The Denver Post

Calif. jurors who misuse internet could face fines

A bill would allow a penalty for those researchin­g trials.

- By Sudhin Thanawala

san francisco» Jurors who threaten to derail trials by researchin­g them on Google or posting comments about them on Twitter are often dismissed with nothing more than a tonguelash­ing from a judge.

But that may soon change in California. Legislatio­n supported by state court officials would authorize judges in some counties to fine jurors up to $1,500 for social media and internet use violations, which have led to mistrials and overturned conviction­s around the country.

As jurors and judges have become more technology savvy in recent years, the perils of jurors playing around with their smartphone­s have become a mounting concern, particular­ly in technology-rich California. A 2011 state law made improper electronic or wireless communicat­ion or research by a juror punishable by contempt.

Supporters of the latest California measure say a potential fine would give teeth to existing prohibitio­ns against social media and internet use and simplify the process for holding wayward jurors accountabl­e.

“It’s disruptive of the judicial process, and there ought to be a fairly simple and convenient way for a judge to sanction a juror based on the order that the judge has given,” said Assemblyma­n Rich Gordon, D-Menlo Park, who authored the legislatio­n.

But critics question whether it will have any practical effect on jurors who are constantly on sites such as Facebook and Twitter and suggest judges vet the social media activity of potential jurors before seating them.

“If you have an internet addict who just can’t psychologi­cally stop, you may want to excuse that person,” said Paula Hannaford-Agor, who studies juries at the National Center for State Courts.

Brian Walsh, a judge in the Silicon Valley county of Santa Clara, said a fine could also change the dynamic between judges and juries.

“You want to present the jurors’ obligation­s to serve as an inviting opportunit­y to participat­e in the democratic process,” he said. “One could consider it counterpro­ductive to be laying out all the penalties a juror can incur if they blow it.”

It is not clear exactly how

If you have an internet addict who just can’t psychologi­cally stop, you may want to excuse that person.” Paula Hannaford-Agor, who studies juries at the National Center for State Courts

many times jurors’ social media or internet use has affected trials. But anecdotal evidence suggests it is more than sporadic.

Eric Robinson, co-director of the Press Law and Democracy Project at Louisiana State University, said he used to track cases of juror social media or internet misconduct using news accounts and other sources, but there were so many “it got to be more trouble than it was worth.”

“Those are the ones we hear about,” he said. “I’m sure it happens a lot more.”

An Arkansas court in 2011 threw out a death row inmate’s murder conviction in part because of tweets. One said “Choices to be made. Hearts to be broken.” Another said “It’s over” less than an hour before the jury announced its verdict.

A New Jersey appeals court in 2014 tossed the heroin possession conviction of two men after a juror was accused of searching the defendants’ names online and finding informatio­n about their criminal records.

A California appeals court in January cited juror internet research in throwing out a fraud conviction against an investment firm CEO. The juror looked up a case involving an accountant the defendant blamed for the fraud.

Judges warn jurors against using social media and the internet, and have the power to hold them in contempt if they violate those rules.

Greg Hurley, a lawyer who studies juries at the National Center for State Courts, said he is unaware of any state that fines jurors outside the contempt process.

California judges say the contempt process can be time-consuming and is rarely invoked. A juror facing contempt has a right to an attorney, and the court could get bogged down in a lengthy formal hearing. So judges often opt to replace a wayward juror with an alternate to keep the proceeding­s moving.

“Historical­ly, contempt has been something judges are told, ‘Don’t do,’ ” said J. Richard Couzens, a retired judge from California’s Placer County who now rotates through courts around the state. “You have to follow so many rules to institute a contempt process.”

Couzens, a member of the judicial committee that recommende­d the fines legislatio­n, said he dismissed a juror years ago in a theft case for using a cellphone to figure out the value of a stolen item.

The fine would be similar to a traffic citation, making it relatively easy to dispense, Couzens said.

Judges could mention it when warning jurors against internet and social media use, said Steve Austin, presiding judge in California’s Contra Costa County.

“At the very least with the sanction, it would be a good thing you’d be able to tell the jurors,” he added.

The legislatio­n initially called for giving all state judges the power to fine wayward jurors. But it was scaled back after legislator­s expressed concern that it could dissuade potential jurors from serving.

The bill now authorizes the judiciary to select some county courts for a five-year pilot program, which a legislativ­e analysis said could save participat­ing courts money. It is before the full assembly.

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