After a jury convicted Clare Werner “of twelve counts of
larceny in excess of $250, in violation of [Massachusetts General Laws chapter]266, § 30(1),” she appealed, arguing, in part, that the trial judge erred in
not granting her a new trial. Commonwealth v. Werner, __ N.E.2d __,
2012 WL 1503256 (Massachusetts Court of Appeals 2012).
This, according to the opinion, is how the prosecution
arose:
During fiscal year 2005, [Werner] was a
bookkeeper in the student accounts office of Bridgewater State College, which handled payments for
students' tuition and fees. When tellers received payments in cash or by check,
they logged them into a computerized accounting system and placed them in
sealed bank deposit bags with deposit slips. The defendant was responsible for
processing the deposit bags.
On
numerous occasions between July, 2004, and June, 2005, [Werner] opened deposit
bags, took the cash that was to be deposited, and replaced it with an
equivalent amount in checks from incoming student payments that she had
previously held back. If the replacement checks did not exactly total the
amount of cash she removed, [she] would include a personal check from her own
account in the amount of the difference, typically a relatively small sum.
She would then alter or rewrite the
deposit slips to match the changed contents of the bags. The total amount of
the thefts was approximately $355,000. When questioned by investigators, [Werner]
admitted to stealing money from the accounts two or three times per week, in
totals of between $600 and $700, and once taking $8,000.
Commonwealth v.
Werner, supra.
As noted above, Werner went to trial on the twelve larceny
counts and was convicted by a jury. Commonwealth v. Werner, supra. The “evening after the guilty verdicts were
returned,” her defense attorney, having previously read general media reports
about improper use of social media by jurors,” tried to look the jurors up on
Facebook. Commonwealth v. Werner, supra.
Two of the jurors – “Juror A and Juror B” had open profiles,
meaning they were
accessible to any Facebook member. [Werner’s
lawyer] discovered that on March 30, 2009, while jury selection was ongoing,
Juror A had posted: `[I] had jury duty today and was selected for the jury. . .
. Bleh! Stupid jury duty!’ Juror A received
three responses, one of which stated: `Throw the book at 'em.’ As the trial
progressed, Juror A posted about sitting for long hours and her desire to
complete the trial. At one point another juror, Juror C, who had been
`friended’ by Juror A during the trial, responded to her, saying, `[H]opefully
it will end on [M]onday. . . . ‘
Also . . . on March 30,
Juror B posted at 8:05 A.M.: `Waiting to be selected for jury duty. I
don't feel impartial.’ A person responded, `Tell them “BOY HOWDIE, I KNOW THEM
GUILTY ONES!”’ Later that day at 4:54 P.M., Juror B posted again: `Superior
Court in Brockton picks me . . . for the trail[ sic ]. The[y]
tell us the case could go at least 1 week. OUCH OUCH OUCH.’
Juror B's wife replied to this at
9:37 P.M. `Nothing like sticking it to the jury confidentiality clause on
Facebook. . . . Anyway, just send her to Framingham quickly so you can be home
for dinner on time.’ Later that evening, another of his friends responded: `I'm
with [Juror B's wife] . . . tell them that you asked all your F[ace] B[ook]
friends and they think GUILTY.’
Commonwealth v.
Werner, supra.
As I’ve noted in earlier posts, and as this source explains
in detail, juror misconduct is the term that is used to refer to actions by
jurors that are inconsistent with their role in a criminal trial, the most
important aspect of which is that they serve as neutral and impartial finders
of fact who decide the defendant’s guilt or innocence based solely on the
evidence presented at trial. And a the second
source cited above also explains in detail, it is the trial judge’s duty to ensure
that the jurors perform discharge their role in an appropriate fashion; if
possible juror misconduct is brought to the judge’s attention, he/she is
obliged to investigate.
Thatt is what happened in this case: Werner’s attorney filed a motion for a new
trial, based on what appeared to be juror misconduct; the trial judge then held
an evidentiary hearing, at which Juror A and Juror B testified. Commonwealth
v. Werner, supra. At the hearing Juror A
was asked whether `during the very
beginning of the case . . . through the receiving of the jury verdict, you may
have gone online and posted some information regarding this case.’ She
responded, `I don't believe I did.’ She was then shown the posting that
described her feelings about being selected and recalled the posting and the
responses.
She explained that the postings were
from people `sympathizing with . . . having to spend time sitting on a jury.’
She acknowledged `friending’ Juror C and another juror but said she had not
sent any electronic mail messages (e-mails) or instant messages to them during
the trial.
Commonwealth v.
Werner, supra. Juror B testified
that was the
author of the postings. He also
testified that he did not recall seeing the `BOY HOWDIE’ response to his
8:05 A.M. posting or any other responses to that posting. When asked
about his wife's response to the 4:54 P.M. post, he denied he had
told his wife `the details of the case, the name of the defendant, anything that
was presented as evidence.’ He suggested she may have learned about the case
through `public records.’
He also testified that he did not reply
to any of the responses to his 4:54 P.M. posting, although he did see the first
three responses. Nor could he specifically recollect going back to Facebook
between the 4:54 P.M. posting and the end of the trial. He testified
that `after the trial when I became aware of the controversy, I deleted my
wall.’
Commonwealth v.
Werner, supra.
The trial judge denied Werner’s motion for a new trial
because she found that “`“no evidence adduced at the hearing supports the
defendant's claim that either Juror A or Juror B was exposed via the Internet
to any extraneous matter.’” Commonwealth
v. Werner, supra. So the judge found
that neither juror’s impartiality was compromised by their exposure to
information that was not introduced into evidence at Werner’s
trial, which meant that there was no evidence of juror misconduct warranting a
new trial.
As noted above, Werner appealed, claiming the trial judge
abused her discretion in denying the motion for a new trial. Commonwealth
v. Werner, supra. The Court of
Appeals began its analysis of Werner’s argument that she was entitled to a new
trial by outlining the applicable law:
[W]hen a defendant claims she was
prejudiced by a juror's communications with outside parties during trial, she `bears
the burden of demonstrating that the jury were in fact exposed to ...
extraneous matter. Commonwealth v. Fidler, 377 Mass. 192, 385
N.E.2d 513 (1979). . . . She must
satisfy this burden of proof by a preponderance of the evidence. Commonwealth
v. Kincaid, 444 Mass. 381, 828 N.E.2d 45 (2005).
Defense counsel is also in a sensitive
position in satisfying this requirement, as counsel is not permitted to
independently contact jurors. Commonwealth v. Fidler, supra. If the
defendant does establish the existence of extraneous influences, the
Commonwealth must demonstrate beyond a reasonable doubt that the extraneous matter
did not cause her prejudice. Commonwealth v. Fidler, supra.
Commonwealth v.
Werner, supra.
Werner did not argue that, “on the record before the judge
when she decided the new trial motion, there was sufficient evidence to
establish that the jury learned of relevant `information not part of the
evidence at trial.’” Commonwealth v.
Werner, supra (quoting Commonwealth v. Guisti, 434
Mass. 245, 251, 747 N.E.2d 673 (2001)).
She acknowledged that “the postings, responses, and testimony of the
jurors reveal no extraneous information.”
Commonwealth v. Fidler, supra.
Werner argued, instead, that she was “deprived of the opportunity to
develop evidence of an extraneous influence” on the jurors. Commonwealth
v. Werner, supra.
When Werner’s defense attorney filed the motion for a new
trial, he also asked the judge to “subpoena records from Facebook concerning
postings and messages to and from [Jurors A and B] regarding their jury
service.” Commonwealth v. Werner, supra.
The judge issued the subpoena but by the time the evidentiary hearing
began, “Facebook had not responded to the subpoena or telephone calls from the
court.” Commonwealth v. Werner, supra.
As noted above, the judge went ahead anyway. Commonwealth
v. Werner, supra.
Werner argued that the judge erred in ruling on the new
trial motion “prior to receiving the materials subpoenaed from Facebook.” Commonwealth
v. Werner, supra. According to
Werner, Massachusetts precedents “compel[led] the judge to undertake further
investigation because the jurors' Facebook postings cast doubt on the
truthfulness of their testimony at the evidentiary hearing.” Commonwealth
v. Werner, supra.
The Court of Appeals reviewed the relevant precedents and
concluded that they did not
require that the trial judge go beyond
the questioning of jurors in the instant case. . . .Where there is a colorable
showing of extraneous influence, the judge is neither compelled to go beyond
juror questioning nor curtailed from doing so. . . . The scope of the judge's
postverdict inquiry is determined by the postings and responses themselves, the
medium in which the postings appeared, the evidence of extraneous influence
uncovered, if any, and the credibility of the testifying juror, as determined
by the evaluating judge.
Commonwealth v.
Werner, supra.
The Court of Appeals then found that the judge in this case
“clearly understood the scope of permissible inquiry” and “did not err in
concluding that the postings contained no evidence of extraneous influence.” Commonwealth
v. Werner, supra. It explained that
the postings in this case “involved the type of `attitudinal expositions’ on
jury service, protracted trials, and guilt or innocence that fall far short of
the prohibition against extraneous influence.”
Commonwealth v. Werner, supra. It also noted that they did not
in any way reveal “specific facts not
mentioned at trial concerning one of the parties or the matter in
litigation.” Commonwealth v. Fidler, supra. Moreover, the postings
made during the trial contained no case-specific information whatsoever. . . . Anyone
viewing the jurors' postings on Facebook would have had no idea of the name of
the defendant, what crime she was accused of committing, or what the trial was
about. Thus, it is not surprising that the responses were equally nonspecific.
Commonwealth v.
Werner, supra.
The court also concluded that it could not “reasonably” be
said that the trial judge erred in
her assessment of the credibility of
the witnesses' testimony. . . . She found that `no evidence adduced at the
hearing supports the defendant's claim that either [Juror A] or [Juror B] was
exposed via the Internet to any extraneous matter.’ Implicit in that finding
was her crediting both witnesses' testimony to that effect. In regard to Juror
B, where questions were raised regarding his truthfulness, the judge carefully
wrestled with both his statements and his omissions.
Where the judge considered Juror B's
testimony less than fully forthcoming, she so stated. For example, she
recognized in her findings that Juror B had `informed his wife on the first day
of trial that he was a juror in a criminal case and that the defendant was
female.’ She did not discredit the remainder of his testimony.
Commonwealth v.
Werner, supra.
The court also noted that, “there was overwhelming evidence
of guilt here, including admissions by [Werner] that she had stolen money on
numerous occasions”, which meant that “[e]ven if an extraneous influence had
been discovered, the Commonwealth likely would have been able to prove [Werner]
was not prejudiced.” Commonwealth v. Werner, supra.
It therefore held that because Werner “could offer only
unsupported speculation that the desired subpoenaed documents might include
previously undisclosed communications of extraneous information to the jurors”,
it was “within the judge's broad discretion to deny the motion for new trial
without awaiting Facebook's response to the subpoena.” Commonwealth v. Werner, supra.
For this and other reasons, it affirmed Werner’s conviction and
sentence. Commonwealth v. Werner, supra.
According to the news story you can find here, the trial judge sentenced her
to three years in state prison plus five years of probation.
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