Internet and juries don't mix: What goes on in the courtroom stays there
An hour before convicting a man of first-degree murder, an Allegheny County jury lost one of its members. A female juror had returned to the jury room Oct. 21 -- after a day of deliberating the guilt of Charles Cabiness in an alleged shooting death -- with copies of definitions for "reasonable doubt" and "beyond a reasonable doubt" that she had printed off an Internet site.
The tipstaff saw her distribute copies to two fellow jurors as the jury arrived that morning and confiscated the documents. Shortly thereafter, Common Pleas Judge Edward J. Borkowski relieved of her of her duties.
The juror's intentions might have been benevolent, but she violated an explicit jury instruction -- in place since April in Pennsylvania courts' civil division and since 2010 in the criminal division -- that prohibits jurors from using the Internet to research or communicate about a case. Jurors must decide the case based on evidence and testimony the judge has deemed admissible, all of which is subject to cross-examination.
Entering the courtroom effectively forces modern jurors into a time warp and the law mandates that they remain in such a suspended state for the duration of their service, even when they leave the courthouse. Sitting jurors must not speak with anyone, including lawyers, judges, witnesses, fellow jurors or other parties on a case, nor may they read, listen to or watch broadcasts of news related to the case.
The ubiquity of the Web has added an additional temptation to the list of prohibitions.
The new rules governing civil juror conduct during trial instruct judges to say: "I am well aware that in daily life, you may regularly communicate with friends and family through text messaging, e-mail, Twitter, social networking websites, chat rooms, Facebook, MySpace, LinkedIn, YouTube, blogs, or other websites. Remember -- you must not communicate about this case in any way, even electronically."
Judge Jeanine Turgeon of Dauphin County Common Pleas Court, who is vice-chair of the Pennsylvania Supreme Court's committee to revamp the civil jury instructions, said she usually tells jurors: "My duty as judge is to make sure you are given information that is admissible under the rules of evidence that have been established over hundreds of years. If you get information over the Internet, it is not fair to the parties here because they don't have the opportunity to refute it. If you go to Wikipedia -- anyone can put information on there -- it's not reliable. In a court of law, you are deciding someone's fate.
"It wouldn't be fair to do that. And I know you want to be fair."
Courthouse veterans said case-related Internet use by jurors is not common, but jurors do cross the line on occasion and court staffers do not always get wind of the violations in time.
A few doors down from Judge Borkowski, in Judge Jill E. Rangos' courtroom, two jurors violated the jury instruction about the online activity on a heroin case. The defendant, a young man in his 20s with no prior convictions, was accused of possession of 150 stamp bags of heroin with the intent to sell them. The jury acquitted him.
And, upon exiting the building, one of the panelists mentioned to the tipstaff that two fellow jurors had pulled out iPhones in the jury room and researched the sentencing guidelines for heroin possession on Google. Jurors are not supposed to consider sentencing, or know any details about possible sentences, in arriving at a verdict.
"They came away thinking he'd get 15 years in jail," which was "not close to the truth" for someone with a zero prior record score, Judge Rangos recalled. "Because of that they found him not guilty," she said.
Once the defendant was acquitted, of course, it was too late to do anything. There is no double jeopardy, she said: "You can't un-ring that bell."
Judge Borkowski, in the homicide case, had the benefit of knowing beforehand about possible jury tainting, but the juror's use of the Internet led to another quandary: By the time the juror breached her oath in the retrial, the jury had begun deliberating, the one alternate juror had already been placed into active duty on the jury, and the defendant was guaranteed the right to be judged a jury of 12 peers. It was still within the judge's discretion to excuse the juror who had violated her duties.
When Mr. Cabiness' lawyer made a motion to dismiss the juror, Judge Borkowski excused her and allowed deliberations to proceed with the 11 people who eventually convicted him of killing 38-year-old Monnica Gay, a witness who had testified against Mr. Cabiness' brother in another homicide trial.
Judge Borkowski, a former prosecutor known for being meticulous, said he asked the court reporter to go back through the transcript and read his instructions to the juror.
He had said "no less than eight times explicitly that jurors were to not to engage in any independent research of any sort, engage in any Internet activity or any modern means of communication whatsoever related to this case, that they are obliged to decide the case based on what comes to them in the four corners of the courtroom."
What the juror had printed off the Internet, he said, was not legally wrong, but it wasn't as precise as the definition the court had provided and it contained extra information on the law that went beyond the scope of the court's definition.
"It's just a matter of education," Judge Borkowski later said. "It takes so much work to get the cases in a place they can be tried."
For decades, judges have been working to make jury instructions in "plain English" for laypersons who don't necessarily grasp or care to know all the legal reasoning behind each provision of the law.
Some judges craft their own admonitions to make the rationale behind the rules a bit clearer. Judge David R. Cashman of Allegheny County Common Pleas Court routinely cites examples of jurors who have violated his instructions not to conduct research or tests of their own, though in each example they do so in a seemingly good faith quest for truth.
In one instance, he recalls a juror who had her husband stand under a streetlight in the middle of the night to see how well she can identify him at a certain distance. He describes a male juror who drove around to various locations related to the crime in his own car to test how long it would have taken the defendant to cover the same ground.
According to his court staff, he has recently added a warning about texting and tweeting anything regarding the case.
Jurors may not use cell phones in the jury room. And they tend to heed this instruction, said Judge Jeffrey A. Manning, administrator of the criminal division of Allegheny County Common Pleas Court.
"Jurors are very respectful about following the court's policies. We don't expect to find any infractions," he said.
Of course, judges must rely on jurors to be forthright about their own behavior or report on fellow jurors who have violated the rules, which requires a good deal of moral courage, Judge Rangos admitted. "Unless you're a strong-willed person or a leader, you don't want to be the one throwing a wrench in works and tattling on your fellow jurors."
First Published October 31, 2011 12:00 am