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Keeping the World Out of the Courtroom

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Spending time on Twitter, Facebook, MySpace or LinkedIn is every American's right. But being hooked up to the internet has become an obsession for many people who are afraid not to be connected, as if being out of touch for even an hour would somehow put them at a major intellectual and social disadvantage.

Well, if you're in a court of law you're supposed to be out of touch for as long as the court case continues: no tweeting, blogging, texting or chat room posting about the case is allowed. The mandate to concentrate on the case applies to defendants, plaintiffs, judges, lawyers, witnesses and it especially applies to jurors.

Many juries are now routinely instructed that, in addition to avoiding conversations, newspaper and television news coverage about their case they must stay off computers so as not to be exposed to any prejudicial information. Verdicts are supposed to be reached only on evidence presented in court.

But in our technologically advanced age some jurors just can't seem to help themselves.
Not long ago a California court was forced to release an entire panel of 600 potential jurors when several admitted they'd gone on-line to research a case. They expressed confusion about whether the instruction not to do research actually applied to the internet.

In Florida last year a juror in a major federal drug trial admitted he'd ignored instructions and had researched the internet for details on the case. Even more stunning was the revelation from eight other jurors that they'd done the same thing! After eight long weeks of testimony the judge had no choice but to declare a mistrial.

Besides doing rogue research jurors are routinely discovered posting comments about what's gone on in court -- before, during and after the proceedings -- another big no-no. During trials in Colorado, Arkansas, Maryland, New Jersey, California, New York, New Hampshire, Pennsylvania and Ohio (there are likely others too) that's caused major headaches.

At the federal corruption trial of a state senator Vincent Fumo in Pennsylvania a juror was found to have been posting regular updates on both Twitter and Facebook. He even told his readers when to expect a "big announcement," presumably the verdict. The judge refused to declare a mistrial and the politician was found guilty. His appeal, based on juror misconduct, prolonged the process. He's now serving a 55 month prison sentence.

Jurors seem to be most tempted to jump to their favorite social media spot during cases that grab local headlines, as though they can't bear to be excluded from the community's discussion. Later many, inexplicably, say that they didn't equate tweeting or texting with actual communicating. There seems to be a real disconnect with many courtroom participants.

In one instance the accused was caught anonymously blogging about his own wrongful death case. Dr. Robert Lindeman, a Natick, Massachusetts pediatrician was on trial for malpractice in the death of a 12 year old boy and was secretly writing under the pseudonym "Flea." His blog blasted the opposition, members of the jury he claimed were "dozing" and he even revealed his defense team's strategy. Dr. Lindeman was confronted on the stand by a diligent plaintiff's attorney who asked if he wrote a medical blog. He answered yes. She then asked something the jury didn't understand: Was he the mysterious Flea? Dr. Lindeman had to admit he was. The very next day the doctor settled the case for what was reported to be "a substantial amount."

There have also been cases where judges and lawyers who are Facebook friends find themselves working in the same courtroom. The opposition lawyer can easily use that relationship to challenge the judge's impartiality. In fact, Florida's Judicial Ethics Advisory Committee recently decided all social media contacts are problematic and issued a ruling that judges should "un-friend" attorneys who might appear before them. The committee declared such on-line relationships could be seen as "lawyer friends" having a special position to influence the judge.

Michigan became the first state to officially ban all courtroom participants from electronic communications during trial. Sounds like a great idea to me. As does the San Diego court system's practice of making jurors actually sign a declaration promising to stay off the web. Also good, the suggestion that jurors should be reminded at both the beginning and end of every court day that going on-line is not allowed.

Our justice system is playing technological catch up with the times and some sort of nationwide guidelines are overdue. Probably all outsiders' cell phones should be checked at the courthouse door to lessen the likelihood of a bathroom break turning into a time for a quick Google search. Maybe courthouses should become no Wi-fi zones, allowing internet access only to court personnel.

We're obviously long past the point where a simple "do not discuss this case amongst yourselves or with others" will do the trick.

Contact Diane Dimond through her web site: www.DianeDimond.com