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Focus: Defence lawyers warned of mistrial risks

|Written By Glenn Kauth

High-profile New York defence lawyer Benjamin Brafman used a session at the Criminal Lawyers’ Association conference in Toronto last month to call on his Canadian colleagues to tackle the growing challenges posed by technology and social media in the courts.

'As criminal lawyers, we need to be at the forefront of this discussion,

“It’s very frightening to those of us who believe in the trial-by-jury process,” said Brafman in reference to jurors’ ability to simply research the cases they’re hearing through Google rather than rely only on the evidence presented in court.

Brafman, who has represented famous accused such as Dominique Strauss-Kahn, used his session at the CLA conference on Nov. 16 to highlight the many ways technology is complicating — but also occasionally helping — the work of defence lawyers in court. For example, he referred to a trial in Kentucky in which two jurors had added the mother of a murder victim whose case they were hearing to their list of friends on Facebook. Both, he noted, had said under oath they knew no one connected to the case. “It was impossible for these people not to know who this woman was,” said Brafman, who noted instances like that have been the cause of several mistrials in the United States. The issues have also arisen in Canada, more recently in a New Brunswick case in which a judge declared a mistrial over a juror’s negative comments online about the accused, Fred Prosser.

The Kentucky case, Sluss v. Commonwealth of Kentucky, was the subject of a Supreme Court of Kentucky ruling on Sept. 12. It dealt with the appeal of Ross Brandon Sluss of his conviction for murder, assault in the first degree, assault in the fourth degree, driving under the influence of intoxicants, and tampering with physical evidence. It stemmed from a June 24, 2010, crash in Martin County, Ky., in which 11-year-old Destiny Brewer died.

It was a high-profile case given the tragic circumstances and Brewer’s age. As it attracted lots of discussion on web sites such as Facebook and Topix, the trial court engaged in extensive voir dire procedures in order to ensure a fair trial. It struck more than 50 potential jurors for cause, the Supreme Court noted. Sluss, who received a life sentence, appealed in part on the basis of juror misconduct after learning that two jurors, Virginia Matthews and Amy Sparkman-Haney, were friends on Facebook with the victim’s mother, April Brewer. In support of his motion, he provided screenshots showing Matthews and Sparkman-Haney were friends with Brewer. He also presented evidence that Brewer’s Facebook page contained information on her child’s death.

During the voir dire, neither Matthews nor Sparkman-Haney spoke up when asked whether they knew the victim or her family. The trial judge also asked if they were on Facebook or Topix and whether they knew anything about the case. Sparkman-Haney said she had seen something about it on Facebook. Matthews, meanwhile, denied having heard about it and “responded unequivocally” that she wasn’t on Facebook or Topix. Sluss argued the mere fact that someone was a Facebook friend with Brewer “creates a presumption of juror bias and should have been disclosed during voir dire.”

The Supreme Court, however, didn’t automatically agree with that assertion as friendships on Facebook and other social networking sites “do not necessarily carry the same weight as true friendships or relationships in the community, which are generally the concern during voir dire. The degree of relationship between Facebook ‘friends’ varies greatly, from passing acquaintances and distant relatives to close friends and family. The mere status of being a ‘friend’ on Facebook doesn’t reflect this nuance and fails to reveal where in the spectrum of acquaintanceship that relationship actually falls.”

Brewer, in fact, had almost 2,000 Facebook friends. So what effect did her online relationship with Matthews and Sparkman-Haney have on their ability to sit as jurors?

The Supreme Court ultimately ordered a new trial but not merely on the grounds of the Facebook relationships. “The problem in this case, however, is the jurors also appear to have made misstatements during voir dire,” the court stated. “During individual voir dire, Virginia Matthews responded that she was not on Facebook when asked by the trial court, strongly suggesting that she was not even a member of the web site. The appellant thus had no reason to explore the extent of the Facebook interaction between juror Matthews and April Brewer because he could reasonably believe, given her statement made under oath, that juror Matthews was not a member of the web site. Further, both juror Sparkman-Haney and juror Matthews did not respond during general voir dire to the question about knowing any of the victims or their families. The appellant thus had no reason to explore the extent of any possible relationship between them because he could reasonably believe, given that they were under oath, that they did not know the mother.”

But the Supreme Court also had to look at whether the information was discoverable before the verdict. While Sluss failed to assert that he was unable to discover the Facebook friendship prior to the verdict, the Supreme Court noted the issue was one it had never had to look at before. “Without precedential guidance, appellant’s failure to demonstrate in his motion for a new trial why this new evidence could not be discovered prior to the verdict is excusable since there was little reason for him to think he needed to investigate a juror’s Facebook account or that he even could have done so ethically given the state of the law at the time of the trial,” the court stated. It went on to refer to the “unsettled question” about the extent to which defence counsel can go in investigating jurors during or after trial. It then referred to other analyses that indicated that while defence lawyers can’t befriend jurors on Facebook, they can use the information if it’s available to the public on a social media site.

“If the information about a juror is available to the public on a social media site, ethics opinions from other jurisdictions suggest that counsel may investigate that information,” the Supreme Court stated.

“Given many attorneys’ unfamiliarity with the minutiae of social media, it is not unreasonable for an attorney to be cautious as to his conduct while investigating jurors during the trial.”

In the end, the Supreme Court sent the case back to the Martin Circuit Court for a hearing into whether the trial judge should have struck Matthews and Sparkman-Haney for cause. If it determined it should have struck the pair for cause, it was to order a new trial. If it found otherwise, it was to make findings of fact in support of its conclusion. In the meantime, the Supreme Court put the remaining issues on appeal on hold pending the outcome of that hearing.

For Brafman, the case is a good example of the difficulties lawyers face in confronting social media. He noted, for example, that there have been 90 cases in the United States in recent years that were subject to challenges due to alleged juror misconduct. “I’m a believer in the jury system, to be honest with you,” said Brafman, who argued the ability of jurors to simply research a case on their cellphones using Google is a growing threat to the process.

In one case in Arizona, jurors Googled the legal definitions of a few terms — first- and second-degree murder as well as premeditation — and shared their research with others on the panel. They then convicted the accused of first-degree murder, but the Arizona Court of Appeals later reversed the conviction in large part because the Internet definitions differed significantly from the court’s instructions.

Given the concerns, Brafman called on lawyers to be aware of the issue and highlighted the need for the courts to consider model instructions for jurors. They would include telling jurors they can’t look up the case on social media and asking them to sign an oath saying they understand the rules. At the same time, judges need to do more to explain the rules and why they exist, he said, noting some legal organizations have attempted to do just that.

“You may not use these electronic means to investigate or communicate about the case because it is important that you decide this case based solely on the evidence presented in this courtroom,” reads the proposed model jury instructions prepared by the judicial conference committee on court administration and case management circulated to U.S. district courts. “Information on the Internet or available through social media might be wrong, incomplete or inaccurate. . . . In our judicial system, it is important that you are not influenced by anything or anyone outside of this courtroom.”

While those model instructions and the cases Brafman discussed come from the United States, he said the issues apply to Canada as well. “Our systems are very similar, so my concerns should be your concerns,” he said.

“We can’t be relaxed,” he added, noting lawyers need to be vigilant when it comes to understanding the legal issues social media can present.

On the bright side, Brafman noted that while technology can derail cases, it can also help defence lawyers exonerate their clients. In one case, for example, a woman who alleged someone had sex with her while she was asleep saw her claims undermined by texts showing otherwise, according to Brafman. “Texts either save you or bury you,” he said as he called on lawyers to stay on top of the issues presented by technology in its many forms. “As criminal lawyers, we need to be at the forefront of this discussion,” he said.

“We’re in a profession where every word counts.”

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