Judge Dismisses Jury After Panelist Goes Online in Kentucky Case

By BRETT BARROUQUERE | April 15, 2013

The revelation that a potential juror went online to do research about a client came as a bit of a surprise. Dawn C. Doherty wasn’t surprised, though, by U.S. Magistrate Judge James Moyer’s decision to dismiss the entire jury pool because of it.

Moyer disbanded the jury pool in Louisville, Ky., in a case brought by Cincinnati Insurance Company against stainless steel tubing maker Omega Flex after finding out a juror, identified in court records only as (hash)230, used a cellphone to discover that Omega Flex had lost a similar case in Pennsylvania and told other jurors about it. Compounding the problem: (hash)230 told the other jurors the verdict was for $10 million, not $1.28 million, the actual amount.

“There is a real risk that the jury pool is tainted and there may be some material impact as a result of the online research incident,” Moyer wrote.

The case illustrates an issue facing judges and attorneys nationwide: What to do when a juror goes online to find out information about the case before the court?

“Pandora has opened the box and it is all out there,” said Paula Hannaford-Agor, director of the Center or Jury Studies at the National Center for State Courts in Williamsburg, Va. “And, it ain’t going back.”

Judges routinely instruct jurors not to seek information outside of the courtroom and reach a verdict based on only the facts the judge has decided are admissible. In recent years, those instructions have been amended to include Internet searches. Now, cellphones afford the capability of looking up a party to the case online or consulting or finding other information in violation of complex legal rules of evidence.

Yet complete isolation for jurors is nearly impossible when all manner of information is available with the press of a finger on a keypad.

“They are supposed to be basing their verdict on the evidence presented in courtroom and nothing more,” said Louisville attorney Darren Wolff. He faced the issue of jurors conducting online research during a murder trial in February and March.

There’s no standard rule across the country for handling such situations. Ohio courts have granted judges some leeway in handling jurors who use technology outside the courtroom. In Maryland, though, the state’s highest court has ruled that mistrials are a must when juror misconduct takes place.

“It’s something that will have to be reckoned with as things go on,” said Doherty, a Philadelphia-based attorney.

Hannaford helped conduct a study in 2011 of courts in California, Connecticut, Florida, Michigan, Pennsylvania, Texas and Virginia looking at jury pools in 15 separate cases. The study found that 90 percent of the jurors surveyed had either immediate access or daily contact with the Internet.

“They want to know things because they think it will make them a better juror because they think they have more information and a better understanding of the case,” Hannaford-Agor said.

Hannaford-Agor said judges need a better way to handle such situations rather than declare a mistrial every time a juror goes online. Judges should investigate what the juror saw and if any other jurors are aware of what the online research turned up, Hannaford-Agor said. Dismissing an entire jury pool every time someone looks online will lead to multiple delays and, in some cases, can mean a case doesn’t go to trial.

“The practical reality is … you’re going to get jurors who are going to screw up, either intentionally or because they are Internet addicts and can’t put it down,” Hannaford-Agor said. “I’m afraid we’re going to let the pursuit of excellence get in the way of fair and good.”

For Wolff, there’s only one solution: declare a mistrial and start over.

“There is no way around it,” Wolff said.

Omega Flex makes stainless steel tubing. Both the Kentucky and Pennsylvania cases involved a lightning strike that started a fire. A jury in Pennsylvania found for the homeowners and awarded them $1.028 million in 2008. Cincinnati Insurance sued Omega Flex in Kentucky to recover more than $840,000 paid out in damages.

The Philadelphia-based attorneys for Cincinnati Insurance did not return messages seeking comment Thursday.

At a bench conference with the judge and attorneys in the Kentucky case, the juror recounted the story. Moyer decided to eliminate the risk of having the entire jury tainted by the Internet research; it was better to end the trial early and start over than go on and have a mistrial declared later or a reversal on appeal.

“The cost of continuance is real, but more manageable,” Moyer wrote in a decision released Wednesday.

To Doherty, that was the right call.

“We all wanted to move forward. Eventually, everyone gets their day in court,” Doherty said. “This is for another day, I guess.”

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