4th Circuit skips chance to provide social media guidance in W. Va. justice's case

May 21 - More than 60 years ago, the U.S. Supreme Court ruled in Remmer v. United States that defendants in criminal trials are presumed to be prejudiced when a juror has received outside communications about the case.

On Thursday, the en banc 4th U.S. Circuit Court of Appeals skipped an opportunity to offer guidance to lower courts about Remmer in the age of social media.

The en banc appeals court split evenly in U.S. v. Loughry, which posed the question of whether former West Virginia Chief Justice Allen Loughry was wrongly denied a post-trial Remmer hearing after he learned that a juror in his criminal trial may have seen tweets from reporters covering the trial. (Loughry was convicted in 2018 on fraud charges stemming from an investigation of his misuse of public funds during the renovation and restoration of his courthouse.)

The deadlocked appellate court’s one-sentence opinion merely affirmed a ruling by U.S. District Judge John Copenhaver of Charleston, West Virginia, that Loughry was not entitled to a Remmer hearing because he didn’t offer credible evidence of the juror’s exposure to the tweets.

Loughry’s lawyer, Elbert Lin of Hunton Andrews Kurth, said by email that the one-sentence decision was disappointing – and not just because his client lost. “Social media poses a growing threat to a criminal defendant’s Sixth Amendment right to an impartial jury,” Lin said. “District courts cannot protect against that threat without first understanding how social media platforms work and then having clear guidance from appellate courts. The court missed an opportunity to provide that informed guidance.”

I think Lin’s right. You only have to listen to the audiotape of the May 3 oral arguments before the en banc 4th Circuit to understand why social media is a tough problem for judges overseeing criminal trials. The appellate judges were so deeply engaged that they frequently talked over one another in the rush to ask questions of Lin and prosecutor Richard McVey of the Charleston, West Virginia, U.S. Attorney’s office. The 95-minute argument ran well over its allotted time.

One wing of the appellate court worried that if trial judges authorized “fishing expeditions” into jurors' Twitter feeds, prospective jurors would be dissuaded from serving. “What’s your limiting principle?” Judge Harvie Wilkinson demanded of Loughry counsel Lin. “How do we keep this from becoming an unwarranted burden?”

But another set of judges contended that without Remmer hearings, defendants cannot find out if jurors have been reading social media posts about the trial. Judge Albert Diaz, who partially dissented from the three-judge panel decision under en banc reconsideration, urged his colleagues to focus on “the nature of the technology,” arguing that defendants like Loughry can’t prove a juror saw a post that appeared in their social media feeds without an evidentiary hearing.

It also became clear in the course of the hearing that not all of the 4th Circuit judges understand how Twitter works. As I’ve reported, after Loughry was convicted, a tipster told his lawyers to check out a Twitter account belonging to one of his jurors, known in post-trial proceedings as Juror A. Juror A was a fairly passive Twitter user, but her public account showed that in the four months before Loughry’s trial, she showed an interest in West Virginia’s investigation of the justices on its supreme court. Of the 11 tweets Juror A liked or retweeted before Loughry’s trial, four related to the judicial impeachment investigation.

Defense lawyers were able to determine from Juror A’s Twitter account that she followed the accounts of two West Virginia journalists who covered and tweeted about Loughry’s trial. Based on her public tweeting activity, Loughry’s counsel confirmed that Juror A used Twitter during the trial. (The juror posted a tweet about football and liked or retweeted two other football-related tweets.) Given that the juror was on Twitter during the trial and followed accounts belonging to journalists covering the trial, the question was whether Juror A saw any of the reporters’ tweets about the case.

Judge Paul Niemeyer, who wrote the three-judge panel opinion under en banc review, did not seem to grasp what it means to follow an account on Twitter. He repeatedly pressed Loughry counsel Lin about his evidence that Juror A “followed” the reporters, apparently to raise doubts that Juror A saw the reporters’ tweets. Lin eventually tried to explain that the juror’s own publicly-available Twitter account showed that she followed the reporters’ accounts, which meant that their tweets appeared in her Twitter feed. (The government did not contest that Juror A followed the journalists’ accounts.) Finally, another judge jumped in to clarify that the question was whether the juror saw the tweets in her feed, not whether she followed the reporters’ accounts.

The kerfuffle might seem like a matter of semantics, but it highlights courts’ relative unfamiliarity with social media. The 4th Circuit judges kept drawing analogies during oral argument to old-school media. Trial judges have long instructed jurors not to read or watch news stories about the cases they’re hearing. Some 4th Circuit judges suggested that social media is no different, especially because judges now routinely include warnings about avoiding Facebook, Twitter and other social media posts. Other judges weren’t so sure that social media is just a 21st century update of traditional news reports.

The en banc court’s even split and one-sentence per curium opinion provides no answers for judges, prosecutors and defense counsel about how to determine when Twitter has tainted a trial.

Loughry counsel Lin said the former justice is considering his next step, presumably an appeal to the Supreme Court. The U.S. Attorney’s office did not immediately respond to an email requesting comment.

The next appeal that raises the Twitter taint issue appears to be a doozy: Joaquin Archivaldo Guzman Loera, better known as El Chapo, is appealing his 2019 drug trafficking conviction to the 2nd Circuit, arguing, among other things, that jurors were influenced by Twitter posts describing salacious accusations that were excluded from the evidence presented at trial. Oral argument has not yet been scheduled in the Guzman appeal.

READ MORE:

En banc 4th Circuit will reconsider juror's Twitter in convicted W. Va. justice's case

U.S. courts update social media guidance for jurors for the first time since 2012

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