JSH Reporter Summer 2016 - Page 9

SOCIALMEDIARESEARCHARTICLE 009 SOCIAL MEDIA RESEARCH AFTER VOIR DIRE – THE JODI ARIAS CASE AUTHOR: Patrick C. Gorman EMAIL: pgorman@jshfirm.com BIO: jshfirm.com/patrickcgorman Forward-thinking attorneys are utilizing social media websites such as Facebook, Twitter, Instagram, and LinkedIn to perform preliminary jury research during voir dire, but what happens after the jury is empanelled? Courts have already held that parties are expected to perform internet research before the jury is selected, but it is unclear if the parties are expected, or even allowed, to continue jury research after voir dire. In U.S. v. Countrywide Financial Corporation, et. al., No. 12 Civ. 1422(JSR). (S.D.N.Y. 2012), for instance, the court admonished an attorney for “improper conduct” where he inadvertently viewed a juror’s LinkedIn profile after the jury was empanelled. The failure to perform social media research can carry serious consequences. For example, in U.S. v. Daugerdas, 867 F.Supp.2d 445 (S.D.N.Y 2012), one of the largest tax fraud prosecutions in United States history, the court determined that attorneys who knew about a juror’s misconduct, but failed to report it until after the verdict was final, waived their client’s Sixth Amendment right to a fair trial. More recently, in State of Arizona v. Jodi Ann Arias, one of the most high profile murder cases in recent years, the court faced the dilemma of what to do when a juror utilized social media to express a view during the case, even though jurors were specifically instructed not to view outside media during trial. Case Study – Jodi Arias Jodi Arias was convicted of first-degree murder on May 8, 2013. Following the conviction, jurors were tasked with determining whether Ms. Arias would be sentenced to death or spend the rest of her natural life in prison. After the first sentencing phase resulted in a hung jury, the sentencing phase was set for retrial in late 2014. During the retrial on sentencing, jurors were asked if they had “read, seen or heard anything about the case in the media.” After multiple months of testimony, the jury received the sentencing portion of the case for deliberation on February 25, 2015. According to reports revealed after the verdict was rendered, now infamous Juror 17 immediately made known that she was not in favor of giving Ms. Arias the death penalty. After several days of deliberations, the jury remained deadlocked 111, with Juror 17 the only person against the death penalty. Prosecutors filed a motion to have Juror 17 removed from the jury panel, telling the court that her Facebook page showed she recently viewed the movie Dirty Little Secret, the made-for-television movie regarding the Arias case, and “liked” a list of local and national media sites known for covering the trial, including Nancy Grace from the Headline News Network. When questioned, Juror 17 told the court that she watched Dirty Little Secret before becoming a juror and, contrary to her Facebook page, she had not done any research related to the case or read or saw anything about the trial in the media. Despite the information on Juror 17’s Facebook page, the court denied the motion to remove her. After additional deliberations, the jury returned deadlocked 11-1 on whether to give Ms. Arias the death penalty, with Juror 17 as the lone holdout. Consequently, Ms. Arias was sentenced to natural life in prison. Practical Considerations Social media research after the jury is empanelled can be equally as important as the social media research during voir dire. Valuable information can be learned which may help in seeking removal of an unfavorable juror. Before conducting this research, counsel should ensure that the court will allow the parties to continue their jury research after it is empanelled. If new information is discovered about a juror, it is essential to let the court know about the information immediately. Failure to inform the court can have adverse results for the attorney and client, including a waiver of the ability to make arguments to strike the juror. ABOUT THE AUTHOR PATRICK GORMAN Patrick practices in bad faith, insurance coverage, and professional liability. He has served in a variety of capacities for the DRI Young Lawyers Subcommittee, including currently serving as the Vice Chair of Marketing. He is also active in the Papago Men’s Golf Association. Contact Patrick at 602.263.1761 or pgorman@jshfirm.com