new trial may be required.

The complete document is available on Westlaw at 2010 WL 3417831.

Does the R. Allen Stanford Criminal Trial Gag Order Apply to Blogs?

Tuesday, October 5th, 2010

Noting that there has been a willingness to attempt to try the R. Allen Stanford / Ponzi-scheme case in the press, Judge David Hittner of the U.S. District Court for the Southern District of Texas issued a sua sponte gag order [pdf] in the case on Friday.

Here’s the operative section:

[T]he Court hereby

ORDERS that from this date until the final disposition in this case: [the attorneys, the parties, all witnesses, and alleged victims,] their representatives, and their agents, including publicity agents, shall not give, authorize, or permit any extrajudicial statement to any person associated with any public communications media relating to the trial, the parties, the witnesses, or the issues in this case, which [may interfere with a fair trial and which is not public record].

Now, you tell me: Does that stop the victims, parties, and attorneys from blogging about the case?

The phrasing of the order is definitely from the era of old media. It’s written as if the people subject to the gag order are not themselves associated with “public communications media”. These days, aren’t we all?

On the face of it, it doesn’t look like the order bans blogging. But I can’t believe that Judge Hittner meant to bar parties and witnesses from trying the case on CNBC but meant to allow them to try the case in the blogosphere.

As a point of comparison, we are now seeing jury instructions that explicitly ban blogging by jurors about their cases. So why wasn’t this order phrased with the web in mind? This sure looks like another example of the judiciary failing to keep pace with changing times.

Appeals Court OKs Prosecuting Blogger for Threats Against Juror

Tuesday, July 13th, 2010

Eric P. Robinson at Citizen Media Law Project has this: 7th Circuit Holds Blogger Can Be Prosecuted For Threatening Juror.

The case, United States v. William White, involves an alleged threat against the foreperson of the jury who convicted white supremacist leader Matt Hale for soliciting the murder of a federal judge.

White is alleged to have posted the juror’s name, address, and phone numbers, along with the name and a picture of the juror’s cat. Indicted under 18 U.S.C. § 373 for solicitation of violence against the juror, White claimed the First Amendment privileges the publication of the information about the juror.

The 7th Circuit held the indictment was adequate to proceed to trial, and that the First Amendment defense could be raised at the trial stage.

Robinson’s post explains the case and the legal issues thoroughly yet concisely in his post.

A Question About Jurors Online

Wednesday, June 2nd, 2010

Following up on my last post, a question:

At what point does checking out your juror online constitute unpermitted communication with a juror?

Obviously, you can’t “friend request” a juror to get access to their Facebook page. And you can’t leave a comment on their blog.

But provided you do so through an anonymous identity, can  you “follow” them on Twitter? That creates a kind of online relationship, though it is one-way and does not identify you as a lawyer.

What about visiting someone’s blog? The mere act of visiting someone’s blog leaves information for the blogger to find about your visit. It could, depending on the circumstances and how much information the blogger saves and reviews, reveal the law firm that checked out the juror’s blog. So be careful! But even if you take care to make sure that you review of the blog does not leave your fingerprints, does that count as a communication? In some ways, it is like “following” a person on Twitter with an anonymous identity. But it does feel less like a relationship than “following.” But is it a communication? With the internet, communication is always two-way, at least in certain limited ways.

Reading Jurors’ Blogs, Tweets and Facebook Pages

Tuesday, June 1st, 2010

From Ann T. Greeley, a trial consultant and psychologist, just published in the ABA’s Brief:

Jurors’ uses of social media provide a source of information about them. Jurors are addicted to their Facebook pages, their Twitter accounts, and their myriad Internet sources. Their use of these accounts to post personal information, to blog, and to post comments has become a source of pretrial data for those who know how to search the right Web sites. Trial consultants have developed methodologies for these searches that yield pretrial attitudinal data as well as jury selection information.
(39-SPG Brief 48, Spring 2010)

Yup. There’s a wealth of information you can learn about jurors by going online.

If you are quick enough, maybe with someone’s help outside the courtroom, you can read juror’s blogs, tweets, and facebook pages during voir dire, to inform your decision about whether or not you are going to use peremptory strikes to boot them from the jury box.

Even if you miss that opportunity, you can still scope them out afterward to learn about their likes, dislikes, fears, passions, prejudices, and allegiances – all of which may allow you to tailor your arguments and trial presentation right for them.

Jurors used to be so mysterious. Now everyone is getting less and less mysterious.

The bigger this world gets, the more personal it gets. It’s weird, but that’s how we live today.