By Parker Howell
The man recently convicted in Washington State of killing “Seattle’s Dog Whisperer” Mark Stover apparently hopes that a juror’s tweets during the trial could constitute reversible error, the Seattle Weekly reports. Nineteen-year-old juror Caleb Chase reportedly tweeted some 20 times (via @chasecaleb) during the trial of Michiel Oakes, despite the judge’s typical admonishment against jurors discussing the case with non-jurors. The Weekly points out that Arkansas’ high court reversed a conviction following juror tweets, and quotes former Washington State Supreme Court Chief Justice Gerry Alexander as saying that it is unclear “how Washington courts will look at tweeting.” He is further quoted as saying it would be surprising “if a court takes the position that tweeting by a juror automatically justifies a new trial” because such “incidents don’t ordinarily result in a new trial unless the juror gained some information they should not have received or he or she expressed their views about the case.”
Indeed, both Washington precedents and decisions from other jurisdictions suggest that juror tweets, like other forms of juror communication, should not constitute reversible error unless they discuss the substance of the trial, prejudicing the defendant. There is arguably no such indication of prejudice in Chase’s tweets as quoted by the Weekly.
In Washington, “[c]ommunications by or with jurors constitute misconduct.” State v. Murphy, 44 Wn. App. 290, 296, 721 P.2d 30 (1986). Yet courts “are only justified in disturbing the verdict of guilty on account of the alleged misconduct of a juror when it is shown that such misconduct was prejudicial to the rights of the defendant, or when such a state of facts is shown that it may fairly be presumed therefrom that the defendant’s rights were prejudiced.” State v. Wilmoth, 31 Wn. App. 820, 824, 644 P.2d 1211 (1982). “Whether such prejudice exists is a matter of fact within the discretion of the trial court.” Id. The “party who asserts juror misconduct bears the burden of showing it occurred” by raising a “presumption of prejudice, which the [prosecution] can overcome by showing that the misconduct was harmless beyond a reasonable doubt (i.e., that the misconduct did not affect the verdict).” State v. Kell, 101 Wn. App. 619, 621, 5 P.3d 47 (2000).
As in the cases discussed below, there is no indication that Chase’s tweets affected the verdict, because they did not relate to the substance of the trial. For example, in Kell, jurors made cell phone calls during the trial without permission. The Court of Appeals found no prejudice because, under questioning by the trial court, “each [juror] responded that no one had discussed the case while using the cell phone, and that the cell phone had not affected the deliberations in any way.” 101 Wn. App. at 622. The court cited People v. Fauber, 831 P.2d 249 (Cal. 1992), cert. denied, 507 U.S. 1007 (U.S. 1993), in which the California Supreme Court found no prejudice after a juror was allowed to take a cellphone into the jury room during deliberations and permitted two other jurors to make calls unrelated to the trial. Kell is distinguishable, however, because it appears the judge had not inquired about cellphones or prohibited them during deliberations. See 101 Wn. App. at 622. Notably, the Kell court would have found it more problematic if “an outside caller provided information about the case (e.g., a description of case-related publicity).” Id. at 623 n.9.
In Murphy, a juror discussed a criminal case with her daughter over lunch during a trial recess. 44 Wash. App. at 295. The daughter said she thought the defendant was guilty. The trial court held a testimonial hearing, establishing that the juror voted to acquit, but later changed her vote (she was the last juror to do so). The conversation was not revealed until after the sentence had been entered, when the juror “felt remorse and contacted defense counsel.” Id. at 296. The Court of Appeals found “no reasonable possibility of prejudice given the fact the single juror expressed her doubts, during deliberations, about the defendant’s guilt, and initially voted for acquital [sic] after the misconduct occurred.”
Courts in other jurisdictions considering jurors’ use of social media have reached similar results. In United States v. Fumo, 655 F.3d 288, 305 (3d Cir. 2011), the Third Circuit addressed a juror’s use of Facebook, finding no prejudice. The court stated:
The [trial] Court found no evidence that Juror 1 had been contacted regarding the posts, or that Juror 1 had been accessing media sources . . . The Court also concluded that the posts on Facebook were “so opaque that there was no possible way that members of [Facebook’s] Philadelphia network could read them and have any obvious understanding of his discussion.” . . . It then described the posts as “nothing more than harmless ramblings having no prejudicial effect. They were so vague as to be virtually meaningless. [Juror 1] raised no specific facts dealing with the trial, and nothing in these comments indicated any disposition toward anyone involved in the suit.”
Id. at 306. Such seems to be the case with Chase’s tweets. The Third Circuit found persuasive that the lower court viewed the juror as “a trustworthy juror who was very conscientious of his duties.” The Weekly article quotes Chase as saying that he would not have tweeted had the judge given him a specific instruction prohibiting the practice.
However, the Fumo court did expound on the risks of jurors’ use of social media during trial: “If anything, the risk of such prejudicial communication may be greater when a juror comments on a blog or social media . . . given that the universe of individuals who are able to see and respond to a comment on Facebook or a blog is significantly larger.” Id. at 305. The court recommended that judges educate jurors that “their extra-curial use of social media and, more generally, the Internet, damages the trial process and that their postings on social media sites could result in a mistrial, inflicting additional costs and burdens on the parties specifically, and the judicial system generally.” Id. at 332.
Washington Journal of Law, Technology & Arts 