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Social media use by jurors a worry for attorneys, judges in Arkansas 

Thanks, in part, to recent social-media-fueled mistrial.

Given that the vast majority of people are carrying around a little gadget in their pocket with all the information in the Library of Congress inside of it — plus instant connection to dozens or hundreds of their friends through social media — it's amazing that more jurors don't succumb to the same electronic temptation that recently helped win a convicted kidnapper a new trial in Pulaski County.

Quinton Riley Jr., 26, was convicted in December 2013 of kidnapping by a Pulaski County jury after a two-day trial before Circuit Judge Herbert Wright. On May 14, 2012, a 20-year-old woman told investigators, Riley had offered her a ride on Wright Avenue in Little Rock. Once she was in his car, the woman told police, Riley had shown her a gun before forcing her to strip, then duct-taped her hands, mouth and eyes and raped her repeatedly before stashing her, still bound hand and foot, in a North Little Rock shed. The woman told police she was able to break the duct tape and escape from the shed, seeking help at a nearby house.

Riley was acquitted of rape at the December trial, but was convicted of one count of kidnapping, and sentenced to life in prison.

Riley will get another trial on June 24, however, because a juror in the case was posting to social media during the original trial. Brittany Lewis, who was seated as Juror No. 1 in the case, made several Facebook posts while the case was being heard, including posts in which she said, "We can't come to a decision. Ugh FML," and "Still in this courtroom. Lord I'm ready to go home. I'm sleepy and tired and my red wine is calling my name." In another Facebook post, shared after the verdict, Lewis said, in part: "After being a juror on a serious trial I just want to let all of the young women know to be careful of the company you keep ... I can't speak on the case at all but I want to let all the young men on my timeline know that what u talk about on the phone while in jail will bite you in the ass in court. We sentenced a man to life without parole today in front of his Mama."

Riley's attorney, Bobby R. Digby, learned of the posts and filed a motion for a new trial on Dec. 16. On Dec. 31, Judge Herbert Wright granted that motion, writing in his order that jurors are told multiple times during trials in his court to not only do justice, but to "give the appearance of doing justice."

"By posting her thoughts to Facebook," Judge Wright wrote, "Lewis disregarded and violated the court's clear order. ... The law presumes that all jurors are unbiased in following the court's instructions. In this case, Lewis' conduct has overcome that presumption. While the Court acknowledges that the defendant is entitled to a fair trial and not a perfect trial, in this case the Defendant received neither."

Wright is considering whether to hold Lewis in contempt for her actions. She had a hearing before Wright on Jan. 14. Another is scheduled for Feb. 24.

Jurors' use and abuse of social media is a growing concern all over the country, and it's not the first time an errant post has thrown a digital monkey wrench in the gears of Arkansas justice. In December 2011, citing a juror's posts to Twitter during trial, the Arkansas Supreme Court threw out the 2010 conviction of death row inmate Erickson Dimas-Martinez, who had been convicted of the 2006 robbery and murder of a Washington County teenager. After Dimas-Martinez was convicted and sentenced to death, it was found that a juror in the case had posted to Twitter, including: "Choices to be made. Hearts to be broken. We each define the great line." In another Tweet, the juror posted "It's over" an hour before the jury notified the court that they had reached a verdict. The Dimas-Martinez case was cited by both sides during arguments for and against a new trial for Quinton Riley Jr.

The issue is not limited to criminal cases, either. In March 2009 in Washington County, a $12.6 million civil verdict against building material company Stoam Holdings was challenged after it was found that during the trial a juror had posted several times to Twitter, including posts that read: "oh, and nobody buy Stoam. It's bad mojo and they'll probably cease to Exist now that their wallet is 12m lighter," "So Jonathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else's money," and "And the verdict is... Penguin Eds can not make fries." A judge dismissed a motion by Stoam attorneys that sought to throw out the verdict because of the Tweets.

Digby, the Little Rock attorney who represented Riley, said Lewis' posts came to light after his client's sister's friend, who was a friend of Lewis on Facebook, reported that Lewis had been talking about her involvement in the case on social media.

While a cranky Facebook or Twitter post about a juror being tired might not seem prejudiced one way or the other, Digby said any social media post by a juror sends the wrong impression. "It's not only important, I think, for people to have confidence that a jury [will] act fairly and do justice, it's important that they appear to be fair and do justice," he said. "If not, people lose faith in the system. Because of the nature of social media, it's ripe for abuse. ... The legal standard is not whether prejudice occurred, but whether there's a reasonable possibility of prejudice." To ensure that everybody gets a fair trial, Digby said, it's important to minimize the chances that a juror might be — or appear to be — prejudiced.

"I think the Court of Appeals and the people who make the rules of criminal procedure are wondering how to deal with it," Digby said. "It's not like it was even 10 years ago. Ten years ago, nobody had even heard of Facebook. I don't even know if we were texting 10 years ago. I think the Court of Appeals and the judges are struggling with that. You don't want to take peoples' right to a phone away, but it's a problem."

Not speaking specifically about the Riley case, Pulaski County Chief Deputy Prosecutor John Johnson said that while the "rubber meets the road issue" is that jurors should follow the instructions of the court, he tends to worry about cell phone use by jurors in general. That said, he questions the idea that any post by a juror to social media should automatically be seen as evidence of bias against the defendant in a case.

"I don't know that just because one is on Twitter or Facebook that there's always prejudice to the defendant," he said. "And it makes you wonder: Does all disregarding of the judge's instructions automatically result in prejudice to the defendant? You should follow the court's instructions, of course, but it seems like there could be an innocuous or inadvertent failure to follow the court's instruction that would not result in prejudice to the defendant."

Pulaski County Circuit Judge Wendell Griffen said that while jurors posting to or reading social media is a threat to the administration of justice, he doesn't like the idea of taking away jurors' phones as a precaution. "My experience and the experience of most judges is, most jurors are going to work extra hard to follow the instructions," Griffen said. "The juror who goes up on social media is the exception, not the rule."

Griffen, who gives lengthy instructions to juries about avoiding social media before and during trials in his courtroom, called social media an invasion of the courtroom process and a violation of the integrity of the trial. The problem of social media, Griffen said, is twofold. First, social media can expose jurors to information that wasn't heard inside the courtroom. Second, social media postings transmitted by a juror can be seen as a kind of deliberation, before all the proof in the case has been presented. Jurors are forbidden from any form of deliberation until the case has been handed over to them.

"When a juror engages in social media postings, they are, by definition, sharing insights and ideas about the case," Griffen said. "They are thinking about it. They are deliberating in a real sense, without giving both sides a chance to have all the proof in, and they are deliberating without giving all the other jurors a chance to respond to and challenge any misconceptions or misimpressions. There's a fundamental injustice that happens whenever jurors are social media posting, whether it's Facebook, on Twitter, Instagraming, email or anything else."

But Griffen believes that the idea of asking jurors to give up their phones during trials would be pointless. The temptation — Facebook, Twitter, plus all the information they could find on their smartphone while court is in session — will still be there after court adjourns.

"At some point, we're going to have to deal with the issue of trust," Griffen said. "The same information that is in the world during the time the juror is in the courthouse is accessible to the juror at their fingertips as soon as the juror steps out of the courthouse. If a juror cannot be trusted, then we respond to that. But I think it would be unfair to assume that jurors are, by definition, unable to resist the temptation."

Deputy Prosecutor Johnson said the danger of a juror gathering outside information that might prejudice them existed long before the Internet. Still, he believes the time may be approaching when it just makes sense to ask jurors to surrender their phones during trials. "You hate to do it," Johnson said, "but when the risk is that you've got to drag a victim back into court and have him or her go through the whole situation again, or — if it's a homicide case — to have the family relive it, simply because one couldn't keep themselves from getting on social media, then that's what I would want, rather than risk that. And you certainly want the defendant to have a fair trial. If social media renders the defendant incapable of getting a fair trial, then that's just as valid a reason."

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