In 1992, when a pair of car thieves in suburban Maryland kidnapped a baby and dragged the child's mother to her death, Judge Dennis Sweeney's biggest free-press/fair-trial worry was ensuring that jurors didn't read the newspaper or listen to television or radio reports about the case.
But in 2009, when Baltimore Mayor Sheila Dixon was brought up on corruption charges, Judge Sweeney — summoned from retirement to hear the case — had to contend with the "Facebook Five," a group of jurors who "friended" one another during the trial. Young people may not even realize they're doing anything wrong, Judge Sweeney observes in the latest edition of the Reynolds Courts & Media Law Journal.
To combat the growing chasm between these digital natives, who have never known a world without the Internet, and judges who are most likely "digital immigrants" (or even "digital aliens"), Judge Sweeney suggests the courts try a little tenderness.
Rather than scolding or sanctioning the young for such behavior as looking up a complex definition in a medical malpractice trial, it is more advisable to get ahead of the issue and persuade youthful jurors to buy into the program. Judge Sweeney frowns on confiscating cellphones at the courthouse door; you just make them mad, and they take it out on whomever they think is prolonging the trial.
University of Dayton School of Law associate professor Thaddeus Hoffmeister, who writes a blog on juries, calls Judge Sweeney's article a "must read" for judges.
America's young jurors simply play by different rules. This phenomenon of social media-savvy "digital natives" colliding with long-held assumptions about how cases are tried and decided is rocking courtrooms from our biggest cities to our tiniest hamlets. Judges can't just wag a finger and say "Don't read the newspaper or watch television." It won't work, especially when the violators don't think they've done anything wrong (like the one cited in Judge Sweeney's article who, after getting caught looking up something on the Internet, protested: "To me, that wasn't research. It was a definition").
So Judge Sweeney gets detailed. He has a ready-to-use model warning for judges to read to web-savvy jurors. It mentions everything from Facebook to MySpace to YouTube to Google maps. Judge Sweeney also has a plug-and-play short form version that judges can read to jurors before lunch or bathroom breaks. We at the Reynolds National Center for Courts and Media encourage judges to adopt Judge Sweeney's or similar models, and we invite litigators in their moving papers to suggest such admonitions.
This problem is not just theoretical. Consider:
•Earlier this month, London's High Court sentenced Joanne Fraill to eight months in prison for Facebook contact with a previously cleared defendant in a multi-defendant drug case. The judge declared a mistrial.
•About a year ago, an unnamed juror in the Bentonville, Ark., capital murder case of Erickson Dimas-Martinez was caught Tweeting: "Choices to be made. Hearts to be broken. We each defined the great line," according to the news website NWAonline.com. The judge left the juror on the case.
•In the ongoing Casey Anthony murder trial, a potential juror was dismissed during the selection, or voir dire phase, after reportedly posting the jury instructions on his Facebook page. This juror also allegedly joked online: "book coming soon. lol."
In fact, Reuters Legal used data from legal research service Westlaw to conclude that between 1999 and the end of 2010, at least 90 verdicts were the subject of challenges based on alleged Internet-related juror misconduct. More than half the cases occurred in the final two years of the approximately 10-year period, Reuters said. Judges granted new trials or overturned verdicts in 28 criminal and civil cases — 21 since January 2009, according to Reuters.
So what would have happened if the Dixon case had not settled prior to the resolution of her appeal based on the "friending" of the Facebook Five? What might the U.S. Supreme Court have said? We'll never know. But if judges continue to live in denial about the reality of social media's impact on the courts, we eventually will.
Ben Holden, director of the Reynolds Center for Courts & Media, is a graduate of Boalt Hall School of Law and the University Of Missouri School of Journalism. His email is firstname.lastname@example.org.