Friday, May 7, 2021

Juror Tweets Raised In En Banc Argument

The United States Court of Appeals for the Fourth Circuit heard oral argument en banc on the impact of a juror's social media on the trial of former West Virginia Supreme Court Justice Allen Loughry. 

The oral argument is a bit hard to hear (at least for me at my advanced age) but it's most definitely worth a listen.

The questioning indicates that the court is struggling with some difficult issues with high profile trials in an era awash in social media. 

The specific issue here is whether the trial court should have held a hearing on the tweet-liking juror. 

MetroNews (W.Va.) reported on the decision to rehear the matter

The saga of Allen Loughry isn’t over after all.

The judges of the U.S. Court of Appeals for the Fourth Circuit ordered today that they will all preside over a re-hearing of the former West Virginia Supreme Court Justice’s appeal. Such a hearing is called en banc, and it means all the judges of a court hear the case.

The case is tentatively scheduled for remote oral arguments on May 3.

The other major happening is that the lawyers have been ordered to provide 15 extra paper copies of their earlier filings.

This is the latest twist in the fraud case of the former justice who authored the book “Don’t Buy Another Vote, I Won’t Pay for a Landslide: The Sordid and Continuing History of Political Corruption in West Virginia.”

Loughry was elected to the state Supreme Court in 2012 and was selected to serve as chief justice in 2017. But after a spending scandal hit, Loughry was arrested by the FBI, impeached by the Legislature, resigned from the court and convicted on fraud charges by a federal jury.

Loughry has already served his federal sentence and was released Dec. 16. But he continues to dispute aspects of his prosecution and trial.

A three-judge panel in late December rejected Loughry’s appeals claim. The judges heard arguments in late October on Loughry’s claim that a juror in his federal fraud case was unduly influenced by social media.

The appeals hearing  focused on whether the district court in Charleston erred by denying an evidentiary hearing based on a juror’s Twitter usage during Loughry’s 2018 criminal trial.

Loughry’s attorneys had asked for that ruling to be reversed and for an evidentiary hearing to examine the matter further. Loughry is represented by Elbert Lin, West Virginia’s former solicitor general.

A jury in late 2018 found Loughry guilty of 11 charges of mail and wire fraud, witness tampering and making a false statement to a federal investigator.

The jury acquitted  Loughry on a count charging him with mail fraud in connection with his removal of a historical Cass Gilbert desk from the Supreme Court building to his home, which had been the subject of extensive media coverage.

U.S. District Judge John Copenhaver later acquitted Loughry on the witness tampering charge.

Loughry’s appeal focused on the social media habits of a particular juror, described as Juror A.

When jurors were selected, they were asked about their familiarity with the allegations against Justice Loughry, which had received heavy coverage, including during an impeachment process at the state Legislature.

At the conclusion of jury selection, Judge Copenhaver issued a blunt warning to stay off social media.

“During the trial you must not conduct any independent research on this case,” Copenhaver instructed. He issued similar daily warnings during the trial.

But after the trial concluded, Loughry’s attorney questioned whether one of the jurors interacted on social media despite the judge’s instructions.

The juror had, in the months prior to the trial, ‘liked’ some tweets relating to Loughry’s troubles.

During the trial period, she had ‘liked’ some tweets related to football, but none referring to any facts about the case or the broader scandal.

However, the juror was following two reporters who tweeted about the trial. That raised the question about whether even inadvertent exposure had contributed to bias.

Loughry’s appeal contended that given the volume of news tweets during the trial, once logging on Juror A almost certainly would have seen some.

Judge Copenhaver concluded otherwise.

“Although Juror A follows a number of West Virginia elected officials and members of the media — including Kennie Bass of WCHS-TV and Brad McElhinny of West Virginia MetroNews, who reported on the evidence admitted at trial — there is no evidence that Juror A was exposed to any content related to the case,” Copenhaver wrote.

Now the full appeals court will hear the matter.

“This petition for rehearing en banc presents a single question of exceptional and growing importance: whether circumstantial evidence that a juror was exposed on social media to extraneous information about a trial can ever entitle a criminal defendant to a hearing,” Loughry’s attorneys wrote in their request for the hearing.

(Mike Frisch)

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