GOOGLING A MISTRIAL: ONLINE JUROR MISCONDUCT IN ALABAMA.

• Author: Browning, John G.

1. INTRODUCTION

   In September 2018, the murder trial of Fessor Pearson in Jefferson County, Alabama came to a crashing halt as the judge declared a mistrial. (1) After days of testimony about how Pearson had allegedly shot James Morgan at the Southtown housing complex in Birmingham in December 2015, the court learned that a juror had done the unthinkable--Googling Pearson's criminal record and then sharing it with fellow jurors. (2) Having previously instructed all jurors to refrain from researching the case online or from discussing it with others, the judge had no choice but to abort the case in light of the juror's misconduct, which had wasted valuable time and judicial resources. The case would have to be re-set for trial later that year. (3)

   Mistrials and overturned verdicts due to a juror's online misconduct have been, unfortunately, a recurring issue on our legal landscape since the advent of the smartphone, search engines, and social media platforms. As far back as 2010, a Reuters Legal study documented dozens of mistrials, appeals, and overturned verdicts in just a two year period. (4) Yet despite widespread efforts to combat this epidemic--including revision by many jurisdictions of their juror instructions to account for things like the temptation of internet research--it remains a problem nationwide. And as the Pearson case illustrates, Alabama is no exception.

   Just how pervasive is the problem of online juror misconduct? The reported cases do not even begin to tell the tale since--like the Pearson case--most instances are addressed at the trial court level (assuming that the misconduct is even discovered). Given the ubiquitous nature of smartphone use, the potential for jurors to access extraneous information about a case or the individuals involved in it is vast, indeed. According to one recent study, the 294 million smartphone users in the United States check their phones an average of sixty-three times per day and spend an average of approximately five and a half hours each day connected to the internet. (5)

   In order to better illuminate the topic of online juror misconduct in Alabama courts, this article will begin with a look at online juror misconduct as a national and even international problem in the Digital Age. As this article will demonstrate, jurors' online activities are hardly static, but instead cover a spectrum of conduct that ranges from the relatively benign--say, a tweet like "picked for jury duty today"--to the more troublesome, like engaging in online research about issues or terminology in the case or communicating with others on social media about the trial. The article will then examine Alabama's standard for juror misconduct generally, before looking at how Alabama courts have dealt with online juror misconduct in particular. Finally, the article will consider what can be done to mitigate the problem of online juror misconduct.

2. ONLINE JUROR MISCONDUCT: A PERVASIVE PROBLEM TAKING MANY FORMS

   Few principles are as sacred, as inviolate to the American legal system, as the right to a jury trial--and not just such a trial, but one adjudicated by citizens unprejudiced by external influences and preconceptions. Yet while assuring parties of this has always posed certain challenges due to the potential for juror misconduct in various forms, no challenge has been as formidable as the pervasive lure of modern technology. Jurors now come to the courthouse from living and working in a world in which more than eighty percent of adult Americans have at least one social networking profile and in which Twitter processes more than 6,000 tweets every second, and they bring that world with them thanks to smartphones, which place the vast information on the internet literally at one's fingertips. Unfortunately, while courts have dealt with forms of juror misconduct like engaging in outside research or extrajudicial communications with third parties for many decades, the vast majority of caselaw providing guidance to courts was handed down long before the advent of the internet, social media, smartphones, and tablet computers. Because of this, today's courts must reboot and find a way to apply the legal principles underlying a fair and impartial jury to modern technology. As we shall see, courts have adapted to this new normal of trial in the Digital Age by updating jury instructions, but to adequately address the problem of online juror misconduct, more work remains to be done.

   Even though much of the available information concerning online juror misconduct is anecdotal, the estimated frequency of jurors' online misconduct is concerning. A Reuters analysis of Westlaw data between 1999 and 2010 revealed that at least ninety verdicts in United States courts were challenged based on claims of internet-related juror misconduct, and roughly half of these occurred during the last two years of the study, supporting an upward arc in frequency. (6) At first blush, given the sheer numbers (approximately 450,000 jury trials were conducted in the United States between 2008 and 2010), one is tempted to conclude that online juror misconduct is rare. (7) However, this study only looked at reported appellate opinions, and does not account for the many instances of juror online misbehavior that were dealt with at the trial level and never appealed. Finally, and most ominously, even our anecdotal knowledge is limited to online juror misconduct that was discovered--perhaps a transgressing juror confessed, or a fellow juror came forward, or perhaps a bailiff discovered a Wikipedia printout in the jury room. (8) There may be a sizable iceberg under the surface comprised of undiscovered instances of online juror misconduct.

   Another obstacle to understanding the threat posed by online juror misconduct is that all too often, scholars referring to it have regarded it as a monolithic topic. As this article later discusses, juror online misconduct covers an array of activities or behaviors that occur on a spectrum. Certain activities, like a juror who goes on Facebook to post that he is "bored at jury duty," are relatively benign. Others, like engaging in internet research about medical terminology in the case and then sharing it with other jurors, are far from benign. In each scenario, a juror has violated the court's instructions, but with far different consequences. As this article will explore, there are five different types of online behavior along this spectrum that pose a threat to the jury trial.

   The first threat is jurors' online exposure. While this may seem fairly innocuous on its face (as long as the prospective juror is forthcoming about it during voir dire), danger looms when a juror lies about their online pre-trial exposure and activities. Consider, for example, the 2011 Oklahoma case in which a prospective juror was questioned during voir dire in the murder trial of Jerome Ersland. (9) Ersland, a pharmacist, allegedly shot a would-be robber five times while the thief lay wounded and motionless on the floor. The panelist was asked if she had previously expressed any opinion on the case, and she replied "no."

   But the defense subsequently discovered a Facebook post the prospective juror had made six months before the trial, which read: "First hell yeah he need to do sometime!!! The young fella was already died from the gun shot wound to the head, then he came back with a different gun and shot him 5 more times. Come let's be 4real it didn't make no sense!" (10) The panelist (who claimed to have forgotten making the comments in question) was promptly dismissed from the juror pool, found in contempt, and sentenced to one hundred hours of community service. (11)

   Another stop on the spectrum of juror online behavior deals with their social media connections or relationships. As will be discussed later herein, while Facebook "friendship" often denotes little more than a casual acquaintanceship in today's digital reality, the failure to disclose such connections can threaten the integrity of the jury trial. Beyond this, a more troubling form of jurors' online behavior consists of posting about one's jury service. While in its most innocent form, this might consist of a simple comment about being on jury duty, it can also take the more serious form of posts or tweets about the trial itself--including the evidence, the parties and witnesses, and even jury deliberations.

   Continuing along the spectrum, we encounter jurors' online research. This urge to self-educate or play cyber sleuth may very well constitute the most common type of juror online misconduct. Googling jurors are problematic on multiple levels. Not only is such activity in direct violation of court instructions and a potential avenue toward tainting the entire jury, it runs the risk of encountering information that is outdated, incomplete, or just plain wrong. Rhode Island adopted new juror instructions in May 2009, in part as a reaction to the overturned manslaughter conviction of Destie B. Ventre. A juror, hoping to move deliberations along, had consulted the internet for legal definitions of "manslaughter," "murder," and "self-defense." (12) Compounding the juror's violation of the judge's admonitions against engaging in research was the fact that the juror wound up with California's, not Rhode Island's, definitions of those legal terms.

   This last category typifies how such juror online misconduct can jeopardize the very foundations of the justice system. In March 2009, a judge in a Florida trial was forced to declare a mistrial in a lengthy, expensive federal drug case after discovering that a juror had engaged in independent internet research. (13) When the judge conducted an investigation and questioned the other eleven jurors, eight of them admitted to also conducting illicit research. (14) It is also an international problem. In March 2019, a mistrial was declared in a Canberra, Australia, sexual assault case on the fourth day...