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Good luck keeping your jurors off the Internet about your case

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Bill of Rights. (From the public domain.)

In her wonderfully compassionate way, the amazing SunWolf emphasizes that jurors generally are going to bring their usual behaviors from their daily lives into the deliberation room regardless of the judges’ warnings to tell them to change behaviors that jurors are already habituated to — or see as personally sacrosanct as deciding whether to put the right shoe on before the left one.

As SunWolf more specifically cautions, watch out for online jurors. If you are reading this blogposting, just hold up a mirror to yourselves; How long can you resist googling or twittering about matters you hear about during trial when you are in the gallery, let alone when you are in the jury box?

As Maryland’s intermediate appellate court recounts, Zarzine Wardlaw went before a Baltimore City jury on charges of "rape in the second degree, sexual offense in the third degree, sexual offense in the fourth degree, three counts of assault in the second degree, two counts of sexual child abuse, and two counts of incest of his 17-year old daughter." Wardlaw v. Maryland, ___ Md. App. ___ (May 8, 2009). As I have said before, a true resolve and devotion to criminal defense is needed to represent those charged with heinous acts, at least when the criminal defense lawyer does not think the client is innocent.

Trial Judge Robert B. Kershaw instructed the jury at the beginning of trial not to investigate the case. That apparently has become like telling some jurors not to blink their eyes at all. One of the jurors did an Internet search on a psychological disorder ascribed to the complainant. Praised be the juror who revealed this by note to the judge.

The judge denied the defendant’s mistrial motion that was based initially on the Internet searching, and later on revelations of incompetency by one or more jurors whose notes showed an inability to understand some vital jury instructions. Not only that, after the foreperson claimed that a verdict had been reached, a check of the jurors showed that to have been incorrect.

As the jury room problems mushroomed, the prosecutor joined in the defendant’s mistrial motion. The judge still refused a mistrial.

Maryland’s Court of Special Appeals reversed over the juror’s Internet search scandal, saying:

"Because the trial court did not voir dire the jury in the instant case, the presumption of prejudice was not rebutted and the trial court denied the motion without exercising its discretion. Williams v. State, 394 Md. 98, 113 (2006) (In ruling on a motion for a new trial, based upon a revelation that a juror failed to disclose a potential bias, ‘the trial court’s sound discretion can only be exercised on the basis of the information that a voir dire reveals and the findings that the trial court makes as a result.’) (emphasis in the original); Maddox v. Stone, 174 Md. App. 489, 501 (2007) (We will ‘reverse a decision that is committed to the sound discretion of the trial court if we are unable to discern from the record that there was an analysis of the relevant facts and circumstances that resulted in the exercise of discretion.’) (emphasis in the original). Moreover, we are not persuaded that the error was harmless beyond a reasonable doubt. Accordingly, we hold that the trial court abused its discretion in denying appellant’s motion for mistrial and, therefore, we reverse the judgments of the circuit court."

Of course, often when a judge questions/voir dires jurors to determine whether a party has been prejudiced by jury misconduct, the taint mushrooms all the more. 

Why did the government’s lawyers switch from joining in the mistrial motion at trial, but then opposing such a remedy on appeal? Because of dissent with the trial prosecutor’s decision to seek a mistrial? Because the trial prosecutor only sought a mistrial to avert a lost appeal and longer delay in retrying the case, and now the case is on appeal anyway? Because the government’s lawyers did not want to miss the opportunity to challenge the defendant’s remaining appellate issues? Because the government’s lawyers wanted to minimize the risk of resulting caselaw adverse to prosecutors? Because the government’s deciding to elevate conviction-seeking over justice-seeking, when prosecutors are obligated to do the opposite?  Jon Katz