THE INTERNET V. THE COURTS
ATLANTA, Feb 17 (Reuters Legal) - When picking a jury, lawyers always try to stack the panel with people likely to take their side. Now, some are taking the vetting process to a new level: they're quietly trawling social networks and other sites to ferret out the most intimate details of potential jurors' lives, from their sexual orientation to their income level and politics.
In essence, the traditional question-and-answer session known as "voir dire" is being transformed into "voir Google," sparking concerns about privacy and about whether courts are adequately supervising the process.
Often hidden from judicial scrutiny and unknown to the jurors' themselves, lawyers conduct extensive online searches about dozens of members of a prospective pool and compile them into elaborate spreadsheets. Some of this plays out in courtrooms in real time, as lawyers and jury consultants, armed with laptops and smart-phones, seek clues about whether a would-be juror would side with a homeowner in a product-liability case, say, or with a cop in a police-brutality suit.
"Jurors are like icebergs -- only 10 percent of them is what you see in court," said Dallas-based jury consultant Jason Bloom. "But you go online and sometimes you can see the rest of the juror iceberg that's below the water line."
In Columbia, Missouri, criminal-defense attorney Jennifer Bukowsky builds Excel spreadsheets about prospective jurors using Facebook, MySpace, Google and a state database of civil and criminal actions called Case.net. During a trial in Circuit Court for Boone County, Missouri, late last year in which her client, a black male, was charged with sexual assault, Bukowsky hoped to keep a white female juror on the panel because the woman's Facebook page included several pictures of her with a black man -- which Bukowsky took as a sign the woman was not racist. "Internet research affected our decision with respect to whether to keep or strike a juror," Bukowsky said. The prosecution struck the woman from the jury pool, and the trial ended in a hung jury.
ERIN BROCKOVICH FAN
Trial consultant Jill Huntley Taylor said that during a product-liability case last year in which her client was representing the defendant, she discovered through online vetting that a juror had posted on Facebook that one of her heroes was Erin Brockovich, the crusading paralegal known for her work for plaintiffs in environmental cases. Taylor, of Dispute Dynamics in Philadelphia, declined to disclose more details about the case, but said her research helped attorneys in the case decide to remove the juror from the panel.
The purpose of voir dire -- derived from an Anglo-Norman phrase meaning "to speak the truth" -- is to help ensure a fair and impartial tribunal. But the process has its limits. Jury questionnaires, which are typically distributed to the lawyers in most jurisdictions at the onset of jury selection, often contain only superficial information, such as name, age, and marital status. Moreover, there are restrictions on the questions attorneys can ask prospective jurors, reflecting in part a growing concern within the courts over protecting jurors' privacy. Some courts do not allow lawyers to ask about a prospective juror's political affiliations, for example. Online vetting, therefore, can serve as a way to bypass court-imposed restrictions on voir dire.
To be sure, lawyers, not to mention an entire industry of jury consultants, have long tried to devise psychological profiles of jurors in order to gain an edge -- using private investigators to scan public records or to drive by jurors' homes to see how affluent they may be. But in an era in which people are revealing their unvarnished selves on Facebook and other sites, online vetting can serve as an invaluable reality check on jurors who may not be completely forthcoming during voir dire.
'THE WILD WEST'
While interviews suggest that Internet vetting of jurors is catching on in courtrooms across the nation, lawyers are skittish about discussing the practice, in part because court rules on the subject are murky or nonexistent in most jurisdictions. Ten law firms and five jury consultants declined requests from Reuters Legal to observe them building juror profiles, many saying they weren't sure judges would approve. "Lawyers don't know the rules yet," said John Nadolenco, a partner at Mayer Brown in Los Angeles. "It's like the Wild West."
One law firm that was open about its online vetting of jurors is the Wooten Law Firm in Auburn, Alabama. Earlier this month, plaintiffs' lawyer Nick Wooten allowed Reuters Legal to watch as he and his team combed through a roster of 280 citizens who comprise the jury pool for two of Wooten's upcoming cases in Circuit Court in rural Chambers County. One client is suing an insurance company that allegedly declined to replace a roof damaged in a storm; the other is suing a gas company over a gas log heating system that allegedly sparked a fire.
After the jury list was culled by eliminating former Wooten clients and others who would be knocked out of the pool anyway, a paralegal began assembling profiles based on each would-be juror's online persona. The paralegal scanned Facebook, MySpace and Twitter, and used Google searches to find jurors' names on the websites of government agencies, school boards, local companies, and sites that contain property records. Links to each site were assembled in a spreadsheet.
The online review quickly produced useful insights for Wooten to take to voir dire. For example, the Facebook page of Juror 115 contained, in Wooten's estimation, both positive indicators and red flags. Wooten was pleased to discover that the 32-year-old white male is Facebook friends with three people from Wooten's high school class and with one of his clients. Also, the juror "likes" the Chambers County Sheriff's Department; one of Wooten's grandfathers was a police officer in the area. "We have a lot in common," Wooten said.
On the other hand, the online review found that the man is the owner of two small businesses, his favorite book is the Bible, and his Facebook account links to the websites of Republican politicians Newt Gingrich and Sarah Palin. These indications that the man is conservative troubled Wooten because it could mean he's inclined to consider lawsuits against companies to be frivolous. "The information is at least enough to guide my questions on what I have to pull out of this cat," Wooten said. "This helps me make the ultimate decision: Can he stay on the jury or does he have to go?"
Lawyers for food company Conagra used online jury vetting to great effect in a product-liability case last year. The plaintiff, Elaine Khoury, claimed she contracted a rare lung disease from preparing and consuming large amounts of microwave popcorn containing the chemical diacetyl, which is made by Conagra. After the jury was sworn in Circuit Court for Jackson County, Missouri, a ConAgra lawyer discovered that one juror's Facebook page linked to numerous websites that are highly critical of big corporations and to a petition to boycott oil giant BP.
According to the transcript, the juror, 24-year-old University of Missouri-Kansas City student Jonathan Piedimonte, also was found to have a personal blog -- called "The Insane Citizen: Ramblings of a Political Madman." The blog consists of poetry and short essays, and included statements such as "F--- McDonald's. I hate your commercials. I'm not 'lovin' it.'"
ConAgra's lawyer Jerry Blackwell, a partner at Blackwell Burke in Minneapolis, argued that Piedimonte should be removed from the jury because he had hidden his antibusiness sentiments during jury selection, and the judge agreed. "I'm going to err on the side of anybody that stinks at all of prejudice is not going to sit on the damn jury," Judge Jack Grate said, according to a transcript. In August, the jury ruled nine-to-three in favor of Conagra.
Blackwell told Reuters Legal he believes that if Piedimonte had remained on the jury, the outcome might have been different because Piedimonte could have influenced other jurors. The plaintiff's attorney, Kenneth McClain, said he plans to appeal, in part because he believes Piedimonte should not have been removed once he was seated. Piedimonte, for his part, said in an interview that while he understands why ConAgra's lawyers viewed his online activities as evidence of bias, he doesn't believe they should have been taken so seriously. "This is the Internet," he said. "It's a different realm. It's like a playground."
LEVEL PLAYING FIELD?
The federal courts so far have not addressed the issue of online vetting of jurors, and just two states, Missouri and New Jersey, have said it's acceptable in some forms. But judges and lawyers, even in those states, still seem to be grappling with the practice.
In May 2009, attorney Mitchell Makowicz represented Joseph Carino in a medical malpractice lawsuit in New Jersey Superior Court against Dr. Christopher Muenzen, alleging that the doctor's improper diagnosis of a brain hemorrhage caused the death of Carino's wife. During jury selection, Makowicz used his laptop in the courtroom to check out jurors online.
A transcript reviewed by Reuters Legal shows Superior Court Judge David Rand was surprised and annoyed by Makowicz's online research.
"Are you Googling these [prospective jurors]?" said Rand. "Your Honor, there's no code law that says I'm not allowed to do that," responded Makowicz.
"Is that what you're doing?" said Rand.
"I'm getting information on jurors. We've done it all the time, everyone does it," said Makowicz. "No, no, here is the rule. The rule is it's my courtroom and I control it," responded Rand.
Judge Rand then barred Makowicz from Googling jurors, citing the fact that defense attorneys in the case had not brought their own laptops to court. Makowicz's use of the Internet, the judge ruled, provided "an inherent advantage regarding the jury selection process." The jury went on to rule unanimously in favor of Dr. Muenzen, and the decision was upheld by a state appellate court.
At the same time, though, the appellate judges held that the trial judge had improperly prohibited Makowicz's online research. "The 'playing field' was, in fact, already 'level,'" the court ruled, "because Internet access was open to both counsel -- even if only one of them chose to utilize it."
(Reporting by Brian Grow of Reuters Legal; research assistance by Leah Hauge of Westlaw)