The Juror, the Tweets, Bias and the 6th Amendment

More and more cases dealing with actual or potential juror misconduct involving the use of social media are popping up in the case reports. Here, for example,  after a jury convicted

Rui Yang and her co-defendants, Feng Ling Liu and Vanessa Bandrich (collectively `Defendants’), of one count of conspiracy to commit immigration fraud pursuant to 18 U.S. Code § 371. The evidence at trial established that Defendants, each of whom worked at one of two law firms in New York's Chinatown, conspired over a multi-year period to submit approximately 1,800 fraudulent asylum applications to federal immigration authorities.

Ms. Yang, joined by her co-defendants, now moves for a new trial under Fed.R.Crim.P. 33 based on alleged juror misconduct. They contend that one of the jurors in this matter lied about the fact that she had been routinely posting about her jury service on the social media service Twitter-or `tweeting’-during the trial. Defendants further argue that the juror disobeyed the Court's instructions by tweeting and that the tweets reveal the juror's bias against them. All this, they claim, deprived them of their 6th Amendment right to a trial by an impartial jury. 

U.S. v. Feng Ling Liu, 2014 WL 6076571 (U.S. District Court for the Southern District of New York 2014).  You can read more about the case here.

The District Court Judge began her analysis of the defendants’ argument by explaining that it focused “on the conduct of . . . Juror 2”, who said “during voir dire that she was a self-employed crime fiction writer”.  U.S. v. Feng Ling Liu, supra.  After the jurors were chosen but before the parties began presenting evidence, the judge instructed them on their duty to remain impartial and to only consider evidence presented during the trial.  You can find a similar, but much shorter, instruction here.   The instructions she gave included this one: 

 Do not talk or read about the facts or circumstances of this case on social networking sites such as Facebook or MySpace. Don't tweet about your experience here on Twitter, and don't try and find any information about this case or any similar case, whatsoever.

U.S. v. Feng Ling Liu, supra (emphasis in the original).

After the trial began, the judge received an anonymous email which informed her that Juror 10 was tweeting about the trial.  U.S. v. Feng Ling Liu, supra.  The judge then dismissed that juror.  U.S. v. Feng Ling Liu, supra.  She also spoke with each of the remaining jurors (Juror 10 was replaced by an alternate) to find out if they had “any improper communication with Juror 10”, i.e., whether they had discussed the guilt or innocence of the defendants, the evidence presented, etc.  U.S. v. Feng Ling Liu, supra.  This is the conversation the judge had with Juror 2:

THE COURT: Come on in. So, I'm asking this of all the different jurors just to confirm. Have you spoken or communicated about this case in any way with any of the other jurors?

JUROR 2: No.

THE COURT: Either in person or on social media?

JUROR 2: No.

THE COURT: In particular, have you communicated at all with Juror 10, [name omitted,] about the case?

JUROR 2: I don't know which one she is.

THE COURT: Oh, she is [name omitted].

JUROR 2: Which one is she? She looks like what?

LAW CLERK: She has the short hair.

THE COURT: Dark hair, petite, stylish.

JUROR 2: Oh. No. I'm like I don't know. I know them by like the actress and vegetarian.

THE COURT: Have you talked to anyone about the case, putting aside who she is?

JUROR 2: No, aside from things like, oh, my God, I hope it's over tomorrow and things like that.

THE COURT: Have you followed this at all on the Internet or on social media?

JUROR 2: No.

THE COURT: OK. And I think that's it. Please don't talk to the other jurors even about what I asked you.

JUROR 2: OK, no problem.

U.S. v. Feng Ling Liu, supra.  

On September 5, Yang

filed the instant motion, bringing Juror 2's activities on Twitter to the Court's attention for the first time. Based on the materials provided by counsel, Juror 2's tweets appear to have begun on March 23, the day before opening statements, and to have concluded on April 14, the day the verdict was announced.

U.S. v. Feng Ling Liu, supra.  The defense attorney gave the judge a transcript of all of Juror 2’s tweets.  U.S. v. Feng Ling Liu, supra.  This is how the judge summarized them:

Juror 2's early tweets evidenced both of what would become two recurring themes in her posts. The first was frustration about the commitment required to sit on a long jury trial. On March 23, when asked, `How are you doing?’ she responded: `Eh. Sitting on a jury for the next three weeks. May be interesting, but I don't really have three weeks to put my life on hold. Plus it's Fed court, so it means my jury day goes 7:15am to 6:45pm with the commute:-/.’ Her interlocutor replied, . . . `Can I at least hope you're getting some good material for another book?’ Juror 2 replied: `I don't know. Maybe. You never know what will happen: D I'll tell you once the trial's over:> But I am keeping an eye out.’ This comment about potential ideas for future writing projects was another recurring theme in her tweets. The remaining tweets described various aspects of life as a juror, such as the temperature in the courtroom and whether the jury box chairs were comfortable, as well as whether it would be appropriate to speak with various trial participants at the conclusion of the trial.

On March 26, several days into trial, Juror 2 queried: `I suppose it's inappropriate to ask judges, prosecutors & witnesses to talk to your MWA [Mystery Writers of America] chapter after the trial ends? The same day, another user asked, `How is jury duty going? That is, if you can tell me!!/ Juror 2 replied, again reiterating the difficulties of her commute: `it's okay. The bloody courtroom is FREEZING and the days are long because I have [a] 2hour [sic] commute on each end.’ Juror 2 then mentioned that while `they said the trial would be three weeks,’ having `seen the witness list now, . . . I am betting it goes longer.’ In the subsequent back-and-forth about how long she would be occupied with jury duty, Juror 2 mentioned that she obviously `can't crochet in the courtroom,’ that her `hands shake pretty badly at this point from the back,’ and that `[f]ederal court jury is comfy chairs.’

The next day, . . . Juror 2 again mentioned that the trial `makes [for] a LONG FREAKING DAY’ and that `[i]t's [a] 2 hour commute each way.:(.’ And she again mentioned her writing career. In response to a question about whether she was getting any book ideas, she said: `Oh, plenty!!’ On April 1, her writing came up again when she remarked, `I really like our judge ... she's the kind of person I would be interested in talking to.’ She also observed that she was `thinking about it,’ when asked whether she would invite the judge to speak at a Mystery Writers of America or Sisters in Crime event once her juror service was over. On April 2, Juror 2 again expressed frustration with how long the trial was lasting: “Waiting for the trial to be over so I can have [a] realistic schedule again.’ When asked whether it was `Boring or fun? Or tedious?’ she replied: `Whenever they're doing something new, it's really interesting. But it's incredibly repetitive.’ Her interlocutor replied in agreement: `Nothing like TV. LOL.’ Juror 2 agreed in her reply: `No, and without saying anything a/b [about] the actual proceedings, 3 separate defendants, so every witness gets questioned a LOT.’

Four days later, . . . the tweeting recommenced. One user told Juror 2: `You're almost done with the trial! YOU CAN DO IT!!’ She replied: `And then I can have surgery . . . YAY.”’ The writing theme came up yet again when the user asked: `you've got a lot of good research and plot bunnies, right?’ Juror 2 replied: `Oh, tons. And I am still trying to figure out how to ask the FBI guys, judge, and AUSAs if any of them will talk to my. . . .’ (The balance of the tweet has not been provided.) Later the same day, Juror 2 mentioned her writing again, observing that `I write romantic suspense, so it helps that the criminal aspects interest me. On a civil case, I'd be nuts.’

On April 14, several hours after the verdict was announced and the jury was excused with instructions that it was now free to discuss the case . . . Juror 2 provided her Twitter followers with additional details about the trial: `Okay, for all my tweeps who've been waiting to find out about the jury I've been on forever, this was the case: [Link to FBI press release].’ She went on: `I now know far more about immigration than I ever wanted to and have parsed the legal definition of conspiracy seven ways from Sunday.’ Juror 2 further described the trial, noting: `We had three [defendants:] two lawyers and an office worker. It was really hard and we spent days deliberating.’ In the course of a back-and-forth with multiple users, she twice described the trial as `unreal’ and that the trial had `definitely [provided] book fodder.’ She also commented on `[t]he sheer numbers of clients these guys were doing in a year . . . holy moly. And at 10k to 13k per win.’ She further stated that `one of the defense [attorneys] had the balls in his summation to say that his client was just trying to help poor refugees from rural communities who didn't have the education to get asylum on their own. At $11k a pop.’ Finally, Juror 2 remarked that `these people prey on the fear and relative ignorance of applicants. It's horrible.’

U.S. v. Feng Ling Liu, supra.  

The judge then explained that Rule 33 of the Federal Rules of Criminal Procedure says

that upon a defendant's motion `the court may vacate any judgment and grant a new trial if the interest of justice so requires.’ . . . This rule, the [U.S. Court of Appeals for the 2d Circuit] has explained, affords a trial judge `broad discretion . . . to set aside a jury verdict and order a new trial to avert a perceived miscarriage of justice.’ U.S. v. Sanchez, 969 F.2d 1409, (2d Circuit 1992); see also U.S. v. Robinson, 430 F.3d 537, 543 (2d Circuit 2005). `It is well-settled,’ however, `that motions for new trials are not favored and should be granted only with great caution.’ U.S. v. Costello, 255 F.2d 876 (2d Circuit 1958. . . .`The ultimate test is whether letting a guilty verdict stand would be a manifest injustice.’ U.S. v. Aguiar, 737 F.3d 251 (2d Circuit 2013). . . . In other words, `there must be a real concern that an innocent person may have been convicted.’  U.S. v. Aguiar, supra.

U.S. v. Feng Ling Liu, supra.  

She then went on to explain that the 6th Amendment guarantees defendants the right to

trial `by an impartial jury.’ . . . .  `A juror . . .  who posts comments about the trial on [social media], may, in certain circumstances, threaten [that right].’ U.S. v. Ganias, 755 F.3d 125 (2d Circuit 2014) The question here is whether the Juror 2's actions did so. Defendants advance three related arguments.

First, they argue that Juror 2 failed to honestly answer a material question following the discovery of Juror 10's tweets such that, had she answered honestly, Defendants would have had a valid basis to seek her removal. Second, Defendants assert that the juror ignored the Court's express instructions not to post about the trial on social media. Finally, building on the first two claims, Defendants assert that Juror 2's tweets reveal her bias against them.

U.S. v. Feng Ling Liu, supra.  

The judge explained that to prevail on the first argument, the defendants had to

make a two-part showing to receive a new trial based on juror misstatements or nondisclosure. First, Defendants must `demonstrate a juror failed to answer honestly a material question on voir dire,’ and, second, `that a correct response would have provided a valid basis for a challenge for cause.’ McDonough Power Equipment, Inc. v. Greenwood, 474 U.S. 548 (1984).  Both of these elements must be satisfied because defendants are not entitled to a new trial `based simply on whether a ... juror had lied, without respect to whether the dishonesty had a bearing on her impartiality.’ U.S. v. Langford, 990 F.2d 65 (U.S. Court of Appeals for the 2d Circuit 1993).

U.S. v. Feng Ling Liu, supra.  

She ultimately found that the defendants’ argument

fails at step one. First, they assert that Juror 2 `repeatedly denied during questioning that she had communicated about this case on the internet or social media.’ . . . The record establishes otherwise. Indeed, Juror 2 was never asked specifically whether she had discussed the case with anyone on Twitter or other social media. Rather, the Court's questions-which were formulated after discussion with counsel for both sides-queried (1) whether Juror 2 had `communicated about this case in any way with any of the other jurors . . .  [e]ither in person or on social media`; (2) whether she had `talked to anyone about the case, putting aside who she is’; and (3) whether she had `followed this [case] at all on the Internet or on social media.’

U.S. v. Feng Ling Liu, supra.  

The judge then pointed out that while some of Juror 2’s comments

did go further than discussing the duration of the trial, none of those comments strayed outside her explicit acknowledgement of discussing other `things like that.’ These additional comments fall into three categories. The first included miscellaneous banter about the courtroom, such as the `FREEZING’ temperature, not being able to `crochet in the courtroom,’ and the `comfy chairs’ in the jury box. . . . The second category included comments about whether the trial was providing ideas for future writing projects  . . . and the third category concerned whether it would be appropriate to speak with the FBI agents, judge, and prosecutors at the conclusion of the trial. . . . None of these comments evidence a discussion of `the case’ one way or another.

U.S. v. Feng Ling Liu, supra.  

The judge went on to point out that none of Juror 2’s answers were dishonest:

She was first asked whether she had `spoken or communicated about this case in any way with any of the other jurors.’ . . . She responded that she had not. There is nothing to suggest that this answer was anything but true. She was next asked whether there had been any communications with other jurors `[e]ither in person or on social media.’ Again, her response was no, and again, there is nothing to suggest this answer was untruthful. The same is true for the subsequent questions concerning any contacts with Juror 10. Her final answer does not suggest dishonesty either. When asked whether she had `followed this [case] at all on the Internet or on social media,’ Juror 2 answered in the negative. As the Government rightly observes. there is no evidence to suggest this answer was untrue because there is a relevant distinction between posting something and reading it. Juror 2's impugned activities were entirely within the former category and Defendants have not claimed otherwise. Furthermore, as noted above, the tweets she did post cannot fairly be characterized as being about `the case.’ Accordingly, there is nothing in the record to suggest that Juror 2 was anything but honest in responding to the Court's questions on April 9.

U.S. v. Feng Ling Liu, supra (emphasis in the original).

The judge also rejected the defendants’ argument that Juror 2 was biased against them because she tweeted about asking “`judges, prosecutors and witnesses’” to speak at her chapter of the Mystery Writers of America asking the FBI agents and/or prosecutors to do the same.  U.S. v. Feng Ling Liu, supra.  She explained that the “mere fact that a juror is interested in communicating with individuals associated with one party in a case does not, without more, establish bias or permit an inference of bias.”   U.S. v. Feng Ling Liu, supra.  She also pointed out that Juror 2

is a writer of crime fiction-as all parties were well aware from the outset of this case-and it is hardly surprising that she should be curious to speak with the FBI, prosecutors, and the judge for any number of reasons, just as it would not be surprising had she expressed a desire to speak to defense counsel and the judge, or some other combination of trial participants. To find bias in these circumstances, without more, requires crediting speculation over facts.

U.S. v. Feng Ling Liu, supra.  

Finally, the defendants argued that Juror 2

engaged in misconduct by failing to follow the Court's order not to `[t]weet about your experience here’. . . . While it is true that Juror 2 did indeed tweet about her experience, as a preliminary matter, it is clear that the Court's instruction, when read in context, was concerned with comments concerning “the facts or circumstances of this case.” . . . That much was confirmed when, shortly after Juror 10 was dismissed for her actions, the Court observed to counsel that a juror `can say [on social media that] you are on jury duty, you are just not allowed to talk about the substance of it.’ . . .  (emphasis added).

Indeed, Juror 2's tweets show that is precisely how she understood the admonition. On March 23, in response to a question about what she was learning at the trial, she tweeted: `I'll tell you once the trial's over.’ . . . (emphasis added).) Similarly, on April 6, she agreed with another user that the trial was nothing like television shows but added: `without saying anything a/b [about] the actual proceedings, 3 separate defendants, so every witness gets questioned a LOT.’

U.S. v. Feng Ling Liu, supra.

The judge found held that Juror 2 was an

attentive juror who, while engaging in banter with fellow Twitter users about her experience, was nonetheless careful never to discuss the substance of the case, as instructed by the Court. The record is devoid of any evidence that she was either dishonest or biased, or that Defendants were prejudiced by her tweets in any way. Accordingly, and for these reasons provided herein, Defendants' Rule 33 motion is DENIED. 

U.S. v. Feng Ling Liu, supra.