Cases Challenged Over 'Tweeting' Jurors

March 17, 2009— -- Jurors aren't supposed to discuss the cases they hear outside the jury deliberation room. But what happens when they post comments on social networking sites?

The issue has disrupted two recent cases in Pennsylvania and Arkansas. Defense attorneys in Philadelphia said Monday they plan to appeal the conviction of former State Sen. Vincent Fumo because a juror discussed the case on Facebook and Twitter.

Last week, a building materials company in Arkansas appealed a $12.6 million verdict, saying a juror's Twitter messages sent before and after the trial showed that he was biased against the company.

Jurors are supposed to consider only evidence presented in court and are typically admonished by the judge not to read news accounts of a trial or to discuss the case outside jury deliberations.

There have been very few reported cases of jurors using social networking sites to post comments during trials, but lawyers say courts will need to learn how to deal with jurors who communicate online.

A recent search on Twitter for the term "jury duty" found dozens of people posting comments about jury duty, though most were general complaints, not discussions of what was happening in the jury room.

"Our [legal] doctrine is not made for a wired universe," said Daniel Richman, a former federal prosecutor who teaches at Columbia Law School.

"The jury system is based on this anachronistic notion that members of the community will come in to court, render their decision and then leave and become ordinary members of the community again," he said. "We're coming into a world where the stability of that model is in question."

Courts tend to be more concerned with preventing outside influences on the jury, Richman said, rather than with jurors communicating their thoughts about the case with the outside world without a response.

Nothing necessarily makes Twittering a problem any different than other forms of communication, said Anne Reed, a lawyer and jury consultant in Milwaukee. Courts will usually consider how widespread the information was spread, whether the juror discussed the substance of secret jury deliberations, and whether there is any indication that the juror was not honestly deliberating, she said.

"There's one simple rule that I tell everyone," she said. "If the person said the same thing offline, what would we do?"

The issue has come up in at least two recent cases. After a nearly five-month-long trial, Fumo was convicted Monday morning of 137 counts, including obstruction of justice and defrauding the state Senate, a charity and a museum of $3.5 million. He was released on bail pending sentencing.

The verdict was announced shortly after Judge William Yohn ruled that a juror could remain on the jury panel despite his posts about the case on Facebook and Twitter. Fumo's lawyers filed an emergency motion over the weekend, asking the judge to stop the jury's deliberations and question or remove one or more jurors.