Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

MASSACHUSETTS JURIES ARE WARNED ABOUT POSTING STATEMENTS ON SOCIAL MEDIA

The Massachusetts jury is the subject about which we left off last week. As this week began, the subject matter has become fodder for not only the Boston Criminal Lawyer Blog, but also for the main media and Boston’s Appeals Court.

The immediate issue is, in some respects, a new one. Yet, the theory behind it is anything but new. However, the admonition I had given you in previous blogs comes to mind. Remember that all participants of the criminal justice system are merely human. That includes juries. When you add to the mix that people are, by nature, curious, and that most jurors try to “do justice”, the issue is inevitable.

Jurors in both civil and criminal trials are routinely told not discuss matters in which they are sitting and to avoid any publicity about said case. This is because the jurors, while still holding onto their common sense and life experience, are supposed to return a verdict based only on the evidence when was admitted in the case together with the law as the judge gives it to them.

Or, rather, their perception of those things, to be more realistic.

Anyway, in recent years, Massachusetts judges have added the existence of the internet stories and research to the laundry list of things jurors should avoid. Now, the Appeals Court has told judges that they need to do more to stop jurors from, not only researching, but also posting information about cases on Facebook, Twitter and other social media sites.

The new instructions came in a recent ruling in a larceny case in which two jurors posted comments on Facebook, which then elicited sometimes derogatory responses from the jurors’ Facebook friends.

Examples?

Well, one juror, during jury selection, posted that he had been selected for the jury. Said post included the opinion, “Bleh! Stupid jury duty!” One of the enlightened responses to the comment?

“Throw the book at `em.”

Another juror, also during jury selection, posted, “Waiting to be selected for jury duty. I don’t feel impartial.”

One of the clever comments to that?

“Tell them `BOY HOWDIE, I KNOW THEM GUILTY ONES!”

Wonderful.

Well, while these jurors’ adventures in cyber-space were a basis upon which the defendant based the appeal, the Appeals Court upheld the larceny verdicts, agreeing with a lower court judge that the online postings were general complaints about jury service and “silly nonspecific responses to those complaints” and did not amount to any outside influence on the jury.

The court said the judge — on the first day of the trial — had instructed jurors not to discuss the case with anyone and not to read anything about the case. The judge had also warned the jurors that if they went online to “Google” the case, it could result in a mistrial.

While the court did uphold the verdict, it did note that more had to be done to stop jurors from alluding to their jury service on social media websites.

“Instructions not to talk or chat about the case should expressly go beyond prohibitions on research. Jurors should not research, describe, or discuss the case on- or off-line,” the court wrote. “Jurors must separate and insulate their jury service from their digital lives.”

The defendant in the case, Clare Werner, was convicted of larceny for stealing more than $350,000 from Bridgewater State College, where she worked as a bookkeeper. She is considering appealing the ruling to the Massachusetts Supreme Judicial Court.

Attorney Sam’s Take On Jurors And Cyber-Space

It should come as no surprise that this is hardly simply a Massachusetts issue.

This is the Age of the Internet, after all. And, thanks to the blessing of social media, everybody can have their 15 minutes of fame. Some people tweet their daily activities, right down to pronouncements of their caloric intake. Others try to write four blogs per week and call it “daily”.

“Is what happens with jurors supposed to be secret during the trial?”

Yes and no. Certainly, jurors are not suppose to send out tweets while in deliberation about who is saying what. Further, jurors who serve in the Grand Jury, where they contemplate criminal indictments, are not allowed to divulge what goes on in that room. It is supposed to be kept secret.

On the other hand, given our fascination with “reality TV” and the criminal justice system in general, in-court observations are often commented upon by the media. It is all part of the guessing game of what is playing out in the jurors’ minds.

So, given that many people like to post their daily lives, no matter how mundane and the public’s interest in criminal trials, why wouldn’t jurors who finally think they are doing something interesting want to grab whatever attention possible in such postings?

Further, the O.J. Simpson trial was not really all that long ago. Wasn’t it that case which brought us books written by almost everyone involved…including some jurors?

Perhaps some jurors see their postings as books in the making.

Maybe.

But there still seems to be a problem with it.

“Sam, you are always pontificating that everyone in the system is only human. That being the case, what do we care whether the jurors post their thoughts? After all, free speech and all that.”

Well, as we have discussed in the past, there are limits to free speech. And, in certain circumstances, there are limits on freedoms which other’s take for granted.

We recently spoke about members of the military and national security and extra limits put on them which do not bind the rest of it.

What about jurors? Why should we care?

Stay tuned for my next blog.

For the original story upon which this blog was based, please go to http://www.boston.com/news/local/massachusetts/articles/2012/05/14/mass_court_warns_jurors_about_online_comments/

Contact Information