I've been in trial in a murder case for the past few weeks. Because we are in Connecticut, picking the jury inevitably lasts longer than presentation of evidence. It took eight days to pick jurors: under state law, we question each potential juror outside the presence of the others. We needed 12 jurors and three alternatives. Frankly, eight days was a little quicker than expected. We've now completed five days of evidence; both sides will rest either Monday or Tuesday of this week.
Each juror was warned when selected not to make inquiries about the case. Conduct no research, do not talk about the case, keep your own counsel regarding the proceedings. The warnings are repeated daily.
Imagine my surprise this week, then, when we were told that there might have been some errant communication by a juror on Facebook.
We checked out the lead, and it was true. Juror Number Ten had made a comment about the proceeding's intensity. The comment was posted at 11:50 a.m. during the very first day of evidence. One of the juror's readers cautioned the juror: "Aren't you supposed to avoid talking about the case?"
We learned of this information on Wednesday night. On Thursday, we brought it to the judge's attention. Our concern was that this comment was but the tip of the iceberg. Perhaps the juror was engaged in some sort of private dialogue about the case.
The juror was summoned into the courtroom for brief questioning, but only after the state demanded that we disclose how we had learned this: we refused to give up the source of the information, and were not ordered to do so. The state then suggested that someone had made inappropriate contact with the juror. It is hard to know what to make of that claim. If someone posts information on a social networking site, the information is hardly private, is it?
It turns out the juror had not spoken about the merits of the case; at least the juror did not acknowledge doing so. Still, it was unnerving that this near-misconduct would occur in the face of repeated admonishments.
But what of the admonisher? The day before the Facebook revelation, the trial judge himself acknowledged that he had briefly described the case to the operator of a lunch truck that parks outside the courthouse. During this conversation, a juror came for coffee. What was said? Did the juror hear something that might affect the outcome of the case? What did the judge say?
The juror was questioned. He heard nothing. His attitude toward the case was unchanged by anything that took place outside the courtroom. The lunch truck operator was questioned. All he heard was a brief description of the case, and that the judge had referred to it as a "crazy" case. I questioned the judge, who did not recall referring to the case as crazy, but merely as unusual. The judge is a good man, and he expressed deep regret at having, in effect, violated his own order.
In the case of both the juror and the judge, I was unable to unearth any evidence that suggests that arguable misconduct had any impact on the jury. Thus, even if the court's orders were violated, I cannot prove prejudice. But I did learn enough last week to make me wonder whether we kid ourselves when we recite the mantra that a properly instructed jury is presumed to the follow the law. How much confidence can we have in that maxim when even the judge violates the rule?
Perhaps it is time to revisit sequestration of jurors. Sure, it would be expensive to house and feed jurors during trial. But it also adds great expense to hospital care to assure sterile operating rooms.
It seems naive to believe that folks aren't doing independent research on the issues they are asked to decide. When even the judge has difficulty following the rules, how much confidence can we have that jurors are doing any better?