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As Morris case shows, social networking poses web of trouble for trials

TAMPA — As Bloomingdale library rapist Kendrick Morris stood trial earlier this month, and in the hours after he was convicted, fingers tapped across keyboards and thoughts spilled onto the Internet.

They belonged to jurors.

The trial had not concluded when the foreman updated her Facebook page calling testimony "boring, boring, boring." After the verdict, a fellow juror posted a comment on tampabay.com accusing the foreman of having outside information on the case.

Those messages are now evidence in the defense's pursuit of a new trial. The foreman's Facebook records are under subpoena. And the other juror was put on a witness stand Thursday to explain his comment.

With a few double clicks, the Hillsborough case joined a long list of others across the country in which social media has called into question the integrity of a jury, whose charge is to make a fair and impartial decision based only on the evidence in the trial.

In an age when "Googling" is a verb and social networking a lifestyle, how can attorneys and judges keep jurors from breaking the rules?

"You really can't," said St. Petersburg lawyer Jeffrey Brown. "And that's a huge problem."

• • •

There is no shortage of cautionary tales.

In Fort Lauderdale last year, seven weeks into a drug trial, a woman slipped the judge a note saying she'd overheard a fellow juror talk about researching the case on his own. The judge called each juror in, one by one, and asked if he or she had done that. Eight of 12 had Google-searched defendants' names and medical terms. Instant mistrial.

Last month, a West Palm Beach appellate court granted a manslaughter defendant a new trial after it was discovered that a jury foreman used a smart phone during deliberations to look up the definition of "prudent."

Two months ago in Warren, Mo., a 20-year-old juror on a resisting arrest case wrote on Facebook: "gonna be fun to tell the defendant they're GUILTY."

An attorney's son found the posting and the juror got replaced. A judge ordered her to pay a $250 fine and write a five-page essay about the constitutional right to a fair trial.

And in February 2009, a New York apartment building manager was put on trial for negligent homicide, accused of doing nothing to remove illegal walls built by his tenants that confused firefighters trying to escape flames. Two died.

One night while the trial was under way, a juror sent a Facebook friend request to a handsome firefighter injured in the blaze. He didn't respond, so she waited until after the verdict and sent him an e-mail, saying, "I just want you to know that we all fought our hardest for all of you."

The firefighter responded, but told prosecutors what happened.

On the stand, the juror said she's on Facebook every night. On one sleepless night, she started typing in names.

"It was a spur-of-the-moment thing," she said. "As soon as I hit that button, I realized that was a total mistake."

• • •

Why do jurors do it?

Psychologist Douglas L. Keene answers this question for lawyers and judges as a trial consultant.

"We're living in a post-private era where there are people who just don't seem to have a whole lot of concern about other people knowing their opinions about things," he said. "When you're used to blogging or blathering about anything that occurs in your life, it really doesn't strike you that you need to slow down and do it differently because you're under a special circumstance."

Think about crime shows like CSI, said Brown, who teaches at Stetson Law. People get excited about investigating cases. They're curious, they're used to instant information and they know a world of it awaits online.

The judicial system is racing to keep up with technology.

On Oct. 21, the Florida Supreme Court updated the instructions judges give jurors to include no tweeting, texting, blogging or e-mailing about the case. Judges, like the Bloomingdale trial's Circuit Judge Chet A. Tharpe, have given such warnings, but the new instructions set a standard. Other states have implemented similar updates.

Keene encourages judges to tell juries how important it is to follow the rules. But short of sequestration, all they can do is trust the panel.

"The system has always been based on a presumption of good faith," Keene said. "And it needs to continue to be. This is a weird wrinkle in the system. But 100 years ago, jurors were instructed not to read the newspaper. And then 75 years ago, they were instructed not to listen to the radio. … Most jurors follow the rules."

• • •

Back to a courtroom in Tampa on Thursday afternoon. Juror James Wileman watched the shackled convicted rapist walk past him and take a seat, ready to hear about an Internet comment Wileman posted on tampabay.com after the verdict:

As a (juror) on the case, (I) truly believe that there were more than one persons knowing outside information!! I believe he is guilty as well but really really believe some people were not telling the truth under oath!!! I (won't) mention any names … foreman!!!"

"Can you tell us what the basis of your statement was?" the judge asked him.

"It was strictly opinion," Wileman said. "That's all it was."

He answered different versions of that question the same way, and a judge dismissed him.

But Morris' defense attorneys will move to the subject of Wileman's accusations: jury foreman Robin Richter and her comments during and after the trial.

Her public Facebook posts indicate no outside knowledge of the case, but Assistant Public Defender Rocky Brancato thinks they could have solicited messages he hasn't seen.

He sent Facebook a letter to preserve the records. And on Thursday, Judge Tharpe granted a defense request for a subpoena. Tharpe said he has to make sure Morris got a fair trial.

Richter has denied getting outside information. The judge will decide the next step after attorneys review the records. In theory, a tainted jury could lead to a new trial.

Wileman said he doesn't want that. He sat through days of testimony about the rape of a young woman outside the library. He believes Morris is guilty.

"If I knew the consequences of posting that," Wileman said, "I would have never done it."

This report included reports from the Detroit Free Press, Newsday, the New York Post, the Miami New Times and the Palm Beach Post. Alexandra Zayas can be reached at azayas@sptimes.com or (813) 226-3354.

As Morris case shows, social networking poses web of trouble for trials 10/28/10 [Last modified: Friday, October 29, 2010 9:30am]
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