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Court's Order to obtain Facebook postings of Juror

Court's Order to obtain Facebook postings of Juror

Ratings: (0)|Views: 465|Likes:
Published by Forbes
Judge orders juror to turn over his Facebook postings.
Judge orders juror to turn over his Facebook postings.

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Published by: Forbes on Feb 07, 2011
Copyright:Attribution Non-commercial

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07/04/2011

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FEB
-4
20il 
By
S.
l
:'9,
Deputy 
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO THE PEOPLE OF THE STATE OFCALIFORNIA,
DepartmentNumber:
31
Plaintiff,
Case
Number:
08F09791vs.
ORDERGEORGE EDWARD CHRISTIAN,TOMMY CORNELIUS,SAMUEL KEMOKAI,DEMETRIUS ROYSTER,XAVIER WHITFIELD,
Defendants.In this case, jurors were instructed, under CALCRIM 101: "During the trial,do not talk about the case or about any
of
the people or any subject involved
in
the case with anyone, not even your family, friends, spiritual advisors, ortherapists, Do not share information about the case
in
writing, by
telephone, on the Internet, or by any other means
of
communication. You mustnot talk about these things with the other jurors either, until you begindeliberating." This part
of
the instruction is drawn from Penal Code section 1122,which requires,
in
part, that the court instruct the jury about its basic functions,
Z4
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-"--""
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duties, and conduct, including "admonitions that the jurors shall
110t
converseamong themselves, or with anyone else,
on
any subject connected with the trial."Contrary to this instruction, Juror # 1 posted comments concerning the trial
on
Facebook while the case was being tried. Juror # 1 has acknowledged theposting(s), which have now been removed from Facebook. He has reported thatthey contained only innocuous comments, to the effect that he had a boring dayor similar statements. Defense counsel seeks access to the specific postings andany other potential postings made about the trial while it was
in
progress.A question has arisen as to whether the Electronic Communications Act(Title 18. U.S.C. section 2701) bars Facebook from disclosing the contents
of
defendant's posting. Under Title 18, U.S.C. section 2702, an entity such asFacebook may not disclose contents
of
electronic storage except as providedunder the Act. The court has concluded that,
in
light
of
the court's powers overinquiries into juror misconduct, it is unnecessary to determine whether the courtcould order disclosure
of
the documents --although it is likely that the court coulddo so --or whether the Act would unconstitutionally limit the right to a fair trial tothe extent that it would bar access to the postings.A defendant has a Sixth Amendment right to fair trial, including anunbiased jury.
(People
v.
Galloway
(1927) 202 Cal. 81, 92 [ "The right tounbiased and unprejudiced jurors
is
an inseparable and inalienable part
of
theright to trial by jury guaranteed by the Constitution. Upon this proposition all theauthorities agree."].) A showing that juror misconduct has occurred raises arebuttable presumption
of
prejudice to the defendant.
(People
v.
Honeycutt (1977)
20 Cal.3d 150, 156.)
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2 The nature
of
the rebuttal here, which was the juror's statement, made it3 inevitable that defense counsel would seek access to the postings that are4 covered by the Act. And, whatever may be said about the ElectronicCommunications Act, it is clear that the law was not intended to allow a juror to
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violate the court's admonition to keep silent about a case and then claim that the
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Act made the very postings that violated the admonition private and unreachable.
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It is obvious that this information was posted so that others might read it and thatit was not private
in
any sense that relates to this inquiry. (See
Moreno
v.
Hanford
11
Sentinel, Inc.
(2009) 172 Cal. App. 4th 1125, 1130 [posting
on
MySpace page not
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private, even when subsequently removed].)
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Trial courts have inherent power to manage inquiries into juror misconduct.
14
(People
v.
,
Tuggles
(2009) 179 Cal.App.4
th
339, 380.) The inquiry into juror
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misconduct is not simply a matter of dueling presentations by the prosecution and
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defense. Instead, once a showing
of
misconduct has been made, the court also
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must investigate. The court has discretion to subpoena reluctant jurors.
(ld.
at
p.
19
387.) "Jurors may not thwart
an
investigation
of
misconduct by the court itself."
(Ibid.)
In
this case, the court has concluded that the investigation must continue to
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the point at which the postings themselves are available.
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IT
IS,
THEREFORE, ORDERED, that within 10 days from the date
of
this
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order Juror
#
1 execute a consent form sufficient to satisfy the exception stated
in
Title 18, U.S.C. section 2702(b) allowing Facebook to supply the postings made
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by Juror
#
1 during trial. These postings should be supplied directly to the court,
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as
would occur under a criminal subpoena, and the court will redact, if necessary,
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