Monday, March 16, 2009

Will trial by judge and jury ever be the same?

Truth To Power

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Your readers may find this article interesting.
Dear Public Eye:

Thank you so very much for the fascinating article. It really brings into question whether trials by judge and jury in Canada, or elsewhere for that matter, will ever be the same.

The Public Eye is a Canadian lawyer who anonymously hosts one of our favourite Blogs, Truth To Power (


Clare L. Pieuk


Fumo: Juror Discussing Case On Facebook, Twitter
By MaryClaire Dale
Associated Press Writer
March 3, 2009

PHILADELPHIA - A juror deliberating corruption charges against former Senator Vincent Fumo discussed the case on the Facebook and Twitter social networking websites and even promised a "big announcement" Monday, the defense said in an emergency motion it filed.

Sunday's filing raises the specter of a potential mistrial in the nearly five-month-long trial, whose jury was set to start its sixth day of deliberations Monday.

Fumo, a long-powerful Philadelphia Democrat, is charged with defrauding the Senate, a charity and a museum of $3.5 million and with destroying evidence. He left the Senate last year after 30 years.

According to the defense motion, the juror posted a Facebook message Friday forecasting a "big announcement" and sent out a Twitter message, or tweet, that said, "This is it ... no looking back now!" It said the juror had posted messages days earlier hinting at the progress being made in deliberations.

The messages ranged from the ho-hum "Day 1 has come to a close" to the excited "Today was much better than expected and tomorrow looks promising too!" according to the motion.

Fumo's defense lawyers asked U.S. District Judge Ronald L. Buckwalter to question and probably remove one or more jurors. They may ultimately seek a mistrial, lawyer Peter Goldberger said late Sunday.

"I think it's going to depend on what the judge finds out when he questions the juror," said Goldberger, who is handling appellate issues in the case. "I can't believe something is happening this crazy that we've never thought about before."

Assistant U.S. Attorney John Pease declined comment on the issue Sunday night.

The juror was not identified but describes himself or herself on Facebook as someone with a strong interest in blogs. The trial references were found on public portions of the Facebook page, Goldberger said. The juror has 93 friends on the public Facebook page and five people who follow his or her Twitter tweets, the defense said.

Some of those contacts may have shared their own thoughts on the case with the juror, which seemingly would violate the court's ban on outside communications.

If so, "there's a presumption that the process has been tainted, and the government would have the burden to prove otherwise," Goldberger said.

The trial, which opened October 22, already has been delayed several times, once when Fumo changed lawyers several years into the case and again last fall when the original trial judge became ill just before opening arguments and statements.

Fumo is charged in 137 counts, and co-defendant Ruth Arnao, who ran his nonprofit, is charged in 45 counts. They've denied the charges against them.

Jurors come from across eastern Pennsylvania and seem to have become close-knit over the months. There are 10 women and two men on the panel, and three alternates are waiting at home if needed. The jurors would have to start deliberation anew if one is replaced.

According to Goldberger, there is little case law on the issue of a juror posting messages on social networking sites during deliberations.

In Arkansas last week, a building materials company and its owner appealed a $12.6 million verdict against them, alleging that during the trial a juror posted Twitter messages that showed bias, Juror Johnathan Powell, of Fayetteville, told the Associated Press that the Juror Johnathan Powell, of Fayetteville, told The associate Press that the complaints were "grasping at straws" to try to undo the award.


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