Tweeting, Dozing Give Rise To Retrial
I found this article this week and wanted to pass it on. We like to keep our readers apprised of the latest news related to social media and the use of mobile phones. It is amazing to me how easy it is for people to adopt mobile phones and new technology without retaining common sense and all the schooling they ever had!
Writer: Alison Sider Arkansas Democrat Gazette
One juror fell asleep and another posted several “tweets,” so Erickson Dimas-Martinez did not get a fair trial, the Supreme Court ruled Thursday, calling such behavior “juror misconduct.”
A fair trial is one in which jurors stay awake and obey the judge’s instructions, the high court said, and the trial judge in this case, David Clinger of Benton County Circuit Court, abused his discretion in failing to acknowledge the Tweeting juror’s “inability to follow the court’s directions.”
The Supreme Court over-turned Dimas-Martinez’s 2010 murder conviction and death sentence, ordering a new trial.
He had been convicted of capital murder and aggravated robbery in the 2006 shooting death of 17-year old Derrick Jefferson. The sentences were death by lethal injection for the murder and life in prison for the robbery.
During the trial, Clinger questioned both of the jurors about their behavior, but ultimately decided not to dismiss either of them.
But sleeping and tweeting are unacceptable for jurors, Justic Donald Corbin wrote in the Supreme Court’s unanimous opinion.
At the start of the trial, Clinger warned jurors not to “twitter” about the case, noting that a Washington County judge had considered over-turning a multimillion-dollar verdict based on a juror’s tweets.
But Randy Franco posted several tweets on his Twitter account anyway during the trial, some of which seemed to be related to the proceedings.
Dimas-Martinez’s attorney argued that Franco had “flagrantly violated” the court’s instructions not to discuss the case with others and not to post about it on Twitter.
Clinger questioned Franco about it, but ruled that even through Franco had admitted disregarding the instruction, it was “not a material breach” of the instruction or the oath Franco took as a juror.
Franco continued to use Twitter during jury deliberations.
During oral arguments before the Supreme Court last month, the state argued that Franco’s tweets had been one-sided musings and personal reflections that did not constitute a discussion of the trial.
The Supreme Court disagreed, saying that while the content of the tweets might not have done any damage, it still mattered that the juror disregarded specific instructions and continued to do so even after being questioned about violating them.
“Because of the very nature of Twitter as an online social media site, [Franco’s] tweets about the trial were very much public discussions,” Corbin wrote. “Even if such discussions were one-sided, it is in no way appropriate for a juror to state musings, thoughts, or other information about a case in such a public fashion.”
The possibility of prejudice is too high when jurors are allowed to post their thoughts about a trial in any online forum, Corbin wrote, pointing to a Supreme Court administrative order issued in 2010 prohibiting the use of electronic devices in court to “broadcast, record, photograph, e-mail, blog, tweet, text, post, or transmit by any other means” except when allowed by the court.
Particularly problematic was a tweet saying, “It’s over,” which was posted 50 minutes before the jury announced that it had reached a verdict in the sentencing phase of the trial. Since one of the juror’s followeres was a reporter for the website Ozark Unbound, the media had advance notice that the jury had completed its deliberations, which Corbin wrote was “simply unacceptable.”
The court asked its Committees on Civil and Criminal Practice to consider whether jurors’ access to their mobile phones should be limited during trials.
A juror who was asleep for at least five minutes of the trial, prompting the judge to send him a glass of water via the bailiff, also violated instructions that jurors listen to and consider all of the evidence presented, the Supreme Court ruled.
Though the juror said in response to questions from the trial judge that he had not missed much while he dozed off, the judge shouldn’t have taken his word for it, the Supreme Court said.
“A juror who was asleep for at least five minutes has no way of knowing what he may have missed during the presentation of the evidence,” Corbin wrote. “And, contrary to the state’s position at oral argument of this matter, it is not acceptable for a juror to doze off, as long as the juror hears the ‘vast majority’ of the evidence.”
The constant access to news and social media offered by smart phones and other devices has caused problems in court cases around the country.
Ben Holden, director of the Donald W. Reynolds Center for Courts and Media, said some judges have made jurors sign written pledges not to tweet or post about trials online.
In an article in the Reynolds Courts and Media Law Journal last spring, Maryland retired circuit judge Dennis Sweeney cited cases in California, Pennsylvania, Maryland and several other states where verdicts have been overturned or mistrials declared because of jurors using Google, Wikipedia, Facebook and other websites tor esearch issues in trials or to communicate with friends about trials.
Last year a Reuters Legal analysis of data from the Westlaw online research business showed that since 1999, at least 90 verdicts have been challenged because of alleged juror misconduct relating to Internet activity.
At the Supreme Court, the case is CR11-5, Erickson Dimas-Martinez v. State of Arkansas.
After reading this article folks, I had to wonder about the fate our country is in when after all the tv we’ve watched we still don’t get that we can’t talk about a trial while it is going on! Additionally, I have to wonder about these folks who are more interested in tweeting and posting, much like my teenage son, than heeding their civil right and duty as jurors. I know in many cases we dread sitting in court, but we are part of the process, a process we would want someone to stay awake for and/or pay attention to, not to mention disseminating information about the fate of our lives for grins and giggles just because we have a shiny toy in our pocket. Come on folks, grow up! Use the shiny new phones to market, not to sidestep the democratic process and folks rights to a fair trial.