By Graham Winch
(CNN) — As convicted killer Jodi Arias awaits a retrial in the penalty phase of her case, her defense attorneys are asking a judge to make potential jurors turn over information about their Twitter accounts — a move that, one expert says, speaks to the influence social media can have on courtroom proceedings.
Richard Gabriel is a jury consultant with 28 years of experience and has worked on high-profile cases, including those of O.J. Simpson, Casey Anthony and music producer Phil Spector.
“[Social media is] incredibly powerful because it is a juror interacting in their natural environment. It’s them unedited, uncensored and not trying to couch things in way that’s politically correct. So you have a candid view of the juror, and it allows you to see how they view the world and how they express themselves,” he says.
Arias’ defense attorneys justified their request in a motion filed with the court, saying that during her first trial, they caught an alternate juror posting on Facebook about the defendant’s temper — despite explicit instructions from Judge Sherry Stephens prohibiting jurors from commenting about the trial on social media.
“If she [Arias] does have Latina blood, it may explain a temper lol,” Tara Kelley, Juror No. 17, wrote in the comment, posted May 14. This was after Arias was convicted but before the sentencing phase of her trial.
The attorneys also say Kelley was caught tweeting Mike Eiglarsh, a criminal defense attorney who has appeared numerous times on HLN and whom Arias’ defense calls a “member of the media.” Kelley appeared on HLN and denied the defense attorneys’ allegations that she was commenting about the case online.
Arias faces a retrial of the penalty phase of her case because the initial penalty phase ended with a hung jury. Her first-degree murder conviction for killing her ex-boyfriend Travis Alexander still stands and so does the original jury’s finding that Arias murdered Alexander in a “cruel manner.”
When the penalty phase retrial begins, a new jury will be selected, and those jurors will decide whether Arias will be sentenced to death via lethal injection or life in prison.
Stephens will hear arguments on the defense’s request regarding jurors’ Twitter accounts and other motions during a hearing set for September 16. Gabriel says Stephens could grant the defense’s motion, because social media has become a major concern for the U.S. courts. He says some judges even have their staffs monitor jurors’ social media accounts during trials.
“It’s this whole dynamic tension between jurors who clearly are very used to communicating in this particular way. The judge wants the jurors to not research the case. But, on an almost daily basis, jurors Google terms, they talk to their friends. So, they are so used to doing this stuff, that oftentimes they do slip up,” Gabriel says.
In most cases, the process of monitoring a potential juror’s social media accounts begins as soon as the attorneys get the list of names in the jury pool, according to Gabriel.
If you’re an attorney, “you’re doing a Facebook search, you’re doing a Twitter search, and other things to get you something fast,” he says. “Because in a typical scenario, you’re showing up, the judge is bringing the jurors in, you get the list and you’re picking a jury that day or in two days. When you’re lucky, you have overnight and you can do searches. So you get interns or anybody in the office who can do the search quickly,” Gabriel says.
Jurors aren’t the only ones in a courtroom who can get in trouble with social media. Attorneys aren’t allowed to circumvent privacy settings on jurors’ social media accounts or communicate with the jurors outside of the courtroom. If they break these rules, there can be serious repercussions, Gabriel says.
“If you cross the line, you can be thrown in jail. The attorneys are officers of the court. They know any attempt to contact a juror can be construed as jury tampering. So, most of the time you are not going to get thrown in jail, but you could be sanctioned or [subjected to] a punitive measure that the judge makes the ruling on because of how you deal with this,” Gabriel says.
“If you find something about a jury and have crossed the line, [the judge] could say I’m keeping this juror, you can’t keep them off now. So, there’s all sorts of bad ramifications for doing this and crossing the line. In the worst-case scenario, the judge could throw you in jail.”
Gabriel says he hasn’t seen someone deliberately use social media to dodge jury duty yet, but it’s possible. He says he’s seen potential jurors do some crazy things to avoid getting picked.
“I worked on the Enron broadband case in Houston. And the judge sent out questionnaires ahead of time. One of the [potential] jurors wrote all over his questionnaire, ‘I don’t give a [expletive],’ like a number of times,” he recalls.
The potential juror also wrote on his questionnaire that he couldn’t be fair or impartial, because he didn’t like “black people or Mexicans,” according to Gabriel. It turned out that the federal judge presiding over the case was a black woman. She told the attorneys that the potential juror in question wasn’t going to serve, but made him wait until the end of the day — after they had selected a jury — to come before her.
“We had a 12-hour juror selection that day. We pick our jury. And finally, she calls this guy up and you can see him go pale white when he sees the judge,” Gabriel says. “And she basically reads him the riot act. And it was clear he just wanted to get out of jury service. Literally, this guy is weeping. She asks, ‘Do you think your son would be proud of you for trying to get out of jury duty and for writing these kinds of statements?’ And he starts crying. And she says this is ‘serious business.’ So, people do it all the time,” Gabriel says.
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