Reputed Boston mob boss James “Whitey” Bulger is an 83-year-old man federal prosecutors say was responsible for 19 murders before he went on the lam in 1994.
Jodi Arias is a 32-year-old ex-waitress from Arizona who’s facing the death penalty in the grisly killing of her lover, stabbed 27 times, his throat slashed and shot in the face.
As criminal types, they have about as much in common as rocks and birds. But here’s something that may help them both: In the age of social media, it’s easier than ever for the jurors sitting in their cases to screw up.
The impartial jury, untainted by influences from outside the courtroom and unwilling to share opinions about the proceedings except in the context of jury deliberations, is supposed to be a linchpin of American jurisprudence. The trouble is, amid the proliferation of social networking sites like Facebook and Twitter – coupled with the increasing portability of computers – it’s nearly impossible to keep jurors chaste.
“It’s very difficult,” says Philip K. Anthony, the CEO of DecisionQuest, a nationwide trial consulting firm. “What we’ve seen consistently is once a person gets selected as a juror they almost can’t help but use social media. The first thing they do is they’ll use search engines and they’ll either do research on the case itself or they’ll look at web sites of the parties involved or some other aspect of a case.
“The other thing they do is seek out opinions from peer groups.”
It’s now routine for judges to warn jurors against the misuse of social media. But the amazing thing, says Anthony, is that no matter how often judges warn juries that they’re supposed to decide the cases based solely on the evidence that emerges in the courtroom, many jurors don’t take the admonition seriously.
“In the current environment, most jurors do not see that as a violation of their responsibilities as jurors,” he says. “Most see it as helping them do a better job.”
Robert Mann, a prominent defense lawyer from Rhode Island, says a trial doesn’t have to be about a racially charged killing in Florida or an FBI-protected mob boss in Boston for social media to be a serious concern. It doesn’t even have to be a criminal trial.
“Forget about the high-profile cases for a second,” says Mann. “What a lot of juries now have the capability of doing is to find out a great many details of a case just by going on the internet.”
Back in the day when newspapers were the nation’s main spigot of information on current events, the chief concern of prosecutors and defense lawyers was that jurors would be unfairly influenced by pre-trial publicity, according to Mann.
Pre-trial publicity is as much a worry as it ever was, he says, but social media and the power of the internet have also made it more difficult to insulate juries from unwanted influences after the trial begins.
“The danger is after picking the jury,” he says.
Computers, smart phones and other portable devices are making it more convenient than ever for jurors to do things they’re not supposed to do while a trial is going on. Jurors are often escorted to crime scenes in the context of a trial, but now they can take a virtual tour simply by clicking Google Maps. If a witness testifies about DNA evidence, a juror can effortlessly consult the web for a broader understanding of human genetics. Then he can tell all his Facebook friends everything he learned.
Many aficionados of social media hardly need a compelling reason to post a status update, observes Andrew Horwitz, associate dean of academic affairs at Roger Williams University Law School. “I just bought a trash can at Walmart,” might be enough, he snickers.
For the serial status-updater, the momentous occasion of a criminal trial is an irresistible opportunity to indulge.
“It seems like quite an obvious proposition,” says Horwitz. “We’re all so connected to our electronic equipment at this point. Most people can’t go three minutes without their cell phones. It’s hard to imagine jurors aren’t routinely accessing their phones to communicate with other people or access the web to do research about the trial or some concept that’s come up at the trial.”
Horwitz says the natural human tendencies to share, explore and opine have always been issues for juries, but “the problem with digital media is that it makes it so much easier to do.”
Horwitz thinks jurors are about as likely to abide by a judge’s instructions to refrain from using social media to discuss a case as they are to avoid reading a newspaper or discussing the evidence with a spouse – which is to say, not very. But Horwitz believes the potential risk is much higher when a juror is exposed to the opinionated fare that’s standard on social networking sites like Facebook.
“How many people go can really go home at the end of the day and not talk to their spouse? I’ve always assumed that’s a very small percentage of people in real life. But I am troubled if suddenly there is a discussion on social media – it’s worse. It’s more likely the case is going to get polluted by some really inappropriate material because somebody thinks they know something and they start injecting opinions into what ultimately becomes the deliberation process. It’s more likely that’s going to happen if they’re chatting on social media than if someone is chatting with their spouse.”
Legal watchdogs have been taking note of the effects of social media on juries for several years.
A 2009 study at Duke University concluded that the rising influence of social media posed serious threats to the integrity of the jury system. The study said judges could help by giving specific instructions to jurors on permissible uses of the web before they begin hearing testimony.
“The explosive growth of social networking has placed enormous pressure on one of the most fundamental of American institutions—the impartial jury,” the study said. “Through social networking services like Facebook and Twitter, jurors have committed significant and often high-profile acts of misconduct.”
Not long before the study was published, the authors observed, the Arkansas Supreme Court reversed a death sentence because a juror Tweeted during deliberations about the verdict.
The same year a juror sitting in a high-profile federal drug case in Florida admitted to the judge that he’d been doing research on the internet in violation of the judge’s instructions. The judge, William J. Zloch, wondered what other jurors were up to. He was surprised to learn that eight other members of the panel had been doing their own independent research on the web, and he was forced to declare a mistrial.
In March 2009, the New York Times reported that the use of portable devices like BlackBerrys and iPhones for collecting and distributing data on court cases was “wreaking havoc on trials around the country, upending deliberations and infuriating judges.”
“Of course it should be a concern,” says retired Superior Court Judge Stephen J. Fortunato. “The idea is jurors are not supposed to be getting any information expect what’s displayed in the witness stand and what comes from the court. They’re not supposed to be dealing with conjecture or what comes from the internet or anywhere else.”
Fortunato, who retired from the bench four years ago, says that even then jurors were routinely instructed to hand over their cell phones to the sheriffs while court was in session..
He says he would caution them against talking to each other about the case outside the courtroom and to their relatives after they went home. He also told them not to visit crime scenes or “conduct experiments” to determine if one theory of the case or another was the most persuasive.
“From time immemorial the rule is do no not talk about the case with family, friends, neighbors...you and you alone make the decision,” says Fortunato.
Fortunato believes most jurors take the advice seriously and do their best to follow it, but compliance is certainly less than universal.
How much less, he says, “is anybody’s guess.”
Follow Russ Olivo on Twitter @russolivo