January 30, 2010

Social Networking Threatens Another Jury Verdict

Posted in Best practices, Courts and social media, Criminal activity, Jury misconduct tagged , , , at 2:34 am by bizlawblog

A recent article by Andrew Wolfson in the Louisville Courier-Journal recounts yet another in a rapidly growing number of cases involving allegations of jury misconduct. Jury misconduct has historically been a relatively rare occurrence, although certainly not without precedent. Wolfson reports:

A federal jury’s verdict exonerating a Louisville Metro Police officer in a Taser-related death has come under attack after the foreman was accused of researching the weapon on the manufacturer’s Web site and using the information to sway other jurors.

The case is one of a rising number nationally in which jurors have used iPhones, BlackBerrys and home computers to gather and send information about cases, undermining judges and jury trials.

The case involves the death of a man who died after police officers shocked him with a Taser. The lawyer for the man’s estate wants U.S. District Judge John B. Heyburn II to set aside the verdict because the lawyer said a juror called him to say that “at least two jurors, including the foreman, whom she described as ‘the principal advocate for police,’ consulted Taser International’s Web site and used information from the site to try to persuade other jurors.” The juror who made the call testified, during a hearing on the alleged jury misconduct, “that both jurors mentioned that the company’s Web site claims that Tasers are ‘non-lethal’ and cannot cause fatal injuries.” The juror is also reported as having said:

“It really, really bothered me that they were using that … instead of what was really said in the courtroom.”

Heyburn said at the hearing that he saw no need to punish the jury foreman, but he added: “It’s a teaching lesson for all of us that we need to be more careful about our indoctrination of jurors.”

These cases of social media related misconduct are literally running from one corner of the country to another, and are not related to jurors alone. An Oregon case reported in the Portland Business Journal related that:

Multnomah County Circuit Court Judge Youlee Yim You was shocked during her inaugural trial to discover that a domestic violence defendant was texting the victim — his girlfriend — while she was on another floor of the building waiting to testify.

A number of technology and social networking related cases have popped up in Florida recently. An article in the Florida Bar Journal by Ralph Artigliere, Jim Barton and Bill Hahn, gives a snapshot of just how big this has become.

The problem of outside influence on jurors is no longer confined to high profile cases that are covered in the press or other media. Courtroom misconduct seems to be everywhere. Recently, a witness in Miami was discovered texting his boss about his testimony during a sidebar conference resulting in a mistrial; a South Dakota juror in a seat belt product liability case Googled the defendant and informed five other jurors that the defendant had not been sued previously; a juror in a federal corruption trial in Pennsylvania posted his progress during deliberations on the Internet resulting in a motion for mistrial; a juror in Bartow, Florida, looked up a defendant’s “rap sheet” online and told fellow jurors, resulting in a mistrial; and jurors in a Florida criminal case made anti-Semitic comments to each other and consulted one of the jurors’ accountants during deliberations by telephone. Nine of the jurors on a deliberating panel in a federal case in Miami admitted to the judge that they had been doing research on the case over the Internet, resulting in a mistrial. The judge learned that the jurors were Googling the lawyers and the parties, finding news articles about the case, researching definitions and information on Wikipedia, and looking for evidence that had been excluded in the case. All this was accomplished despite the judge’s repeated instruction not to do so. These examples represent recent transgressions that were discovered, and probably represent just the tip of the iceberg of juror behavior.

In another Flordia case, reported by Laura Bergus,

A Circuit Court judge in Miami-Dade County, Florida, this week dismissed a civil fraud case brought by Sky Development against Vistaview Development. The suit claimed that Vistaview misrepresented the number of units in a condo tower Sky purchased from Vistaview last year.

The dismissal comes after a mistrial mid-May, when Judge Scott Silverman deemed text messaging between two Sky Development officials in court, one of whom was on the witness stand, as “completely…absolutely outrageous.”

Jon Gambrell reported on an Arkansas case in a Law.com article:

A building materials company and its owner have appealed a $12.6 million verdict against them, alleging that a juror posted messages on Twitter during the trial that show he’s biased against them.

Another described what “Juror Jonathan” did today: “I just gave away TWELVE MILLION DOLLARS of somebody else’s money.”

Even judges and lawyers have fallen into the social media dog house, when involved in court proceedings. A California lawyer was suspended from the practice of law because of his blogging while serving as juror. Martha Neil reported in the ABA Journal that an appeals court reversed and remanded the felony burglary case on which the lawyer was sitting as a juror, and:

Although reportedly warned by the judge not to discuss the case, orally or in writing, Wilson apparently made a lawyerly distinction concerning blogs: “Nowhere do I recall the jury instructions mandating I can’t post comments in my blog about the trial,” he writes, before forging on with unflattering descriptions of both the judge and the defendant. He also failed to identify himself as a lawyer to the trial participants, the bar journal notes.

At least one court is trying to curb the social media problem by adding an additional set of admonitions to jurors. An “updated” set of jury instructions Supreme Court of Florida now includes the following language:

Many of you have cell phones, computers, and other electronic devices. Even though you have not yet been selected as a juror, there are some strict rules that you must follow about using your cell phones, electronic devices and computers. You must not use any device to search the Internet or to find out anything related to any cases in the courthouse.

In this age of electronic communication, I want to stress that you must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all. Do not send or accept any messages, including e-mail and text messages, about your jury service. You must not disclose your thoughts about your jury service or ask for advice on how to decide any case.

NOTE ON USE

This instruction should be given in addition to and at the conclusion of the instructions normally given to the prospective jurors. The portion of this instruction dealing with communication with others and outside research may need to be modified to include other specified means of communication or research as technology develops.

Despite the efforts of judges to reduce the problem, the incidents of jury misconduct related to social networking seem to be growing by leaps and bounds. Thaddeus Hoffmeister acts as editor of the Juries blog, which is increasingly dedicated to recounting stories of such jury misconduct. Likewise, the Deliberations blog had added a new category, Jurors and the Internet, stating it was necessary for “pulling together all the posts here on the subject:”

Over the last two years we’ve accumulated posts on jurors who blog (lots of those, actually), jurors who read blogs, jurors on Facebook and other social networking sites, jurors on Twitter, jurors researching the case on the Internet, jurors who comment on news stories,  how to ask jurors about social networking, how to find jurors’ on-line writing, why it matters, and how to deal with problems when they arise.  The way things are going lately, there will probably be many more.

The title of yet another article seems to tell the story: If We Strike All The Facebook Jurors, Who’s Left?

If we strike everybody with an I-hate-jury-duty status update somewhere on the Internet, we’re going to run out of jurors really fast.

The legislative and judicial systems have historically been far behind advances in technology. E-discovery was, and perhaps still is, the case in point. Without a paradigm shift, we must wonder where all this is going, and what impact it will have on a system of which some have said, “the wheels of justice grind slow, but they grind exceeding fine.”

The wheels may grind slowly, but the news is sure travelling faster and further all the time.

That’s what I think. Please leave a comment and let us know what you think.

If you are really interested, I just started yet another free group on LinkedIn, Social Media Search and Forensics. Many of these articles and discussion about them are posted there. Please join us.

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November 6, 2009

Did Twitter Replace Cell Phones for Ft. Hood Shooting News?

Posted in Best practices, Criminal activity, Facebook, Productivity, Social Media Tools, Social networking policy, Twitter tagged , , , , , , , , , , , , at 11:41 am by bizlawblog

For some time now, I’ve been seeing more and more articles questioning whether newer social media channels were in the process of replacing, rather than supplementing, more “traditional” means of communication. I know many of my neighbors, and a few of the lawyers I know, have replaced their traditional “land line” with cell phones.

When I moved my office to the ‘burbs a few years ago, after practicing downtown for nearly thirty years, I had to hire a third party phone company to “move” the phone number I’d been advertising on business cards and stationary. Otherwise, I was faced with losing my long-standing number, which most lawyers considered something of a death sentence in those days. The result was, until about a week ago, that I paid one phone bill just for the old number, and then paid another phone bill for my trunk service, internet, roll-over numbers, etc.

I am in the process of painfully shedding the now “fake” number. What I’ve found, in just a few, short years since I moved my office out of downtown, was that when anyone from my office called out, the recipient picked up the non-advertised, local exchange number. They often plugged that into their cell phone or office phone’s electronic “address book” and simply pushed one button when they wanted to call us. The number they dialed, ended up being the unadvertised, local exchange number. This made the “prettier,” advertised number something of an anachronistic situation, with fewer and fewer clients, lawyers, judges, and others using it.

Eventually, keeping the old number just made less and less sense, because advances in technology and the way people were using technology dictated a new paradigm. After all, we’re rapidly moving in the direction of virtual law firms and consultants. Because of cell phone technology and office automation advances, I’m using making less use of a “static” office and spending much more time, in my law practice, in my consulting business, and as a pro bono SCORE counselor, visiting clients in their offices. Since I typically pick up much more information about my clients’ need when I visit their office than when they visit mine, this is a “good thing” for my clients and me. The paradigm is moving for me, and I’m thinking I’m not alone in this.

“Way back” in August of 2009, Mark ‘Rizzn’ Hopkins’ article, posted on the siliconANGLE blog, asked the question, Could WordPress Be the Natural Successor to Twitter, Friendfeed and Facebook? As we move from Web 2.0 to Web 3.0 the borders between competing software applications and even between software and hardware are likely to blur. For now, however, the question remains, whether newer social media channels are in the process of replacing, rather than supplementing, more “traditional” means of communication. Recently, some friends on facebook responded to a comment I had made there, indicating this question might be increasingly likely to be answered in the affirmative. The very fact that I had posted something on facebook, being a relatively new user, and that there was a growing debate on this relatively new social networking channel, gives a premonition of where my thoughts on this lie.

Some pretty wise people have opined that you don’t really know a person until you see them in a stressful situation. It is then that you often have a better view into what makes them tick. The same is often true in business. What a company is made of is often not really seen until a crisis develops and they either come out on top or start a downward spiral. The same may be true of communication channels.

Sarah Needleman’s Wall Street Journal article, Entrepreneurs ‘Tweet’ Their Way Through Crises, demonstrates that businesses are starting to use Twitter and other social media to handle day-to-day crises. Needleman’s article points out:

The social-media service — where users send short “tweets” to followers who have signed up to receive the messages — came in handy for Innovative Beverage Group Holdings Inc., whose drankbeverage.com site crashed last month after a surge in traffic following a segment on Fox News for the company’s so-called relaxation beverage, which contains “calming” ingredients like valerian root and melatonin. News Corp. owns Fox News as well as The Wall Street Journal.

Innovative Beverage notified consumers on its Twitter feed that it was working to resolve the problem. The company also did a search on Twitter for mentions of the site crash, so it could respond with tweets describing its repair efforts.

Twitter gave us an up-to-the-minute ability to take what would normally be a crisis situation and make it just another event,” says Mr. Bianchi. “You can’t do that with a 1-800-number.”

As of Monday, drankbeverage.com had more than 1,000 Twitter followers.

KD Paine points out in an article on her blog, Can Twitter replace Walter Cronkite as “the most trusted ‘MAN’ in America”?, that there is a debate raging about the level of trust in the news we get these days, and, in particular whether we can trust the news and views from traditional media sources. Trust is one thing and access is another.

The horrible tragedy of the Ft. Hood shooting yesterday confirmed, for me at least, that there is a growing movement to use Twitter and other social media, rather than more traditional media, to convey news in a crisis. I heard that cell phone service essentially “crashed” during this Ft. Hood crisis, as soldiers from abroad tried to call family and comrades in the Ft. Hood area to learn what had happened. The Honolulu Advertiser‘s article, Shooting leaves 12 dead, 31 wounded reported:

The school and base were in lockdown. Normal phone lines were working but cell phones were overloaded.

“Now I can’t even get a hold of her. The cell phones are jammed. I can’t even send a text,” Biggers said. “They still have us on lockdown. I’m just staying right beside my computer with the news on and praying.”

Michael Winter’s article, A 13th death reported in the Fort Hood rampage, walks us through one version of the time line. Here’s a portion relevant to the point I’m making:

Update at 6:57 p.m. ET: Fort Hood officials are asking that family members trying to reach their loved ones should send a text message instead of calling, because phone circuits are overloaded.

Also, Twitter has three main threads for sending messages or following the story: FortHood, #FortHood and #FTHood.

Update at 6:30 p.m. ET: The Waco Chapter of the American Red Cross has a Web site where you can check on base personnel. Register here.

Eric Berlin’s article on Technorati, Fort Hood Shooting Spree: The Blogosphere Reacts, provides some insight, in terms of where all this might be headed:

The blogosphere is already responding in earnest to the horrific shooting spree at a Texas military base that resulted in 12 deaths and 31 wounded…

Twitter has become a central focus for communication, link sharing, information dissemination, and on the ground reporting during breaking news stories, so tech bloggers are looking at how Twitter is being used tonight. MG Siegler at TechCrunch speculates about how Twitter is influencing its Trending Topics feature to bring breaking news stories to the forefront immediately. “And that it may even in some way rank tweets to show more relevant ones for the topic at hand,” Siegler writes.

Twitter itself, seems to periodically question just how effective it is. An article on the Twitter Web site by Jenna Dawn, Get to the Point: Twitter Trends, even acknowledges:

As Twitter grows and the number of tweets each day continues to astound us, we’ve noticed an increasing amount of clutter in the public timeline, especially with trending topics. Trends began as a useful way to find out what’s going on but has grown less interesting due to the noisiness of the conversation.

As one cable network might say, “we report, you decide…” When the military is telling folks to try texting to get information, the Red Cross is setting up a Web site to help people check on base personnel who might have been involved in the crisis, and Twitter replaces a broken down cell phone system, I have to wonder if my original thoughts on the paradigm shift might not have been right.

That’s what I think. Please leave a comment and let us know what you think.

If you are really interested, I just started yet another free group on LinkedIn, Social Media Search and Forensics. Many of these articles and discussion about them are posted there. Please join us.

October 23, 2009

Judicious Blogging

Posted in Best practices, Courts and social media, Criminal activity, Productivity, Social Media Tools tagged , , , , , at 12:49 pm by bizlawblog

The impact of social networking has been increasing rapidly on the court system. The range is broad, to say the least.

Nearly a year ago, an Australian court approved a lawyer’s request to use Facebook to serve court documents after several failed attempts by other methods, including a personal visit and attempted service by e-mail. Australian courts had previously given permission to servie people via e-mail and text messages when other forms of personal service had proven unsuccessful. In this case, the Australian judge said
“It’s somewhat novel, however we do see it as a valid method of bringing the matter to the attention of the defendant”

Nearly a year ago, an Australian court approved a lawyer’s request to use Facebook to serve court documents after several failed attempts by other methods, including a personal visit and attempted service by e-mail. Australian courts had previously given permission to serve people via e-mail and text messages when other forms of personal service had proven unsuccessful. In this case, the Australian judge said:

“It’s somewhat novel, however we do see it as a valid method of bringing the matter to the attention of the defendant”

You’ve been served … on Facebook

On the other side of judicious blogging, the Associated Press reports that a blogger has just been released on $500,000 bond, after he was accused of threatening judges and legislators in two states. He allegedly posted threats against Connecticut legislators and wrote that three federal judges in Illinois deserved to die, after they had declined in a recent court ruling to overturn laws banning handguns in the Chicago area.

According to the AP story:

The blogger, Hal Turner, in a June 2 Web posting on the same day of the ruling, called the decision an “outrage” and said that the judges “deserve to be killed.” The complaint charged him with threatening to assault and murder the judges in retaliation for performing their official duties.

Blogger Charged With Threatening to Kill Three Federal Judges

The blogger’s attorneys say he merely gave his opinion, which was protected free speech, but a U.S. Department of Justice press release gave a different point of view. It reported some of the early investigative findings which indicated the defendant’s blog referenced that the 7th Circuit had issued an opinion in National Rifle Association v. Chicago.

“Apparently, the 7th U.S. Circuit court didn’t get the hint after those killings,” Turner said in his posting. “It appears another lesson is needed.”

Turner’s postings also included a photo of the Dirksen Federal Building in Chicago where the judges work, and included arrows pointing to “anti-truck bomb barriers” that surround the courthouse building, plus a map of the location of the building, federal prosecutors said in the complaint.

At least some members of the judiciary must feel it is better to post than to be posted about. According to a New Jersey Judiciary press release:

The Judiciary is taking advantage of the latest media developments to keep the public informed of the latest court developments.  Now, lawyers, litigants, law enforcement, state agencies, reporters and others can obtain up-to-the-minute court news and information on their cell phones as well as online.

“Our court users rely heavily on social media to stay informed and connected.  We are responding to their expectations for timely information that maximizes the convenience of the Internet and of cell phones and other devices,” said Judge Glenn A. Grant, acting administrative director of the courts.

Court users can sign up for breaking news alerts via short message service (SMS) text alerts on their cell phones.  Users sign up for the service through a link on the Judiciary home page, njcourts.com.  The text messages will announce unscheduled court closings and other high priority information so that users who are not in the office or at home in front of their computers will receive the information in real time on their cell phones.  The Judiciary also has begun using Twitter to send short “tweets” about breaking court news.  To sign up for either of these options, users can click on the SMS or Twitter links on the Judiciary home page.  Those links will take them to the appropriate Web sites to sign up for those services.

What is the judiciary up to, trying to communicate in real time? If you’d like to tweet with the New Jersey judiciary, try http://twitter.com/njcourts.

That’s what I think. Please leave a comment and let us know what you think.