Little Jerry Was Born To Cockfight: 4th Circuit Finds Juror Wikipedia Research Invalidated Cockfighting Conviction

A defendant and co-defendants are convicted of violating, and conspiring to violate, the animal fighting prohibition of the Animal Welfare Act, 7 U.S.C. § 2156(a), resulting from their participation in "gamefowl derbies," otherwise known as "cockfighting." the Act prohibits, among other things, "sponsor[ing] or exhibit[ing] an animal in an animal fighting venture." If a juror looks up the word "sponsor" on Wikipedia, prints out the relevant page, and brings the page to the jury deliberation room, is there a rebuttable presumption of prejudice? According to the recent opinion of the Fourth Circuit in United States v. Lawson, 2012 WL 1372172 (4th Cir. 2012), the answer is "yes."

In Lawson, the facts were as stated above. The Fourth Circuit found that the issue was governed by Remmer v. United States, 347 U.S. 227 (1954), 

the Supreme Court held that a rebuttable presumption of prejudice arose from a third party's unauthorized communication with a juror during the trial....In announcing this rule, the Court stated that "any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial."...However, the Court cautioned that this "presumption of prejudice" did not establish a per se requirement of a new trial....The Court stated that "[t]he presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant."

According to the court, several circuits have abandoned this Remmer presumption, such as the  Fifth, Sixth, Eighth, and District of Columbia Circuits. But the court noted that it continues to apply the presumption to external influences on jurors, along with the Second, Seventh, Ninth, Tenth, and Eleventh Circuits.

Of course, that left the question of whether the Remmer presumption applies to a juror's use of a dictionary definition during deliberations, and the Fourth Circuit noted "that our sister circuits also are divided on this question." The Fourth Circuit, however, 

conclude[d] this presumption likewise is applicable when a juror uses a dictionary or similar resource to research the definition of a material word or term at issue in a pending case. In reaching this conclusion, we observe that many of the concerns that arise when a juror discusses a case with a third party...are likewise concerns inherent in a juror's unauthorized use of a dictionary during jury deliberations. In both instances, a defendant's Sixth Amendment right to a fair trial is at issue, and the sanctity of the jury and its deliberations have been threatened. In both instances, an extrinsic influence has been injected into the trial, the content of which is beyond the trial court's ability to control. And, in both instances, the procedural and substantive protections that the law affords to the judicial process are limited.

This left the question of whether the government rebutted the presumption of prejudice, and the Fourth Circuit considered five factors in resolving that issue:

(1) The importance of the word or phrase being defined to the resolution of the case.

(2) The extent to which the dictionary definition differs from the jury instructions or from the proper legal definition.

(3) The extent to which the jury discussed and emphasized the definition.

(4) The strength of the evidence and whether the jury had difficulty reaching a verdict prior to introduction of the dictionary definition.

(5) Any other factors that relate to a determination of prejudice.

Briefly, here is what the court found on each factor:

First

"Juror 177 used Wikipedia to research the term 'sponsor,' which is an element of the animal fighting offenses for which Lawson was on trial....Indeed, the district court agreed that the term 'sponsor' was important to the case for this reason."

Second

"As the district court recognized, 'definitions on Wikipedia are subject to change by users, and the definition at issue (of 'sponsor') had, according to Court's Ex. 1, been changed between the time Juror 177 consulted this external source and when he repeated the same steps to produce Court's Ex. 1.' Accordingly, the district court properly 'assume[d] that the definition of ‘sponsor’ shown in Court's Ex. 1 is different in at least some respects from what Juror 177 obtained and consulted during deliberations.'...

Thus, it is apparent that Juror 177's use of Wikipedia, under the circumstances of this case, makes meaningful analysis of the second...factor impossible. Accordingly, because the Remmer rebuttable presumption places the evidentiary burden on the government, we must conclude that this factor weighs in favor of Lawson."

Third

"The district court noted from Juror 177's testimony that he gave little emphasis to the definition in deciding the case." But, the court also noted "that several other material aspects of Juror 177's testimony were contradicted by the testimony of the other members of the jury. Therefore, in view of the government's burden, we conclude with regard to the third...factor that the extent to which Juror 177 was influenced by Wikipedia remains uncertain."

Fourth 

The court found that "we cannot say that the jury had difficulty reaching a verdict prior to Juror 177's improper research." 

Fifth

"Given the open-access nature of Wikipedia, the danger in relying on a Wikipedia entry is obvious and real. As the 'About Wikipedia' material aptly observes, '[a]llowing anyone to edit Wikipedia means that it is more easily vandalized or susceptible to unchecked information.'...Further, Wikipedia aptly recognizes that it 'is written largely by amateurs.'"

After considering all of these factors, the Fourth Circuit "conclude[d] as a matter of law that the government...failed to rebut the Remmer presumption of prejudice."

-CM