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3 FEB - 4 20il

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By S. l :'9, Deputy

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7 SUPERIOR COURT OF CALIFORNIA

8 COUNTY OF SACRAMENTO

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10 THE PEOPLE OF THE STATE OF
CALIFORNIA, Department Number: 31
11 Plaintiff,
Case Number: 08F09791
12 vs.
ORDER
13 GEORGE EDWARD CHRISTIAN,
TOMMY CORNELIUS,
14 SAMUEL KEMOKAI,
DEMETRIUS ROYSTER,
15 XAVIER WHITFIELD,
Defendants.
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In this case, jurors were instructed, under CALCRIM 101: "During the trial,
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do not talk about the case or about any of the people or any subject involved in
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21 the case with anyone, not even your family, friends, spiritual advisors, or

22 therapists, Do not share information about the case in writing, by email.by

23 telephone, on the Internet, or by any other means of communication. You must

24 not talk about these things with the other jurors either, until you begin
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deliberating." This part of the instruction is drawn from Penal Code section 1122,
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which requires, in part, that the court instruct the jury about its basic functions,
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 duties, and conduct, including "admonitions that the jurors shall 110t converse
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2 among themselves, or with anyone else, on any subject connected with the trial."

3 Contrary to this instruction, Juror # 1 posted comments concerning the trial

4 on Facebook while the case was being tried. Juror # 1 has acknowledged the
5 posting(s), which have now been removed from Facebook. He has reported that
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they contained only innocuous comments, to the effect that he had a boring day
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or similar statements. Defense counsel seeks access to the specific postings and
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any other potential postings made about the trial while it was in progress.
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10 A question has arisen as to whether the Electronic Communications Act

11 (Title 18. U.S.C. section 2701) bars Facebook from disclosing the contents of
12 defendant's posting. Under Title 18, U.S.C. section 2702, an entity such as
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Facebook may not disclose contents of electronic storage except as provided
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under the Act. The court has concluded that, in light of the court's powers over
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inquiries into juror misconduct, it is unnecessary to determine whether the court
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17 could order disclosure of the documents -- although it is likely that the court could

18 do so -- or whether the Act would unconstitutionally limit the right to a fair trial to

19 the extent that it would bar access to the postings.

20 A defendant has a Sixth Amendment right to fair trial, including an
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unbiased jury. (People v. Galloway (1927) 202 Cal. 81, 92 [ "The right to
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unbiased and unprejudiced jurors is an inseparable and inalienable part of the
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right to trial by jury guaranteed by the Constitution. Upon this proposition all the
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25 authorities agree."].) A showing that juror misconduct has occurred raises a

26 rebuttable presumption of prejudice to the defendant. (People v. Honeycutt (1977)

27 20 Cal.3d 150, 156.)

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2 The nature of the rebuttal here, which was the juror's statement, made it

3 inevitable that defense counsel would seek access to the postings that are

4 covered by the Act. And, whatever may be said about the Electronic
5 Communications 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 that
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10 it 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

12 private, even when subsequently removed].)

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Trial courts have inherent power to manage inquiries into juror misconduct.
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(People v. Tuggles (2009) 179 Cal.App.4th 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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17 defense. Instead, once a showing of misconduct has been made, the court also

18 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."
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(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
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25 Title 18, U.S.C. section 2702(b) allowing Facebook to supply the postings made

26 by Juror # 1 during trial. These postings should be supplied directly to the court,
27 as would occur under a criminal subpoena, and the court will redact, if necessary,
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 to insure that no content except that related to the trial is disclosed. The court
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2 may also provide a protective order further limiting disclosure of the information, if

3 that appears necessary.

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~l/Iff
MICHAEL KENNY
6 Dale:
Honorable MICHAEL P. KENNY,

7 Judge of the Superior Court of California,

County of Sacramento

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