Friday, January 15, 2010

The Facebook Five and Alleged Juror Misconduct in Baltimore Mayor's Trial

The recently concluded trial of Baltimore's soon to be former Mayor Dixon ended when Mayor Dixon was found guilty of embezzlement for stealing gift cards from the poor. Numerous times throughout the trial and prior to jury deliberations, Hon. Dennis M. Sweeney, who presided over Ms. Dixon's trial, admonished the jury not to discuss the case with anyone. This jury instruction is standard throughout the country. After Ms. Dixon was found guilty of embezzlement, but before she was sentenced, it came to the attention of her legal team that 5 of the 12 members of the jury (the "Facebook Five") became "Facebook Friends" and started communicating with each other on Facebook.

Mayor Dixon filed a motion to set aside the verdict and one of her arguments was that the Facebook Five's Facebook activities constituted jury misconduct under Maryland law. This argument became moot when the Mayor agreed to withdraw it after a plea agreement was entered that resolved all of the Mayor's outstanding legal issues.

The State of Maryland like most states does not have an official social media policy relating to court room behavior for judges, attorneys, witnesses, or members of the jury. According to my research, there are no reported cases in the country that have had to determine whether Facebook Friending and/or Facebook posting about a case during a trial by a juror is juror misconduct. Maryland has ruled that juror Internet research during deliberations is juror misconduct. In Wardlaw v. State of Maryland, 971 A.2d 331 (2009),the court reversed an assault conviction after a deliberating juror used the Internet to perform research about the case and notified other deliberating jurors about the research.

If the Facebook Five discussed substantive issues about the case outside of the courtroom in any medium, including Facebook, there is no doubt there was juror misconduct and the conviction would most likely have been overturned. However, if the Facebook Five were just Facebook friending each other and not discussing substantive issues of the case, this issue is just a red herring that was deftly used by the Mayor's legal team to secure her Alford plea and enable her to keep her $83,000 annual pension and enable her to eventually run for public office again in the future.

Courts throughout the country should expand upon the jury instruction that prohibits jurors from talking about the case or performing one's own independent research to specifically include prohibiting jurors from discussing anything pertaining to the case on social media. By acknowledging on a Facebook wall that you are on a jury for anyone, let alone someone as high profile as the mayor of a major metropolis, invites all of your friends to comment and possibly influence your opinion as to the guilt or innocence of a defendant, something clearly prohibited by current jury instructions.

Mayor Dixon's high profile case demonstrates the need for state bar associations throughout the country to work in conjunction with their respective state legislatures and judiciaries to create social media policies that address the reality of today's technology and citizens' social media habits. Therefore, I urge state bar association presidents throughout the country to create social media law committees to work with their legislators and members of the judiciary to craft uniform court room social media policies. Continuing to ignore the realities of the Internet/Social Media Age is a recipe for injustice. To learn more about these issues you may contact me at www.shearlaw.com

Copyright 2010 by the Law Office of Bradley S. Shear, LLC. All rights reserved.