More Juror Misconduct

This is yet another post about technologically based juror misconduct in a criminal trial. As I explained in one of my early posts on the topic, juror misconduct is the term that is used to refer to actions by jurors that are at least arguably inconsistent with their role in a criminal trial.

As I explained in that post, Article III of the U.S. Constitution and the Sixth Amendment to the U.S. Constitution create a right to trial by jury in criminal cases. As I noted, the jurors’ role is to be a finder of facts; if they find the facts needed to convict are proved beyond a reasonable doubt, they’re to convict. If not, they’re to acquit. They’re also, as I explained in the earlier post, supposed to base their fact-finding (and applying the law to the facts) ONLY on what they heard in court, i.e., on the evidence presented in court and the law the judge instructed them on. If jurors go outside those facts and that law, they introduce impermissible variables into their decision-making process, which can result in a verdict being set aside.

That’s what at least arguably happened in State v. Dellinger, 2010 WL 2243511 (West Virginia Supreme Court 2010). Christopher Dellinger, formerly a Braxton County Deputy Sheriff, went to trial on charges of falsifying accounts and obtaining money or goods by fraud. State v. Dellinger, supra. As a Deputy Sheriff, Dellinger was responsible for applying for and

administering various grants for the benefit of the . . . Sheriff's Department. At issue below was whether [he] violated the terms of three grants awarded to the Braxton County Commission by the West Virginia Commission on Drunk Driving Prevention for the purpose of funding equipment or hiring personnel to aid in the enforcement of drunk driving laws. According to the State, the evidence demonstrated [Dellinger] claimed credit for hours he had not worked and time he spent on administrative duties. . . . [T]he State argued that the grant requirements . . . did not provide for payment for administrative work.

State v. Dellinger, supra. Dellinger was convicted and appealed, which brings us to the juror misconduct issue. State v. Dellinger, supra. He learned of the misconduct while the jury was deliberating and once he was convicted, filed a motion for a new trial based on misconduct. State v. Dellinger, supra. The trial judge held a hearing on the issue:

[O]ne week before [the] trial began, Juror Hyre [who had been summoned but had not yet appeared for jury duty] sent a message to [Dellinger’] on `www.MySpace.com’. . . . Juror Hyre, known as `Amber,’ wrote. . . . `Hey, I dont know you very well But I think you could use some advice! I havent been in your shoes for a long time but I can tell ya that God has a plan for you and your life. . . . Talk soon!’ . . .

[A]fter she sent this message to [Dellinger], the two became MySpace `friends’. . . .

[O]n February 13, 2008, during . . . the trial, Hyre posted the following message on her MySpace page: `Amber Just got home from Court. . . . back to court in the morning!’ She also described her `mood’ as `blah.’ This message was . . . available for viewing . . . by all of her approximately 130 MySpace `friends’. . . .

At the . . .hearing . . . Hyre testified that although she and [Dellinger] were MySpace `friends’ the two had never had a face-to-face conversation and did not have a close, personal relationship. She testified that he was `[j]ust somebody I knew,’ and explained that `I knew him. I mean he's a cop in the county; everybody knows all the cops.’ . . .

State v. Dellinger, supra. During voir dire, when the judge asked the prospective jurors if “they had a business or social relationship” with Dellinger, Hyre “remained silent.” State v. Dellinger, supra. When asked why she didn’t tell the court she knew Dellinger, Hyre said “[b]ad judgment, I guess” but also said she didn’t “know him personally” because she’d “never, never talked to him.” State v. Dellinger, supra. (Hyre also failed to mention that she was “related by marriage” to two of the witnesses who testified at trial. State v. Dellinger, supra.)

After the hearing, the trial judge denied Dellinger’s motion for a new trial, finding that

Hyre's `contact with [Dellinger] was minimal, and she was a fair and impartial juror.’ The court found that Hyre `acknowledged that she knew of [him]' from his time . . . as a deputy. . . She also stated that for a time they lived in the same apartment building, but that she has never had a face-to-face conversation with [him].

State v. Dellinger, supra. The judge also found that her MySpace posting “`did not state which trial she was hearing or any facts or opinions about the trial’” and that she didn’t “`disclose this internet contact with’” Dellinger “because she does not feel she really knows [him] as these e-mails represent the entirety of their relationship.’” State v. Dellinger, supra. He appealed, as noted above, to the West Virginia Supreme Court.

That court found that Hyre’s “repeated lack of candor clearly undermined the purpose of voir dire and . . .deprived [Dellinger] of the ability to determine whether she harbored any prejudices or biases against him or in favor of the” prosecution. State v. Dellinger, supra. The Supreme Court also found that Hyre’s responses during the hearing on misconduct “coupled with her repeated silence during voir dire, leads this Court to conclude that she had such connection” with Dellinger “that bias must be presumed.” State v. Dellinger, supra. The Supreme Court noted that during voir dire “several of the jurors” disclosed their ties to Dellinger, which led the trial judge to “further question” them to determine if they “could fairly and impartially consider the evidence and render a verdict without bias or prejudice.” State v. Dellinger, supra. It also noted that Hyre was present when this occurred but “elected not to reveal any information about her connections” to Dellinger.” State v. Dellinger, supra.

And the Supreme Court rejected the trial judge’s finding that Hyre remained silent

because she did not personally `know ‘[Dellinger]' belies the fact that, at the very least, she believed she knew him well enough to give him advice about his divorce. In her February 7, 2008, MySpace message . . . she wrote, `I dont know you very well But I think you could use some advice!’ In stating “I dont know you very well,” it is obvious Hyre felt she knew [him] to some degree; . . . she at least believed herself to be familiar enough with [him] she proceeded to offer him spiritual counsel. Hyre's familiarity with [him] is further suggested by her message's closing remark of `[t]alk soon.’

Furthermore, Hyre formerly lived in the same apartment complex as [Dellinger] but did not reveal that information either. . . .

State v. Dellinger, supra. The Supreme Court therefore reversed Dellinger’s conviction:

[W]e hold that the trial court was clearly wrong in finding Hyre to be a `fair and impartial juror.’ To the contrary, . . . Hyre intentionally and repeatedly failed to be forthcoming about her connections to [Dellinger and the two witnesses], arguably, to improve her chances of serving on [his] jury. Whatever her reasons for doing so, she cannot be considered to have been indifferent or unbiased. . . . . We, therefore, reverse the court's August 11, 2008, order and remand this case for a new trial.

State v. Dellinger, supra.

Maybe you’re wondering why Dellinger didn’t raise the fact that Hyre at least knew him during voir dire and/or at some other time before the jury returned its verdict? According to this opinion, Dellinger said

he did not then recognize Hyre to be the . . . `Amber’ who wrote to him on MySpace. Apparently, `Amber’ from MySpace did not include her last name and, according to [Dellinger], Hyre looked very different from her photograph posted on the website. As indicated above, [he] alerted the trial court to Hyre's MySpace message just following the verdict, having first learned that Hyre and `Amber’ were the same person only a short time earlier.

State v. Dellinger, supra. In a footnote, the Supreme Court pointed out that

unlike Hyre, [Dellinger’s] first and last names appeared on MySpace; identified him as a law enforcement officer; and . . . included a photograph of him in his law enforcement uniform. Thus, we agree with [his] contention that Hyre could not have reasonably failed to recognize [Dellinger] as the defendant in the trial below.

State v. Dellinger, supra.

And while I’m pointing things out, the prosecution’s brief on appeal includes some comments the trial judge made in denying Dellinger’s motion for a new trial which put that ruling into a little more context, maybe:

`It would have troubled the Court if Amber Hyre would have been a social acquaintance of the defendant or something of that sort. While I respect [defense counsel's] argument involving mere acquaintance, I don't know that Ms. Hyre's relationship with any of these parties or with the defendant even comes up to the definition of an acquaintance, in the matter, quite frankly, I would never get a jury in this county on any case because this county is so small that people come in contact everyday. . . . But . . . mere acquaintance, I do not believe it's sufficient and enough to show bias by a juror in the matter.’

Brief of Appellee, State v. Dellinger, 2010 WL 942481 (2010). So far, this is the only reported case I’ve found in which a juror and a defendant were friends on a social networking site.