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Craig Mastantuono May 11, 2010

Social DistortionMay 10, 2010Wisconsin Law Journal Staff

People can blog, tweet or text from almost anywhere — as long as they’re not in a jury box.

It used to be that judges would instruct jurors not to converse about an ongoing case with anyone they might encounter coming in or going out of the courthouse. That’s not enough anymore.

“For years we told jurors not to talk to people in the hallway,” said Milwaukee County Circuit Chief Judge Jeffrey A. Kremers. “Now, technology has expanded it from few dozen people in the courthouse to a few billion on the planet.”

Within the last six months, Kremers and other judges on the state’s Criminal Jury Instruction Committee approved and circulated updates to Crim.J.I. 50 to include restrictions on use of social media by jurors during trial.

In addition to traditional restrictions, pre-trial directives for jurors include a ban on communicating with anyone via text message, Facebook, Twitter, e-mail or blogs during jury service.

Criminal defense attorney Craig A. Mastantuono said judges are more commonly referring to specific forms of social media during pre-trial instructions and recognize the danger.

“There’s just more mobility today,” he said. “Someone can type a few things into their phone and all of the sudden 700 Facebook friends are aware you are sitting in a Milwaukee court on sexual assault case. One can imagine the repercussions.”

While judges can tailor the updates to fit their court, Milwaukee County Circuit Court Judge John J. DiMotto is aggressive with his education of jurors on the reasons for cutting off communication during trial as well as the consequences.

As presiding judge in Probate Court, DiMotto has yet to encounter any problems, but he offers an example to illustrate the potential cost of ignoring jury instructions.

Last year, after being found guilty of public corruption, Baltimore Mayor Sheila Dixon challenged her misdemeanor embezzlement conviction after discovering five jurors “friended” one another on Facebook during the trial.

Dixon later resigned as part of a plea agreement with the State Prosecutor’s Office.

But the situation served as a cautionary tale as to how even seemingly harmless online banter can potentially influence jurors and their verdict.

“Particularly huge cases, like another lead paint case or a future Jeffrey Dahmer case,” DiMotto said. “You have to insulate jurors to the extent that is possible.”

Judges admit there is little they can to completely keep jurors from avoiding electronic communication, which is why many stress the potential problems that even inane interaction can create.

The committee updates indicate that jurors who violate jury rules “may be found in contempt of court and may be responsible to pay the costs of the trial, may be subject to a fine and may even be subject to incarceration.”

Some judges confiscate cell phones and other electronic devices in the jury room, but as Manitowoc County Circuit Court Judge Darryl W. Deets notes, people get them back at the end of the day.

“I think people know they can’t go home and talk to their wife about a case, but they don’t think anything about firing off a bunch of texts,” he said. “That is why you have to state it explicitly.”

Since the explosion of social networking, Mastantuono regularly researches jurors and monitors their online activity during lengthy trials.

“It’s not unusual for someone in my office to run the name of a juror, if we get them ahead of time, through Google, Twitter or Facebook,” he said.

Although DiMotto maintains a blog and a page on Facebook, he refrains from tracking juror activity during trials due to ethical concerns.

However, that could change.

“It is something that might become necessary if juror misconduct is legitimately suggested,” he said. “But then only with the consent of the lawyers in order to avoid potential ethics issues.”

Under DiMotto’s instructions, a fellow juror would be responsible for reporting misconduct to the court. He added that a judge could ask jurors engaged in social networking that, if empanelled, would they consent to being “friended” by the court.

For those who willfully break the rules, finding a juror in contempt could be a reasonable sanction, Waukesha County Circuit Court Judge J. Mac Davis said.

Beyond the potential punishment for jurors is the impact on attorneys and their clients, especially if a case has to be retried.

“The more interesting question could be whether a juror is vulnerable to civil claims for lost expenses of having to retry or do a trial again,” Davis said.

Kremers said at this point, it’s an open question as to whether a judge could order an offending juror to foot the bill for a new trial.

“In an extreme situation, you could have a judge take that step, but it’s an unresolved issue,” he said.

Short of a mistrial, a step could be to simply replace the juror on the trial, said Mastantuono, who added that for prolonged trials, there are substitute jurors available.

And Brookfield criminal defense attorney Jerome F. Buting questioned the practicality of forcing a juror to pay for a new trial.

“I can’t imagine, even if a juror does it deliberately and gets caught, a situation where a judge would order them to pay thousands of dollars in restitution,” he said. “It would be such a chilling disincentive to jurors at a time when it’s hard enough to get people to agree to serve.”