Social Media Crashes The Courtroom

Social media tools are changing courtrooms across the country. Jurors Tweet during trials, lawyers blog and judges face calls for mistrials. Judge Gary Randall of the District Court of Douglas County, NV and attorney Michael Downey discuss social media in courtrooms.

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NEAL CONAN, host:

This is TALK OF THE NATION. I'm Neal Conan in Washington.

Millions of us show up in courthouses across the country every day to perform our civic duty as jurors and when we walk into the courtroom, our cell phones, Blackberries and iPhones come with us. No big deal, you might say. But plenty of jurors and attorneys and friends of the accused and, of course, reporters have a hard time breaking now deeply out ingrained habits. We snap pictures of the judge, find out how Wikipedia defines fraud, and tweet the latest developments. One juror in Arkansas landed in hot water this spring for tweeting during a trial. One of them: I just gave away $12 million of someone else's money. Many judges now routinely warn jurors to resist the urge to Google their cases.

And a Fort Lauderdale attorney was fined this spring for his unflattering blog post about a judge. Well, if you're a lawyer or a judge, how do you see social media transforming the courtroom? Jurors, have you been tempted to Google or blog about your case?

Tell us your story, 800-989-8255 is the phone number. Our email address is talk@npr.org. And if you're on Twitter, you can reach it at TOTN.

Later in the program, the documentary from the book, from the blog, "No Impact Man."

But first, social media in the courtroom. And we begin with Judge Gary Randall, who is with the District Court of Douglas County, Nebraska. And he joins us from Warehouse Studios in Omaha. Thanks very much for being with us today.

Judge GARY RANDALL (District Court of Douglas County, Nebraska): Thank you, Neal.

CONAN: And judge, when did you first see problems with social media in your courtroom?

Judge RANDALL: Most of it's happened in the last year. We've, in picking juries recently, we've determined that jurors have had access and been posting information on Facebook. If it's a high media or high profile trial, they've been getting responses from their friends saying, maybe you're going to be on so and so's case.

CONAN: Ah-ha.

Judge RANDALL: And it's been causing us to become very aware of what we need to do to try to guarantee a fair trial.

CONAN: Well, a simple solution, a lot of people would say, is why don't you ban computers and cell phones from the courtroom?

Judge RANDALL: Well, certainly we need to - to advise jurors of the prohibitions with regard to using them. And many courts are banning them. But there's a bigger problem, Neal. The bigger problem is that in this country we have a huge problem of getting people to even participate in jury service. People frequently say it's just way too inconvenient and go for getting a warrant issued for their arrest. We need to acknowledge that this is a way of thought for many generations that are - that are now jurors, the Generation X-ers, the generation Y-ers.

And if they aren't allowed to have access to personal media, they're going to lose - they're going to lose so much in terms of their convenience, their ability to operate all day long, their ability to - to have a life outside of that courtroom, because being a juror is a temporary thing. Do we need to approach it in another way?

CONAN: But nevertheless, you can get a high profile case. For example, I know that there's a former University of Nebraska football player who is on trial there. And well, if somebody is on that jury, they're going to be surely tempted to - to post on Facebook or Twitter or somewhere else.

Judge RANDALL: There's no question about that. But what we have to do is to make sure that we educate the jurors well enough through our orientation processes, through voir dire. The lawyers have a part in this too, explaining to people that, you know, if you do have Twitter accounts, if you do use Facebook, if you do have a Blackberry, there's - there's a right way and a wrong way to use this, because it's all about the fair trial, it's about guaranteeing the rights of the defendant. It's about making sure that the jurors do follow the rules, and I think if they're properly educated, we can rely on them to - to go ahead and abide by the oath that they're taking.

CONAN: What about camera phones? Have they presented any difficulties?

Judge RANDALL: They really have, particularly, again, high profile cases, gang cases, what we find in Nebraska, we've had the problem, and throughout the country I've noted the problem of people trying to take pictures in the courtroom of witnesses, of jurors, to pass on to others for, you know, you have to guess what the reason might really be…

CONAN: Oh, let me guess - intimidation.

Judge RANDALL: There you go.

CONAN: So that they then can identify the person who is testifying against a gang member or the members of the jury who might be pressured to vote one way or the other.

Judge RANDALL: That's right, and then the immediate reaction, of course, from the bench is to say, okay, we're going to ban all that technology from courtrooms. We're not going to let people take it in. Well, you have to identify what the uses are. Now, with regard to the public, they are told when they come in the courtroom - first of all, they aren't supposed to have a cell phone. If they do, cell phone has been confiscated, at least in Douglas County. In some jurisdictions they take them as the public enters the courthouse and they put them into lockers and then give them back on the way out.

CONAN: Let's get some callers in on the conversation, 800-989-8255. Email talk@npr.org. Our guest, Judge Gary Randall. If you're a judge, if you're an attorney, how has this affected cases that you've involved with? If you've been on a jury, has it affected such a case?

Let's start with Constantine. Constantine with us from Boston.

CONSTANTINE (Caller): Hello, thanks for having my call.

CONAN: Sure, go ahead please.

CONSTANTINE: I was foreman of a jury where - where when the case came to us one member of the jury argued very heavily against, you know, against the defendant in a way that none of the rest of us did. Eventually the vote was taken and it went in the defendant's favor. And the person who had been arguing against the defendant admitted she had - she had Googled the person and found out some things. As it went that way, I didn't feel really necessary to tell the judge, probably should have, but you know, I - it seems to me that I don't know how we're going to get it across to people's heads, that you're only supposed to evaluate the evidence you're handed, not the entire, you know, not every other scrap of information you can get.

CONAN: So the defendant may - I'm just speculating here - may have been for some reason or another involved in something else nefarious that for various reasons may not have been presented to you in that trial. She knew about it, but you guys didn't.

CONSTANTINE: Yeah. And it was, I mean it was a civil trial. He had done - he had had similar suits before, you know, could not have been less germane to what - what I was doing. Well, you know, obviously it was germane that the judge - the lawyers would have brought it up, but - and so, I mean, and the other point is I don't think, in Massachusetts anyway, we have a one day or one trial system for jury duty, which I just love and I'm a big fan of it. And - but I meet friends from other states and they - you know, jury duty takes forever for them. And I can understand why they're - why they don't want to do it.

CONAN: I understand. Judge Randall, that case of the juror Googling the defendant in the - in deliberations. That's got to be a nightmare.

Judge RANDALL: It's a total nightmare. It's exactly the problem that we're all talking about. I mean what happened is that jury then considered information that the judge probably excluded from the trial. You can guess that the plaintiff's attorneys from that case probably wanted to bring that in and they had motions in limine before the case started because what the defended had done outside of the parameters of that lawsuit isn't relevant to the circumstances of the jury making a decision in this case.

CONAN: And the juror…

Judge RANDALL: So that really - that really was a travesty of justice.

CONAN: All right. Constantine, thanks very much for the call.

CONSTANTINE: Thank you.

CONAN: Bye-bye.

CONSTANTINE: Bye.

CONAN: Joining us now by phone is Michael Downey, an attorney specializing in legal ethics at Hinshaw & Culbertson in St. Louis, where he trains law firms and attorneys to avoid social and media pitfalls. He's with us on the line from Warrensburg, Missouri. Nice to have you on the program today.

Mr. MICHAEL DOWNEY (Partner, Hinshaw & Culbertson): Thank you.

CONAN: And there have been examples, as we mentioned in the introduction, of attorneys insulting judges online, blogging about witnesses. Some of these examples almost defy common sense. Aren't lawyers worried about the repercussions and don't they understand the judge or somebody else is probably going to go online and find this out?

Mr. DOWNEY: Lawyers certainly should be concerned. In fact, there are ethical rules that govern the practice of lawyers that limit what they can say, particularly about court proceedings. That having been said, we do see a real trend for lawyers to post things and it seems that it's part of the lawyer personality. We do a lot of writing. We do a lot of speaking and a lot of them want to have a forum for their thoughts and they seem to be going online more and more and publishing those thoughts.

CONAN: Is this good publicity? Why?

Mr. DOWNEY: Certainly there is an element to that. Most lawyers are being told they need to establish an online persona. Lawyers have become very large bloggers and tweeters. They're very active on social networks, and part of that is to develop a practice.

Obviously, also there is the side impact that they can jeopardize their clients' confidence or, in fact, as we've seen, jeopardize their own licenses doing so.

CONAN: And we mentioned the case of the attorney who wrote an unflattering portrait of the judge while the case was still being heard.

Mr. DOWNEY: Yes, in fact, that is something that is coming up more and more. In fact, there actually is a Web site that is effectively encouraging litigants and judges to post such comments called therobingroom.com, and I've had numerous occasions to go on here, and you will find people that purport to be lawyers involved in cases who will comment on specific cases and give the case numbers and indicate how they believe the judge handled something improperly.

CONAN: Judge Randall, are you familiar with this?

Judge RANDALL: I am familiar with the Web site, and I'm familiar with the process. I think that the, you know, this has been articulated, you know, very correctly. The lawyers are really jeopardizing their license, and they could be impacting their clients in a real negative way and certainly violating the confidentiality issues there.

That's a particularly big concern, you know, when you hold a license to practice law, you also, just like a juror, take an oath to do certain things in certain ways, and this is a big problem.

CONAN: Michael Downey, are you aware of any lawyer who has lost his or her license as a result of a violation like this?

Mr. DOWNEY: I have actually dealt with lawyers who have faces ethical charges related to online postings. Fortunately, the one that immediately comes to mine is a situation where we successfully defended it, but this person was actually charge with violating the state advertising rules for lawyers by failing to include certain disclaimers on an online post.

CONAN: Well, that's slightly off-subject, so yeah…

Mr. DOWNEY: Yes.

CONAN: But not for saying Judge Schmittlap(ph) is a jerk or something like that.

Mr. DOWNEY: Well, and certainly, I mean, there are numerous instances where lawyers have gotten in trouble. In fact, there's a well-known story of a lawyer who had a blog who is a public defender, I believe, in Illinois, who was posting comments about meetings even with her clients, and there was enough information that if someone really wanted to, the argument was they could trace back and figure out who the client was that she indicated had probably made misrepresentations to the court and then was going to make other misrepresentations to the court.

CONAN: And from Twitter, HappyLeoGirl(ph) tweets: I was just on a jury. I updated on Facebook but not about the case, only about the long wait and only out of the courtroom, and I think, Judge Randall, that's the kind of thing you're talking about.

Judge RANDALL: Well, those kinds of posts probably. I mean, there's probably nothing illegal about. You know, if a juror understands that what they can't talk about is the case, and the only information that they can consider in their verdict is that which they got in the courtroom, not doing outside research, then that juror is being responsible in their use of the technology.

Al Roker recently was twittering his jury service, but what he was twittering was what was in the jury room and waiting to be called up to the courtroom and what the process was about, not about the trial.

I know it's going to make some judges nervous, but again, going back to my point at the beginning, if we educate jurors properly, if they understand why they can't go beyond those limits, then that might be the right way to handle it.

CONAN: Our guests are Judge Gary Randall, who's with the District Court of Douglas County in Nebraska, with us from Omaha, and Michael Downey, who's an attorney with Hinshaw & Culbertson in the firm's legal ethics practice, teaches at Washington University of Law in St. Louis, and he's with us by phone from Warrensburg in Missouri.

If you've been on a jury, how did social media impact, well, what you did in the jury room and in the courtroom? We also want to hear from judges and attorneys, 800-989-8255. Email talk@npr.org. I'm Neal Conan. It's the TALK OF THE NATION from NPR News.

(Soundbite of music)

CONAN: This is TALK OF THE NATION. I'm Neal Conan in Washington. Social Media have invaded the courtroom. In New Jersey, state courts use Twitter and YouTube to keep in touch with the public, but this can be a double-edged sword, with jurors going online during trials, people snapping photos on the sly and lawyers pushing for mistrials because of all the tweeting and Facebook updates.

If you're a lawyer or a judge, how do you see social media tools transforming the courtroom? Jurors, have you been tempted to Google or blog about your case? 800-989-8255 is the phone number. Email us, talk@npr.org, and if you're on Twitter, you can reach us @TOTN.

Our guests are Judge Gary Randall of the District Court of Douglas County in Nebraska and Michael Downey, a lawyer who teaches legal ethics at Washington University School in St. Louis. He served as chair of the American Bar Association's Ethics and Technology Committee, and let's see if we can go next to Brad(ph), Brad with us from Wichita.

BRAD (Caller): Yes, hello, thank you for taking my call.

CONAN: Go ahead.

BRAD: You did cover the first thing that struck my mind, which was there is no way you can allow these devices in a courtroom for jurors when they are only supposed to be looking at the information presented by the legal defense teams. However, you covered that.

Secondly, I think one of the reasons why my generation would run, or sprint, to these devices when selected for jury duty is yes, it is a long process in most states. B, they run to these devices for freedom.

We are not compensated for our time as jurors as well as we should be, and a case in point is a guitar instructor, who is a friend of mine, was selected for jury duty. He does not get an hourly wage. He does not have a payroll from a corporation. So there's really no way for him to prove his worth to the community, and he was compensated $10 for each day that he was unable to, you know, carry on his life of giving guitar lessons for money, you know? And that's normally a rate of $30 an hour.

So he was compensated $10, and he told me he had his cell phone, and if he didn't have it, he probably would have gone insane because he was able to communicate with his university. He's also a graduate student right now in composition. So until jurors are compensated adequately for their time out of work, and I know it's supposed to be a service that we provide to our community, you know…

CONAN: Right, civic duty, yeah.

BRAD: Yeah, for the benefits of being part of this nation. However, you know, they're going to run to these devices for freedom, A. B, they should be banned because there is no way that you can give someone Internet access to the outside world and then expect them to adhere 100 percent to their oath.

CONAN: And it's interesting. We have an email on that same point from Naomi in St. John's, Florida. I was called for jury duty this summer. I never served on a jury, which was a disappointment, but what was more upsetting as a business owner was that I could not have my cell phone with me so that I can stay in touch with my clients.

I fully understand not discussing the case at hand, but it is not my first time for jury duty. The other problem was that I had to reschedule at least two business trips so I could be on call, and then they never actually even called me to serve on a jury.

So Judge Randall, these are problems which are not necessarily within your purview, but they certainly affect your life.

Judge RANDALL: There's no question about that, and you know, the caller makes a good point, as does the person who sent in the email. If you're a sole business owner or self-employed, you know, why at a break in a trial shouldn't you be able to stay in touch with the outside world, as long as you're listening to the case appropriately, as long as you're not, you know, trying to Twitter or Facebook or email during the trial - you know, you're paying attention to the witnesses - and then have only the cell phones taken away from you when you actually are deliberating, you know, once you've started the process of making the decision about the case? Because then you do need to focus only on that.

But I do think taking away these pieces of technology ahead of time, which some courts are doing, I think the more progressive courts are deciding that they just are educating and limiting their use.

CONAN: I wonder, Michael Downey, do some defense attorneys - we've talked about the rules of evidence, and obviously there are strict procedural procedures to what's allowed into - what jurors are allowed to hear and what they're not, but in some instances, are defense attorneys tempted to, you know, boy, I sure hope they Google the case?

Mr. DOWNEY: You know, I think that, again, it's a situation where encouraging jurors to engage in the type of conduct could reflect adversely on the lawyer and the lawyer's license. So I think most lawyers are not going there.

I will say, however, that many lawyers and their clients are very concerned about what sort of information is available and certainly trying to make sure that if anyone looks into a case, that they're able to provide a picture that is complimentary to their client.

CONAN: Okay, let's get another caller in. Kathleen?

Judge RANDALL: Well, and I think…

CONAN: Oh, I'm sorry, go ahead.

Judge RANDALL: Can I make a comment, Neal?

CONAN: Yeah.

Judge RANDALL: I think that something that's occurred that's kind of interesting is that it may not be the lawyers that are doing it, but the parties themselves may be doing it. They may be posting information on blogs, and they're hoping that someone will see it.

CONAN: Ah, to sway the jury, yeah.

Judge RANDALL: Exactly, and the lawyers now have another obligation of due diligence to be checking all of that to make sure that if it's out there, that they've appropriately dealt with it when they get into the courtroom.

CONAN: Kathleen is on the line with us from Chagrin Falls in Ohio.

KATHLEEN: It's Chagrin Falls.

CONAN: Chagrin Falls, okay.

KATHLEEN: That may be hard to believe. I'm a trial lawyer, and one of the things I think that needs to be taken into consideration is, as every trial lawyer and of course every judge knows, a trial is not constant. It's filled with breaks. It's filled with down time, and when an attorney is without a cell phone or the Blackberry so that the attorney can communicate with his or her other clients at the same time that the trial is going on, that's a pretty severe handicap to a law practice.

CONAN: That's - all the trials I've ever been familiar with wind up within the hour, but that's another issue. She's right, Judge Randall. All these cases do - well, there are long breaks, and the jury's out of the room a lot.

KATHLEEN: And many, many cases. I mean, I tried three cases in 2005, and each of them was three weeks long.

Judge RANDALL: I don't think that the courts generally are trying to limit access by the attorneys or even the press, for that matter. The problem is the appearance of not being fair. If you've got security personnel outside the courtroom door making sure that nobody's got a cell phone, then you've got a problem. And I do know that Kathleen is correct. Some courts have said lawyers can't have them, press can't have them. They are not allowed in whatsoever. But again, I think a more progressive view is the attorneys and the press realize that they have to be off. They can't do it while trial's in session. They can only do it when the jury's out of the room, you know…

KATHLEEN: Yes, my other comment - that's very interesting you should raise that. My other comment would be that when an attorney is using a cell phone or a Blackberry in front of the jury, it appears, I think, to disrespect the process.

CONAN: Indeed, and I think, Michael Downey, that's simply a matter of presentation. I'm sure that's being taught in law school now. You don't want to be seen not paying attention.

Mr. DOWNEY: Absolutely. It's certainly something where you're told to really respect the jury and to respect their perspective on you.

CONAN: Kathleen, thanks very much.

KATHLEEN: Thank you for a wonderful show.

CONAN: Okay, bye-bye. Let's go next to Nathan, Nathan with us from San Antonio.

NATHAN: Oh, thanks for taking my call.

CONAN: Sure.

NATHAN: What I'm seeing - I'm a law student here in San Antonio, Texas, and what I'm seeing right now is there's a big generational shift in what's considered private and what's not considered private these days, and a lot of my classmates, we use social networking sites to organize and to work for different causes and form different groups and such, but certain members don't - my generation's just a little more - a little less private, if you will, and certain things get out there online that shouldn't, and eventually we have to go up before the Board of Legal Examiners, before we can be admitted to the bar, and we've been warned repeatedly by our professors and such that we will eventually be investigated, and they will take a look at those sites, and they will ask us about those, and yet a lot of my peers seem to have no conscious regard for this. So I'm not sure what can be done for my generation, but…

CONAN: So Nathan, are you talking about the legal equivalent of having the pictures taken of you at the kegger on your Facebook page?

NATHAN: Pretty much, sir.

CONAN: Yeah, I wonder, Michael Downey, is this becoming an issue?

Mr. DOWNEY: It has certainly become an issue. In fact, there was a Web site that reviewed various law students that ended up having other law students lose job opportunities. They had received offers that were retracted when they found out they were involved with a site that was particularly critical of some of the female students in their class.

CONAN: So Nathan, are people aware that this can affect their future?

NATHAN: We're made aware. A lot of professors will tell us, hey, keep it offline. We're told at the beginning of our 1L year, hey, keep it offline, but I'm not sure if it's actually sinking in.

Judge RANDALL: (Unintelligible)

CONAN: I'm sorry, go ahead.

Judge RANDALL: There's a great example, too, even with practicing lawyers, with judge recently - who had a lawyer requesting a continuance, and the judge happened to go on Facebook and check his page and found out that he really wasn't out of town. He really wasn't at a funeral, which caused some contempt proceedings to then be held later.

CONAN: Nathan, thanks very much for the call, appreciate it.

NATHAN: Thank you, sir.

CONAN: And good luck with your career.

NATHAN: Thank you.

CONAN: Bye-bye. Let's go next to Emily, Emily calling us from Providence.

EMILY (Caller): Hi. I just had an incidence on a medical malpractice trial where the expert witness for the case actually showed up in my - at the time I was single and on a - online dating site. And the medical expert showed up in my online dating site inbox as somebody I should date.

CONAN: Really?

EMILY: Yes.

CONAN: And what did you do?

EMILY: Well, the trial was actually over at that point, which was, you know, it could have very well happened during the trial. But the jurors had actually gotten to know each other a little bit and exchanged email addresses. So then I forwarded the poor guy's personal profile to the other jurors.

(Soundbite of laughter)

CONAN: Judge Randall, what if that had happened during the trial, would she had been obligated to report that to the foreman and then on to the judge?

Judge RANDALL: She actually would have. And we instruct the jurors that if anyone tries to talk to them about the trial or contact them or if they have contact with any of the witnesses or the lawyers that they do need to report it.

CONAN: So any contact even if it's, would you like to go to a movie?

EMILY: But it was the system that actually contacted me. I mean, the poor guy didn't actually do it himself. It was, you know…

CONAN: Oh, it was one of these places that they matched you up.

EMILY: Exactly.

CONAN: Uh-huh. Your profile fit his profile or vice versa.

EMILY: Exactly.

CONAN: Uh-huh. So it was just a coincidence.

EMILY: But still, I mean, it's sort of interesting had it happened a couple of weeks earlier, what that would have, you know, done to our conversation.

CONAN: It's interesting, Judge Randall. In that case, you know, he didn't do anything, she didn't do anything. Nothing ensued. I assume you would just say, oh, well, I guess that's modern life.

Judge RANDALL: Well, that's right. Not all contact is prejudicial. But all contact needs to be reported. And so you can determine whether it's prejudicial or not.

CONAN: Go ahead, Michael. I can hear you trying to get in now.

Mr. DOWNEY: Although the - there's actually an interesting related issue that there has been some activity of lawyers and law firms trying to gain access to people's social networking sites including by claiming they're someone else to try to find out what sort of information is posted there. For example, in a personal injury trial, if you know the plaintiff has a network to try to gain access to see if they show pictures of them doing something they claim they're no longer capable of doing.

CONAN: So that's an investigative tool and not necessarily totally on the up and up.

Mr. DOWNEY: No. In fact, actually, there's an ethics opinion now that states that is not permissible. And there would be proper ways to get the same information, although the other side would, of course, know that, for example, if you subpoenaed them, they'd know that the subpoena was coming.

CONAN: And so, they would then know that you know and that sort of thing, as opposed to finding out sub-rosa.

Mr. DOWNEY: Exactly.

CONAN: Uh-huh. Transparency. Again, transparency, both sides need to abide by that. But sometimes, well, sometimes it all doesn't work.

Michael Downey, thank you very much for your time today.

Mr. DOWNEY: Thank you.

CONAN: Michael Downey is the past chair of the ABA's Ethics and Technology Committee, teaches legal ethics at Washington University Law School in St. Louis, joined us today by phone from Lawrenceburg, Missouri. I should say thank you to Emily, as well, calling us from Providence. Appreciate your time.

EMILY: Thank you.

CONAN: Bye-bye. And of course, Judge Gary Randall of the District Court of Douglas County in Nebraska, chair of the National Council of State Trial. Judge is with us today from Warehouse Studios in Omaha, Nebraska.

Thank you very much for your time today.

Judge RANDALL: Thank you.

CONAN: And you're listening to TALK OF THE NATION, which is coming to you from NPR News.

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