Friday, June 30, 2017

“Wanton Murder,” the Jurors and Facebook

This post examines an older opinion from the Supreme Court of Kentucky: Sluss v. Commonwealth, 381 S.W.3d 215 (2012). I decided to do a post on this case because it raises some interesting issues about jurors and social networking.
The Supreme Court begins the opinion by explaining that
[a]fter a jury trial, Appellant Ross Brandon Sluss was convicted of murder, assault in the first degree, two counts of assault in the fourth degree, driving under the influence of intoxicants, and tampering with physical evidence. Appellant was sentenced to life imprisonment. He raises sixteen issues on appeal. This Court concludes that the trial court erred in not giving full consideration to Appellant's claim of juror misconduct, which is founded on a question of first impression alleging that jurors may have lied during voir dire and juror bias through the use of social media websites, namely Facebook. This case is therefore remanded to the Martin Circuit Court to hold a hearing on whether the jurors answered voir dire questions truthfully, and, if not, the extent of exposure the jurors had to the Facebook account of the victim's mother, and whether that exposure, if any, tainted the jurors to such extent that it was a miscarriage of justice to allow them to participate as jurors in Appellant's trial. Consideration of the remaining issues on appeal, except for the directed verdict question, is abated pending resolution of the juror issue.
Sluss v. Commonwealth, supra. In the opinion, the court refers to Sluss as “Appellant,” i.e.,
The opinion goes on to explain that
[o]n June 24, 2010, in Martin County, Kentucky, Appellant Ross Brandon Sluss crashed his Ford F–150 pickup truck into an SUV carrying several passengers, one of whom was Destiny Brewer, who died as a result of her injuries. Three other passengers were injured. At the scene of the crash, Appellant was administered two types of field sobriety tests, which he failed. He was not immediately arrested but was given a second test by a deputy familiar with Appellant's normal mannerisms. Upon failing this test, Appellant was arrested for driving under the influence. Appellant admitted that he had smoked marijuana earlier that day, and at that point, was given his Miranda warnings. Appellant subsequently refused to consent to blood or urine tests, and a search warrant to withdraw blood and for a urinalysis was obtained. Appellant later consented to the blood test. But he was resistant to the urinalysis, and provided a small amount of urine. The blood screen indicated the presence of cannabinoid metabolites (marijuana) and a number of other medications, including oxycodone, alprazolam, hydrocodone, and meprobamate. The urinalysis was not completed because there was insufficient urine in the sample. The toxicity report indicated that each of the substances indicated in the blood screen was at or under `therapeutic’ levels. On September 2, 2010, Appellant was indicted by the grand jury of Martin Circuit Court, charging him with murder, assault in the first degree, two counts of assault in the second degree, driving under the influence of intoxicants, tampering with physical evidence, and being a persistent felony offender in the second degree. This case received much publicity in Martin County due to the age of Destiny Brewer, who was eleven years old, and the tragic circumstances surrounding her death. There were numerous articles in the local newspapers and reports on the television news programs. Members of the community also took to the internet to discuss the incident and the upcoming trial on websites such as Facebook and Topix. The trial court acknowledged the publicity surrounding the case and engaged in extensive voir dire procedures in order to ensure that Appellant received a fair trial, striking more than fifty potential jurors for cause. Appellant was convicted of murder, assault in the first degree, two counts of assault in the fourth degree, operating a motor vehicle under the influence of alcohol or drugs, and tampering with physical evidence. The jury recommended a life sentence on the count of murder. The jury also recommended a twenty-year sentence on the count of assault in the first degree, a 12–month sentence on the two counts of assault in the fourth degree, a six-month sentence on the driving under the influence charge, and a five-year sentence on the tampering with physical evidence charge. Limited by Bedell v. Commonwealth, 870 S.W.2d 779, 783 (Ky.1994) (`[N]o sentence can be ordered to run consecutively with such a life sentence in any case ....’), the trial court sentenced Appellant to life in prison. He now appeals to this Court as a matter of right. Ky. Const. § 110(2)(b)
Sluss v. Commonwealth, supra.
The court goes on to explain that in his appeal, Sluss raised “sixteen issues”, i.e., sixteen arguments as to why he should not have been convicted. Sluss v. Commonwealth, supra. The Supreme Court found that it only needed to address two of those issues, one of which was the directed verdict issue. Sluss v. Commonwealth, supra. This post only examines the other issue, i.e., “juror misconduct.” Sluss v. Commonwealth, supra.
The Supreme Court began its analysis of the juror misconduct argument by explaining that
Appellant claims that the trial court erred in denying his motion for a new trial based on juror misconduct by showing that two jurors may have been “Facebook friends” with the mother of the victim. Evidence was presented after trial suggesting that the jurors, Virginia Matthews and Amy Sparkman–Haney, were “friends” with April Brewer, mother of the victim, on the social media website Facebook during the Appellant's trial, despite their indication during voir dire that they did not know the victim or her family, or the circumstances of the Appellant's case. Virginia Matthews also stated in voir dire that she did not use Facebook. In support of his motion, Appellant provided the trial court with `screenshots’ (electronically captured images from a computer screen) showing that persons named `Virginia Matthews’ and `Amy Sparkman Haney’ were `friends’ with an April Brewer. Appellant also provided screenshots of part of the mother's Facebook page, which contained information about the death of her chil
Sluss v. Commonwealth, supra.
The opinion then went on to explain that the
publicity of this case was a central concern for the trial court at the beginning of this trial. In addition to newspaper and television stories discussing the case, the record indicates that members of the community had often discussed the case on Facebook and Topix, an online message board popular in small communities and known as a hotbed of gossip. For these reasons, the trial court conducted individual voir dire about the publicity surrounding the case in addition to the usual general voir dire. During general voir dire, the jurors were asked if they knew the victim or any of the victim's family. Neither Ms. Matthews nor Ms. Sparkman–Haney spoke up when asked this question. After the general voir dire, the judge conducted the individual voir dire about the publicity surrounding the case. The trial judge typically began individual voir dire by asking the jurors if they were on Facebook or Topix. If they indicated that they were on those sites, the trial judge inquired about whether they had seen anything on Facebook or Topix discussing the case. A few of the jurors mentioned that they had seen messages about changing the law or that a fund had been set up for the victim's family. More than fifty jurors were struck for cause during voir dire, often for indicating that they had knowledge of the case via newspaper, television, or social media. None of the jurors were asked directly whether they were `Facebook friends' with April Brewer, though during general voir dire they had been asked whether they knew either the victim or the victim's family.
Sluss v. Commonwealth, supra.
The Judge went on to explain that 
[d]uring her individual voir dire, Amy Sparkman–Haney was asked if she knew anything about the case. She responded that she only knew that it happened. She also admitted that she had a Facebook account and that she had seen on Facebook that `something’ had been set up in the victim's name for the family. She was never asked whether she was April Brewer's `Facebook friend’ and did not provide that information. Ms. Sparkman–Haney sat on the jury that ultimately rendered the verdict and was actually the jury foreperson. Virginia Matthews also denied that she had heard anything about the case during individual voir dire. When specifically asked by the trial judge whether she was `on Facebook or Topix,’ she paused and then responded unequivocally that she was not. Ms. Matthews also sat on the jury that convicted Appellant. Appellant asserts that the mere fact that each juror was a `Facebook friend’ with April Brewer creates a presumption of juror bias and should have been disclosed during voir dire. Websites such as Facebook do require a member to affirmatively approve or deny requests to enter into a `friendship.’ Therefore, in order for the jurors to become “friends” with April Brewer, either April Brewer would have been required to approve friendship requests from the jurors, or the jurors would have been required to approve requests from April Brewer. In either situation, the `friendship’ that the jurors had with April was not happenstance; there was an affirmative act to connect the parties.
Sluss v. Commonwealth, supra.
The court goes on to point out that
[b]ut `friendships’ on Facebook and other similar social networking websites do not necessarily carry the same weight as true friendships or relationships in the community, which are generally the concern during voir dire. The degree of relationship between Facebook “friends” varies greatly, from passing acquaintanceships and distant relatives to close friends and family. The mere status of being a `friend’ on Facebook does not reflect this nuance and fails to reveal where in the spectrum of acquaintanceship the relationship actually falls. Facebook allows only one binary choice between two individuals where they either are `friends’ or are not `friends,’ with no status in between.

Indeed, some people have thousands of Facebook `friends,’ as was the case with April Brewer, which suggests that many of those relationships are at most passing acquaintanceships. This is further complicated by the fact that a person can become `friends’ with people to whom the person has no actual connection, such as celebrities and politicians. See, e.g., Robbie Woliver, Lady Gaga and her 10 million Facebook friends: celebrity worship syndrome, Psychology Today (July 3, 2010),–gaga–and–her–10–million–facebook–friends–celebrity–worship–syndrome (noting that the singer Lady Gaga has `10 million Facebook friends [who] aren't really her friends’). Thus, a Facebook member may be `friends’ with someone in a strictly artificial sense.

At the time Appellant discovered that jurors Matthews and Sparkman–Haney were April Brewer's `friends,’ Ms. Brewer had nearly two-thousand `friends’ on the website. In a small community in a relatively small county such as Martin County (which has a population of about 13,000), it would not be uncommon for someone to know, to some degree, most of the people in the community, many of whom are members of Facebook, the largest social networking website on the internet with more than 900 million users worldwide. See Nicholas Carlson, Facebook Q1 Profits Down, Operating Income Down, Business Insider(Apr. 23, 2012),–facebook–q1–revenues–profits–down–2012–4.

Consequently, a juror who is a `Facebook friend’ with a family member of a victim, standing alone, is arguably not enough evidence to presume juror bias sufficient to require a new trial. As with every other instance where a juror knows or is acquainted with someone closely tied to a case, it is the extent of the interaction and the scope of the relationship that is the relevant inquiry.
Sluss v. Commonwealth, supra.
The court went on to explain that
[i]n regard to jurors who admitted to being on Facebook, the trial court attempted to make this inquiry by asking whether they had read anything about the case on the website. That the court actually made this inquiry strongly suggests that a juror's status on Facebook was not sufficient standing alone to decide whether the juror was disqualified. This is correct, because it is the closeness of the relationship and the information that a juror knows that frames whether that juror could reasonably be viewed as biased. The fact that jurors were `friends’ of April Brewer, absent other evidence of a close relationship or knowledge, is not sufficient grounds for a new trial.

The Commonwealth correctly argues that the Appellant must do more than simply speculate that the relationship might have somehow affected the jury verdict. Thus, the mere fact that Amy Sparkman–Haney and Virginia Matthews were April Brewer's Facebook friends, which is the extent of the proof the trial court heard about their acquaintance, is not grounds for a new trial.

The problem in this case, however, is the jurors also appear to have made misstatements during voir dire. During individual voir dire, Virginia Matthews responded that she was not on Facebook when asked by the trial court, strongly suggesting that she was not even a member of the website. The Appellant thus had no reason to explore the extent of the Facebook interaction between juror Matthews and April Brewer because he could reasonably believe, given her statement made under oath, that juror Matthews was not a member of the website. Further, both juror Sparkman–Haney and juror Matthews did not respond during general voir dire to the question about knowing any of the victims or their families. The Appellant thus had no reason to explore the extent of any possible relationship between them because he could reasonably believe, given that they were under oath, that they did not know the mother.

In essence, Appellant was foreclosed from conducting proper voir dire of the jurors. The pivotal question thus becomes whether the jurors' `friends’ status with April Brewer, when combined with their apparently untruthful answer to the court's question about whether they knew the victims or their family, was sufficient juror misconduct to support a new trial. The issue is further complicated for juror Matthews because of her apparently untruthful answer to the question whether she even had a Facebook account. Again, because the trial court gave this argument short shrift in addressing the post-trial motion, we do not know to what extent the victim's mother and the jurors had actually communicated, or the scope of any actual relationship they may have had. But assuming that these jurors had read substantial information about the mother's view of the crime or material that might bias them against the Appellant in some other way, or had a hidden relationship with the mother, the question is whether Appellant's reasonable reliance on the jurors' false statements regarding their not knowing the victim's mother and regarding Facebook and friend’ status relating to the victim's mother, combined with the subsequent discovery of evidence of the falsity, opens the door for post-trial review.
Sluss v. Commonwealth, supra.
The opinion goes on to explain that
[t]his Court has held that `[a]s a general rule, anything which is good cause for challenge for disqualification of a prospective juror is deemed good cause for a new trial if not known or discoverable to the defendant or his counsel before the verdict and they were misled by a false answer on voir dire.’ Combs v. Commonwealth, 356 S.W.2d 761, 764 (Ky. 1962). `Basically, the consideration is whether the rights of the accused have probably been prejudiced by concealed impartiality [sic ].’ Id. It was arguably reasonable here for Appellant, in the course of the trial, to rely on the juror's sworn statement about her use of Facebook, and on later discovering the apparent deception, to bring the matter before the trial court. Nevertheless, `[i]t is incumbent upon the party claiming bias or partiality to prove the point’  Polk, 574 S.W.2d at 337. `[T]he question still is whether bias exists as a matter of fact, and that it is not to be presumed.’ Watson v. Commonwealth, 433 S.W.2d 884, 887 (Ky.1968). In other words, an appellant cannot simply speculate that the juror in question could have been biased against him. Thus, for example, we have held that an `ambiguously worded affidavit suggesting that the juror may have had knowledge he did not reveal during voir dire’ was insufficient to require reversal. Gordon v. Commonwealth,  916 S.W.2d 176, 179 (Ky.1995). This is because `[i]n circumstances where no challenge is made to juror qualification prior to or during trial and the challenge first occurs after rendition of a verdict, a party seeking relief from the effect of the verdict bears a heavy burden.’ Id. And, as a result, “[i]t is incumbent upon such a party to allege facts, which if proven to be true, are sufficient to undermine the integrity of the verdict.’ Id. Unlike in Gordon, the Appellant in this case has shown that the juror gave a false answer, or at least has placed in the record sufficient evidence of the answer's falsity to require further inquiry (such as to confirm that the Facebook account actually belonged to the juror), which the trial court in this case showed no interest in pursuing. Yet this Court has repeatedly held that false answers given by jurors during voir dire, even when that fact is not discovered until after trial, raise substantial constitutional issues. 
Sluss v. Commonwealth, supra.
The Supreme Court went on to explain that
[d]espite the fervor with which our cases have condemned even innocent falsehoods by jurors uttered during voir dire, there is still the requirement in Combs and other cases that the information was not discoverable or could not reasonably have been determined prior to the selection of the jury. In his motion for a new trial, Appellant did not assert that he was unable to discover the `friendship’ between the jurors and April Brewer prior to the verdict or that one of the jurors lied when she claimed not to have a Facebook account. Indeed, the case law regarding RCr 10.02 and RCr 10.06, the ostensible bases for Appellant's motion, requires that this information not be reasonably discoverable before the conclusion of the trial. 
The shortcomings of Appellant's motion, however, are understandable. Whether being a person's Facebook `friend’ standing alone can disqualify a juror is a question this Court has not been called upon to answer, nor has the Court previously considered the impact of an online `friendship’ between a juror and someone closely involved in a criminal case. More broadly, it is the first time that the Court has been asked to address counsel's investigation of jurors by use of social media. Without precedential guidance, Appellant's failure to demonstrate in his motion for a new trial why this evidence could not be discovered prior to the verdict is excusable since there was little reason for him to think he needed to investigate a juror's Facebook account or that he even could have done so ethically given the state of the law at the time of trial. Moreover, Appellant was not on notice that such an investigation was necessary on the basis of Virginia Matthews' unequivocal denial that she was a member of Facebook, and both jurors' failure to state that they knew April Brewer. There is further an unsettled question about the extent to which counsel for a criminal defendant may investigate jurors during or after trial. The question generally involves whether the attorney engaged in inappropriate “communications” with a juror, such as adding the juror as a “friend” on Facebook directly through his own account or through a form of deception, or whether the information was truly public. If the information about a juror is available to the public on a social media site, ethics opinions from other jurisdictions suggest that counsel may investigate that information. See, e.g., N.Y. Cnty. Lawyers Ass'n Comm. on Prof'l Ethics, Formal Op. 743 (May 18, 2011), available at Files/Publications/Publications1450_0.pdf. Given many attorneys' unfamiliarity with the minutiae of social media, it is not unreasonable for an attorney to be cautious as to his conduct while investigating jurors during the trial. In fact, there is evidence that, while the practice of conducting intensive internet vetting of potential jurors is becoming more commonplace, `lawyers are skittish about discussing the practice, in part because court rules on the subject are murky or nonexistent in most jurisdictions.’ Brian Grow, Internet v. Courts: Googling for the Perfect Juror, Reuters (Feb. 17, 2011), http://us., in order to discover the evidence in the present case, Appellant would have had to gain access to April Brewer's list of friends, which might or might not be private, and then to access the two jurors' information to verify their identities. While much of this information is likely public, a reasonable attorney without guidance may not think this investigatory tactic appropriate, and it is still such a new line of inquiry that many attorneys who themselves are not yet savvy about social media may never even have thought of such inquiry.
Sluss v. Commonwealth, supra.
Finally, the Supreme Court concluded the opinion with these comments:
The Appellant has not yet had an adequate opportunity to question the two suspect jurors in this case. Though the Appellant did not specifically ask to question the jurors when his motion was argued, the judge actually ruled on the motion before defense counsel had a chance to argue it, though the court then withdrew the ruling, allowed the attorney a few minutes to argue, and summarily denied the motion. However, the Appellant has included in the record sufficient evidence that one of the jurors appears to have lied explicitly (about having a Facebook account) during individual voir dire and that both jurors may have lied by omission when they failed to respond to the general voir dire question about whether they knew anyone involved in the case. Appellant has also raised significant questions about the kind of information these two jurors might have seen on the mother's Facebook page, which could create bias sufficient to require a full hearing on these issues.
 Consequently, given the state of the record, this Court is not able to resolve the factual issues presented by this case. Indeed, the proper forum for those issues is the trial court. While Appellant has not yet demonstrated that his convictions were tainted by unfairness at trial so as to require reversal, he has established to this Court's satisfaction that further proceedings are required.
 Having reviewed various options, it is clear that this case requires a remand for a hearing similar, in some respects, to the retrospective competency hearing process laid out in Thompson v. Commonwealth, 56 S.W.3d 406, 410 (Ky.2001), overruled in part on other grounds by Padgett v. Commonwealth, 312 S.W.3d 336 (Ky.2010).
Sluss v. Commonwealth, supra.

At some time after this opinion was issued, Sluss brought another appeal to the Kentucky Supreme Court, which issued another opinion addressing his arguments in that part of the case. Sluss v. Commonwealth, 450 S.W.3d 279 (2014). 
In the 2014 opinion, the Supreme Court explained that
Sluss's second argument involved a novel issue of law in Kentucky relating to possible interaction between jurors and persons closely affiliated with a criminal case over social-media sites such as Facebook. Ultimately, this Court held that it did not have sufficient information relating to the nature and scope of the social-media interaction between two jurors and the murder victim's mother to determine its prejudicial effect. Accordingly, the case was remanded to the trial court to conduct a hearing on the matter and to determine whether Sluss was entitled to a new trial. 
On remand, the trial court conducted two hearings and concluded that the jurors should not have been struck for cause and that Sluss was not entitled to a new trial. Slussh as now appealed that decision as a matter of right, and has asked the Court to address the remaining issues it had previously held in abeyance. Ky. Const. sec. 110(2)(b). Since we are reversing on another ground and the issue of the two jurors will not occur in a retrial, we will not address this issue in detail. Suffice it to say that the record reveals that only one definitively false statement was made by a juror: that juror Matthews said she did not have a Facebook account at the time of voir dire when she did. The trial judge determined that this falsehood was inadvertent. The other inconsistencies that Sluss alleges are only speculative inconsistencies and are not relevant to the matter at hand. We find that the trial court amply explored the issue on remand and its findings were sufficient to properly deny the motion for new trial on that issue.
Sluss v. Commonwealth, (2014), supra. 

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