Juror blog post sets convicted cheat free

The former owner of a prep school admissions business who was convicted of defrauding clients two years ago will be set free during the appeal of his conviction after he brought up potentially game-changing, bizarre juror misconduct, a federal appeals court ruled.

Mark J. Zimny, who in 2015 was sentenced by U.S. District Court Judge Rya W. Zobel to 63 months in prison, will be released. A federal appeals court Tuesday found that he made a legitimate claim that one of the jurors who convicted him had been talking about a blog post that chronicled allegations against him.

“If we assume ... that Juror No. 8 was ‘spouting about’ the highly prejudicial blog post and its comments to other jurors ‘since day one’ of trial so much so that the other jurors ... got annoyed, it is likely — although not inevitable — that this juror misconduct was prejudicial and not harmless,” wrote Circuit Judge O. Rogeriee Thompson.

The blog, called “Shots in the Dark,” had dozens of anonymous comments posted on it about Zimny and the apparent scheme. Commenters made requests for status updates from the trial, and, according to court records, a juror responded: “It’s gone a week longer than the judge has hoped,” and that half the jury “saw him guilty and the others didn’t.”

The juror later admitted to writing the comments but that “it was only after she left the jury that she had found the blog,” according to court documents.

Later, another anonymous commenter claimed to be a juror and called out Juror No. 8 for lying. That was enough for the federal appeals court to order Zimny released as an investigation into the juror mess unfolds.

“Zimny has done all he can do under our case law to develop the record on this question without the court’s assistance, and now all that remains is for that investigation to take place,” Thompson wrote.

Linda Thompson, one of Zimny’s appellate attorneys, said “they don’t do this very often. It’s an interesting case, and we look forward to the investigation.”