When empaneled jurors make social media posts during a trial, they risk opening Pandora’s box—a recurrent issue in courtrooms throughout the United States and in many foreign countries.
The current case of a woman called “Juror X” in a Cincinnati federal court illustrates how jurors invite scrutiny and possibly jeopardize a verdict when they choose to make online trial-related statements, in possible violations of court rules that seek to insulate jurors from influences outside the courtroom.
Lawyers for Alexander “P.G.” Sittenfeld, a former Cincinnati city councilman who was convicted of two corruption-related charges, are asking a federal judge to allow forensic examination of Juror X’s cellphone, other devices, and social media accounts.
They cite concerns over the juror’s communication with 29 non-jurors on Facebook throughout Sittenfeld’s trial in June and July, despite a judge’s repeated instructions to “not communicate with anyone about the case” via electronic devices or any other means.
Prosecutors object to the proposed probe, calling it “an extraordinary intrusion.” But Sittenfeld’s lawyers call the request “sensible.”
They say inspection of the juror’s devices is the only way to definitively prove whether Sittenfeld’s right to an impartial jury was violated as a result of “extraneous influence” that could have resulted from Juror X’s Facebook postings.
As of Aug. 3, both sides were waiting for U.S. District Court Judge Douglas Cole to rule on the request.
Contempt citing possible?
During trials, jurors are routinely told: Don’t read, watch or listen to any accounts of the case. Don’t conduct your own research. Don’t discuss the case with anyone, not even fellow jurors, while evidence is still being presented.
Yet those rules are probably bent or broken frequently, says Thaddeus Hoffmeister, a law professor at the University of Dayton in Ohio.
Sometimes that’s because prohibitions are somewhat unclear to jurors; other times, it’s because people must fight a near-irresistible urge to seek or share information.
“When [the rules] say ‘don’t talk about the case,’ that includes not talking about it on social media,” Hoffmeister said in an interview with The Epoch Times. “But I don’t believe you can be somewhere for eight hours and not talk about it. It goes against human nature.”
Divulging information about a pending case to one’s spouse is even prohibited, Hoffmeister said, even though many people probably have a hard time maintaining such secrecy, and they don’t see any harm in making a private disclosure.
Still, any reaction from the spouse, whether spoken or just a gesture or facial expression, could sway a juror’s opinion.
A bigger concern arises when jurors make seemingly innocuous statements about a pending case to a broader audience, via Facebook or another online platform.
Not only does that increase the likelihood that the jurors will be “caught” making forbidden remarks, but it also increases the risk that the juror’s verdict could be improperly influenced when people post comments and internet links in response, Hoffmeister said.
Laura Temme, a legal writer for FindLaw’s legal professionals’ website, wrote in 2019: “Social media causes a tug of war between two pillars of trial law—in one corner, the right to a fair trial; in the other, the right to an open trial.”
“A juror might Google the lawyers involved, the defendant, legal definitions, and evidence excluded from the lawsuit without understanding the ramifications of doing so.”
While Juror X’s activities didn’t go that far, Cincinnati attorney Mike Allen, a former judge and prosecutor, still thinks that the juror should face ramifications. He disagrees with the prosecutors’ contentions that Juror X misunderstood the rules.
“To me, the rules are crystal-clear,” Allen told The Epoch Times, adding that he thinks Judge Cole ought to cite Juror X for contempt of court.
“This is getting to be a trend with jurors in these high-profile cases, with the jurors just disregarding what the judges say. To completely ignore the instruction, somebody needs to make an example,” Allen said.
“The message needs to go out: When the judge says don’t do something, you don’t do it.”
Allen doesn’t advocate jail time for the Facebooking juror, but he thinks a fine should be levied.
“I’m not head-hunting this juror,” he said. “But you listen to these three-week trials and they’re risking having to do it all over again because someone didn’t follow the judge’s orders.”
Such conduct can lead to a mistrial if it can be proven that a juror’s decision was improperly influenced by factors outside the courtroom.
So far, Allen sees no evidence that happened with Juror X. Still, he said, that could change depending on whether the judge allows examination of the juror’s devices.
“It’s an issue that needs to be fleshed out,” he said.
About the Case
The controversy surrounding the Sittenfeld juror dates to July 8. As the trial judge prepared to announce that the jury had reached a verdict, he alerted lawyers on both sides about a concern: Courthouse staff had learned that a juror had repeatedly posted about the case on Facebook.
The posts occurred during jury selection, throughout the trial, and on the night before the verdict was announced, court records show.
As described by Sittenfeld’s lawyers, “Juror X’s posts alleged, among other things, that Juror Y ‘shouldn’t be on the jury’ because Juror Y ‘hates anyone that shares the same profession as our person on trial. Not cool!!’”
Because of the posts, Sittenfeld’s attorneys moved for a mistrial, which the judge denied.
Sittenfeld, 37, was found guilty of bribery and attempted extortion; the jury acquitted him of four other charges—a verdict his lawyer, Charlie Rittgers, called “contradictory” in an interview with The Epoch Times.
Allen agreed, saying the split verdict seemed to represent “a compromise” among jurors who wanted to acquit and those who wanted to convict.
Sittenfeld’s trial, which started June 21, arose from a 2020 indictment, which alleged Sittenfeld stated he would “deliver” city council votes to move a proposed real-estate development project forward; the statements were made during meetings that undercover FBI agents recorded, court records show.
Prosecutors alleged that Sittenfeld “corruptly solicited” $40,000 in payments to a political action committee.
Friends Egged Her On
The defense team argued that the allegations were based on inferences; there never was an expressly stated agreement that Sittenfeld’s vote could be “bought” with those funds.
Sittenfeld’s lawyers also argued that their client’s actions were based on ordinary campaigning and fundraising practices.
Post-verdict, Judge Cole held an in-chambers hearing with Juror X and Juror Y. Court records reveal limited information about the questioning of Juror Y but extensively discuss Juror X’s statements during the hearing.
Court records say she denied committing any infractions based on her understanding of the rules.
But Sittenfeld’s lawyers argue that Juror X committed “blatant, repeated violations.” Exhibits showing the juror’s Facebook activities and interactions with other Facebook users during the trial fill 29 pages of court records.
Some of her Facebook friends egged her on, asking for details, which prosecutors said she didn’t provide. Juror X’s responses and identifying information are redacted from court records.
Juror X’s Facebook posts were critical of a couple fellow jurors. Besides stating that Juror Y shouldn’t be on the jury, she also wrote that Juror Y was “on my damn nerves,” and stated that Juror Z “doesn’t know a comfortable silence. Kinda wish her tongue would fall out.”
However, Juror X posted that she enjoyed jury duty. “It’s the bees knees,” she wrote, but later posted that she missed her daily routine.
Although Juror X didn’t directly state which case she had been assigned to decide, defense lawyers say the juror “left a trail of breadcrumbs” to the Sittenfeld case.
Juror X’s posts disclosed that she was a juror, that she “checked in” at Cincinnati’s Potter Stewart Courthouse, and that the case was “a big one.”
Sittenfeld’s legal team alleges that Juror X gave “spurious and inconsistent testimony” when questioned about her posts, but no specifics were revealed in court records; several sentences following the accusation are redacted, along with portions of other filings from both the prosecution and defense.
Prosecutors contend that the juror “testified credibly” at the hearing and even “voluntarily displayed her phone to the defense.”
No ‘Extraneous Information’
Three days after the verdict, the court provided lawyers with additional screenshots of Juror X’s posts, then granted a defense motion to preserve the juror’s electronic communications. But by then, Juror X stated there was nothing to preserve; she had deleted her Facebook posts.
In a written declaration to the court, Scott Greene, with Evidence Solutions Inc., in Tucson, Ariz., said that if he were provided with Juror X’s devices as requested, he most likely would be able to recover content that was deleted, modified, or hidden.
He also could see whether any links had been accessed, including a Cincinnati Enquirer article that someone posted in a comment on Juror X’s page.
In a written response to the defense’s request, assistant U.S. attorney Megan Gaffney Painter said examining the juror’s devices is unwarranted.
“The defense has not shown—nor could they—that Juror X’s Facebook activity exposed her to extraneous information” that may have affected the verdict, Painter wrote.
She called the proposed search “an extraordinary intrusion.”
She noted that the juror, when questioned under oath, testified she did not read or review any articles about the case and also did not discuss the facts of the case with anyone.
Juror X’s posts “functioned more like announcements of her experiences as a juror, and did not include any specific details about the evidence or her opinion of the evidence,” Painter wrote.
Further, the juror thought it was OK to post nonspecific information about the case and “did not believe there was a prohibition on the use of social media or posting generally,” Painter said.
As jurors were dismissed to begin deliberations, jurors were read a page-and-a-half of instructions which stated, in part: “During your deliberations, you must not communicate with or provide any information to anyone by any means about this case … you cannot talk to anyone on the phone, correspond with anyone, or electronically communicate with anyone about this case.”
Earlier in the trial, the judge also said, “You must not communicate with anyone about the case on your phone or computer, through email, text messaging, social media, or any website, or any other means of communication.”
Social Media Postings
The defense asserts that Juror X “never spoke up” when the judge asked jurors to disclose any possible infractions of the court’s orders.
“She was continually dishonest by commission and omission,” Sittenfeld’s attorneys wrote in court records.
But prosecutors say Juror X “had nothing to ‘speak up’ about,” prosecutors wrote, because she only posted “generally” about her experiences and not “about the case” itself.
“At most, Juror X posted her opinion of two of her other jurors. That is not a violation of the court’s instructions such that it warrants her being labeled a liar.”
Under the law, the defense is entitled to a “meaningful investigation” into the circumstances of the juror’s social media postings, Sittenfeld’s lawyers say.
They maintain they did not get the required “unhurried and thorough” chance to investigate during the post-verdict questioning of Juror X and Juror Y.
“It does not get much more hurried and un-thorough than simultaneously learning of both Juror X’s Facebook posts and the fact that there was a verdict, reviewing the posts, asking for a mistrial, taking the verdict … taking intermittent opportunities to research the applicable juror misconduct law on the court’s public WiFi, and then questioning Jurors X & Y—all in the course of two hours and 24 minutes.”
The defense maintains that Juror X was untruthful in her testimony, and “her blatant, repeated violations” of communications restrictions “should subject her to a forensic examination of the tools with which she violated the court’s admonishments.”
“Privacy concerns notwithstanding, this is an outcome that Juror X chose by her conduct.”
Overturning Convictions is Rare
Hoffmeister, the law professor, said hard data is lacking to show how often such controversies erupt.
But the problem seems to arise pretty often, he said, quickly rattling off cases that have grabbed headlines over the past decade.
The most remarkable example happened in Arkansas, where a death sentence was overturned because a juror had repeatedly tweeted about the case. The defendant later pleaded guilty and avoided the death penalty.
Hoffmeister said he was unaware of any other convictions being overturned because of jurors’ social media use. Based on his knowledge of the juror’s actions in the Sittenfeld case, Hoffmeister said, “It opens up a can of worms, but I don’t think what she’s saying is sufficient to disturb a verdict.”
That could change, he said, if additional information surfaces. Sittenfeld is awaiting sentencing, which will be based on complex federal guidelines.
Meanwhile, Hoffmeister said he sees no easy way to control jurors’ external communications and prevent possible mistrials. Many different approaches have been attempted in recent years.
In some states, such as California, Michigan, and New York, jurors face fines for using social media during trials; the penalties vary, often within the $1,000-$2,000 range, Hoffmeister said.
Occasionally, jurors are criminally charged with contempt.
‘Too Wedded to Our Phones’
“But I don’t know if that solves the problem,” Hoffmeister said.
He thinks the potential for facing criminal charges would deter more people from serving on a jury.
“It just gives you one more reason why you want to get out of jury duty,” he said.
Ironically, even though people tend to grouse about jury duty, “most people who serve on a jury are very pleased with their experience; most everyone you talk to is happy that they served,” Hoffmeister said.
Hoffmeister said a San Francisco judge offered a creative preventative measure in one highly publicized case.
Acknowledging that there would be a lot of news coverage, the judge promised jurors that they would receive a scrapbook containing all the information they missed while barred from viewing news reports.
Hoffmeister outlined other valuable steps, including clarifying instructions, clearly explaining the reasons for the restrictions, and requiring jurors to sign an oath that declares, under penalties of perjury, they will refrain from commenting about the case while it is in progress.
Despite such measures, “The problem hasn’t gotten better … I don’t think there is a panacea; you have to attack it from different angles,” he said.
“And it’s complicated because we’re too wedded to our phones.”