Twitter Use During Trial Not Enough for Hearing on Juror Bias

US v. Loughry: Loughry was the Chief Justice of the West Virginia Supreme Court of Appeals when reporting emerged about wasteful spending by the justices. As a result of the ensuing investigation, Loughry was charged federally with 25 counts of fraud and "related claims" while being subject to impeachment proceedings in the state legislature. Loughry went to trial and, during voir dire, a juror ("Juror A") answered that she did not have any knowledge "of this case" or the "facts of this case," was familiar with the impeachment proceedings, and said she could set that aside and base her verdict only on evidence presented in court. Loughry was convicted on eight counts of fraud and two counts of making false statements. 

 

After trial, someone stopped Loughry's lawyer on the street and told him that he should investigate Juror A, particularly her Twitter account. Counsel learned that Juror A had liked or retweeted several tweets about the WVSCA scandal the summer before the trial. In addition, Juror A had liked a tweet on the day the Government began to present its case and both retweeted someone else and posted her own message later in the trial. All those tweets had to do with football, but counsel learned that among those that Juror A followed on Twitter were local reporters who had reported on the scandal and the trial, though there was no evidence that Juror A liked or retweeted any of their stuff during the trial. Loughry filed a motion for a new trial or an evidentiary hearing, which the district court denied.

 

A divided Fourth Circuit affirmed the denial of Loughry's motion for an evidentiary hearing (the only issue raised on appeal). First, the court concluded that Juror A's use of Twitter during the trial did not constitute misconduct. The court rejected the argument that the nature of social media made any potential juror contact with it during trial raises a presumption of prejudice. Thus, the court held, Loughry could not show "a credible allegation that an unauthorized contact was made" with a juror. As the court pointed out, the jury instructions about social media only prohibited jurors from consuming social media related to the case itself, not in general. Second, the court concluded that Juror A had not falsely answered any voir dire questions in light of having liked and retweeted material about the WVSCA scandal because that was not part of the "this case," noting that she had affirmatively answered that she had knowledge of the impeachment proceedings. Finally, the court held there was no error in failing to hold an evidentiary hearing on the issue of Juror A's actual bias against Loughry because there was no evidence to support it.

 

Judge Diaz dissented in part, arguing that Loughry was entitled to a hearing "to ascertain the full extent of Juror A's Twitter activity during the trial," noting that her activity on the two days during trial "indicates that she likely scrolled through her Twitter feed passively on at least some of the days when she didn't affirmatively interact with other accounts."

UPDATE: The Fourth Circuit has granted rehearing en banc in this case. After hearing oral argument, the court entered a one-line per curiam opinion that the "judgment of the district court is affirmed by an equally divided court."