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Lawyers turn to social media to analyze potential jurors

As the jury selection process began in the bribery trial of state Sen. Ulysses S. Currie, the names of potential jurors were removed from their questionnaires before the forms were returned to lawyers.

The redacting was done at the request of federal prosecutors — but not for the jurors' safety. It was meant to keep defense lawyers from Googling them before the trial, which is set to begin next week.

If that happened, the court's "supervisory control over the jury selection process would, as a practical matter, be obliterated," prosecutors wrote in a letter to U.S. District Court Judge Richard D. Bennett.

Many judges, mindful of the potential for mistrial, now regularly remind jurors to steer clear of social media sites along with traditional news outlets when deliberating a case. But the rules are murkier for lawyers, who are increasingly turning to Facebook, Twitter and similar websites to help them make decisions during jury selection, which can make or break a case.

Defense lawyers in the 2009 public corruption trial of Baltimore Mayor Sheila Dixon performed Internet searches on prospective jurors as they were being questioned in the courtroom. A Texas prosecutor reportedly equipped his staff with iPads so they could research jurors using courthouse wi-fi. And several companies already make jury selection "apps" to help track the information.

A New Jersey appellate court ruled last year that such behavior was permissible if both sides have access to the technology — an unpublished opinion that seems to open the door for other courts to follow suit.

As Maryland's assistant U.S. attorneys noted in their letter — and others have long known — there's a treasure trove of personal information about many individuals available online.

"On Facebook, for example, which is searchable by name, many people post photographs of family and friends, list their political views, share their likes and dislikes in all facets of life, and post comments on a myriad of topics," the federal lawyers wrote.

They should know. Prosecutors routinely use evidence mined from the Internet.

And it can be eye-opening. Baltimore gang members have posted photos of themselves with weapons and wads of cash on MySpace. An alleged Maryland terrorist urged hatred toward "Any 1 who opposes ALLAH" on Facebook. And a Rosedale McDonald's employee posted the violent beating of a transgender woman on YouTube.

The Internet "is a tremendous source of information," Maryland U.S. Attorney Rod J. Rosenstein said in an interview last week. He just doesn't believe that information about jurors should be accessed before trial.

It's rare that attorneys have the chance to see juror names pre-trial, anyway. It only happens when questionnaires are used in capital cases, he said, or in "high-profile cases," like Currie's. The 74-year-old Prince George's County Democrat is accused of accepting bribes from Shopper's Food Warehouse executives in exchange for legislative favors.

Rosenstein said his office asked for pretrial anonymity for the prospective jurors in the Currie case because of concerns over privacy and to allow the court to control the vetting process. "We don't think anybody should be investigating prospective jurors before they get to the courthouse," he said.

After they arrive, however, the Internet is often fair game. That's part of the appeal in using social media sites to learn people's backgrounds — all sorts of information is often readily accessible in seconds, says Caren Morrison, an assistant professor at the Georgia State University College of Law.

"There's a whole sort of generation of lawyers who used to pay investigators to drive by houses to see if there were kids [in the yard] or [political] bumper stickers on their cars. Now they can do it instantaneously," Morrison said.

William B. Purpura, a criminal defense attorney, says searching social media sites is like "having access to an extra jury consultant" who doesn't charge.

"Do they like dogs? Do they like guns? Do they like girls? Whatever they like, they post," Purpura said. "It's right there in front of you."

Time constraints limit what one can find in a few minutes, he said. And he's more likely to perform Internet searches on a witness than on a potential juror. But he doesn't do much of either in Maryland's federal courthouses, because the reception is terrible.

"We don't have wi-fi in our courtrooms," acknowledged Deborah K. Chasanow, chief judge for the U.S. District Court of Maryland. She hadn't yet heard any discussion of lawyers' using social media during jury selection, though she expects it may become a bigger issue as time goes on.

"It's obviously evolving," she said.

Several judges at the state level have been aware of the practice for years, said Dennis M. Sweeney, a retired Howard County judge who presided over Dixon's 2009 trial on charges she embezzled donated gift cards and improperly accepted other valuables, then lied about it.

The case made headlines because of its defendant, but also because of the ways in which social media infiltrated the courtroom. Defense lawyers researched potential jurors during the "voir dire" selection process, using information found online to show that some had been untruthful in their answers and to reveal that one woman was posting to Twitter during the questioning phase.

Meanwhile, the five youngest jurors "friended" one another on Facebook, which later led to cries for a new trial. Dixon took a plea deal in her criminal cases before the jurors could be confronted about their so-called misconduct, however.

That same year, Maryland appeals courts upended murder and assault convictions in separate cases because jurors did their own online research, a type of inquiry that has led many judges to amend their jury instructions. Jurors are now often explicitly warned not to use the Internet to investigate cases or talk about them. Some states have passed laws requiring the warnings and providing for jail time if they're unheeded.

Juror use of social media has been the chief technology concern for the past few years, but Sweeney said judges are increasingly starting to consider the ethical issues raised by lawyers' use of the tools. "It presents some real serious problems about how much the courts should or can control lawyers."

Sweeney said several issues can arise, such as what, if any, obligations lawyers have to disclose the information they find, and whether the court has a responsibility to protect the privacy of jurors. "As potential jurors, [people] are not thinking that their every involvement in private or public life is going to be subjected to a microscopic examination."

Nicole Black, a Rochester, N.Y., lawyer, and co-author of the book "Social Media for Lawyers," suggests they get used to it, however, along with the courts.

"Change is happening really quickly," she said, "So they're going to have to learn about it even if they don't want to."

A federal public defender in the Currie case, Joseph Evans, is not so sure. He and his colleagues on the defense team agreed not to look up potential jurors online before trial. "None of us had even thought of it," he said, "until prosecutors raised it."

And he's not sure he ever wants to.

"I think that our society at large is way too intrusive, and combined with intrusiveness is the narcissism. So, on the one hand, people are always peeping at you, and on the other hand, you're always putting stuff out there to be seen that is embarrassing," Evans said. "I don't like either of it."

tricia.bishop@baltsun.com

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