JURORS AND THE INTERNET, AGAIN
On August 7th, a juror in a federal conspiracy trial will be put on trial herself. Her crime? Juror misconduct for looking up information about the “Pinkerton Doctrine” (also called “Pinkerton liability”) online during the federal trial of Jamaican musician Buju Banton.
Terri Wright, the juror in question, is facing criminal contempt charges for her online research during the trial, which only came to light a year after the trial was over when she told a reporter at a Miami newspaper about it. Once the story was published the court held an evidentiary hearing in which Wright maintained that she did the research only after the trial was over. From the transcript of the December 20th, 2013 hearing:
THE COURT: It’s come to the court’s attention that you spoke to a reporter and told the reporter that, in spite of my instruction not to do any research during this trial, that when you went home, you did some research. Is that right?
THE WITNESS: I did the research after the trial.
THE COURT: All right. Tell me how you did that.
THE WITNESS: I’m sorry. I don’t understand your question.
THE COURT: Well, how would you know what to research after the trial?
THE WITNESS: After the verdict was given, the trial was over, is what I researched.
However in the recording of her interview with the Miami newspaper reporter, she said that she did the research during the trial in order to have a better understanding of the legal issues. At the August 7th trial, the judge will ultimately decide her fate. If she did the research during the trial and it influenced her deliberations (or worse yet, she used the information to influence the other jurors), then she’ll most likely be convicted.
The problem with internet research:
This is not the first time I’ve written about the perils of jurors and the internet. It is becoming an insidious and seemingly intractable problem across the country. When it comes to something like the Pinkerton Doctrine, it’s hard to fault a juror for wanting to look online for a better explanation than given by the judge. Here’s the actual Pinkerton jury instruction, which is likely to be the only explanation of the law the jurors get:
There is another method by which you may evaluate whether to find [defendant] guilty of the substantive charge in the indictment.
If, in light of my instructions, you find beyond a reasonable doubt that [defendant] was guilty on the conspiracy count (Count ___), then you may also, but you are not required to, find [him/her] guilty of the substantive crime charged in Count ___, provided you find beyond a reasonable doubt each of the following elements:
First, that someone committed the substantive crime charged in Count ___;
Second, that the person you find actually committed the substantive crime was a member of the conspiracy of which you found [defendant] was a member;
Third, that this co-conspirator committed the substantive crime in furtherance of the conspiracy;
Fourth, that [defendant] was a member of this conspiracy at the time the substantive crime was committed and had not withdrawn from it; and
Fifth, that [defendant] could reasonably have foreseen that one or more of [his/her] co-conspirators might commit the substantive crime.
If you find all five of these elements to exist beyond a reasonable doubt, then you may find [defendant] guilty of the substantive crime charged, even though [he/she] did not personally participate in the acts constituting the crime or did not have actual knowledge of them.
If, however, you are not satisfied as to the existence of any one of these five elements, then you may not find [defendant] guilty of the particular substantive crime unless the government proves beyond a reasonable doubt that [defendant] personally committed that substantive crime, or aided and abetted its commission.
Hey, wake up. Legal doctrines like the Pinkerton rule also seem inherently unfair to many people, because it effectively means a person can be convicted of a crime they had no idea about. Call this the “wait, what?” principle. Many legal doctrines don’t make intuitive sense – the Pinkerton rule, the felony murder rule, rules about evidence, etc. Jurors are generally smart enough to figure out when a piece of the puzzle is missing or when a legal doctrine seems wrong. When that happens, they try to figure out what they’re missing, and go online.
But another angle to this story is curious – and that’s the ability of Terri Wright to get on to jury after jury, even after being accused of juror misconduct in federal court.
Terri Wright has served on seven juries. Seven. She even became so passionate about jury service that she’d rather serve on juries than go to work. Again, from the transcript of the December 20th, 2013 hearing:
Q You said, if you could, you’d [serve on juries] for a profession, you’d do this all the time?
That’s a big red flag for any lawyer. Personally I don’t know anyone, of any age, who’s been selected for more than one jury. It could be that Wright got on seven juries innocently enough, or she could see herself as a professional juror. Following the Buju Banton trial she was selected for jury service again, this time in a civil negligence trial. One of the attorneys in that civil trial couldn’t seem to shake her off the jury, no matter how hard he tried. From the article:
“I couldn’t get rid of her for anything,” [the attorney] said of Wright. “She just said all the right things — ‘I can be fair. What I do doesn’t have anything to do with claims. I’m your person.’ The judge wouldn’t excuse her.”
Typically lawyers for both sides run the names of jurors (if they get the chance) to see if the information they give matches up, because if they lie about something the lawyer can then strike them from the jury. However Terri Wright’s criminal contempt case is running under the old case number for the Buju Banton trial, not as a new or separate case, so it’s somewhat hard to find. But still, it seems like Wright really really wants to be on juries.
No Easy Solution:
Maybe it’s time to rethink the way we instruct juries, and even to consider not trying to hermetically seal juries off from all outside information. It would be a curious experiment to see if mock juries reached the same conclusions as real ones, if given internet access and free reign.