Motion to Instruct Venireman and Jurors to Not Discuss or Research Using the Internet or Electronic Devices or to Seize Said Devices
Toby C. Wilkinson
CAUSE NO. _______________
THE STATE OF TEXAS	§	IN THE DISTRICT COURT
	§
V.	§	OF __________ COUNTY, TEXAS
	§
______________________	§	__________ JUDICIAL DISTRICT

TO THE HONORABLE JUDGE OF SAID COURT:
	COMES NOW the Defendant, ___________________, in the above-styled and numbered cause, by and through his attorney of record, Toby C. Wilkinson, and respectfully requests this Court instruct venireman and jurors to not discuss or research using the Internet or electronic devices and that this Court seize any hand-held devices. In support hereof, the defendant would show:
I.
	The Defendant has a right under the Due Process clause of the United States Constitution and the Texas Constitution to a fair and impartial jury that is free from outside information, and disseminating facts and/or information concerning the case to those not on the jury. 
II.
	In Wardlaw v. State of Maryland, 971 A2d. 331 (Md.Ct.Spec.App. 2009), the Maryland Special Court of Appeals overturned Zarzine Wardlaw’s conviction of charges of rape, child sexual abuse, and incest because a juror researched a diagnoses of oppositional defiant disorder online, and told the other jurors of the results. The Court of Appeals found that the online research “constituted egregious misconduct.”
	In West Virginia v. Cecil, 655 S.E. 2d 517 (W.Va. 2007), the West Virginia Court of Appeals reversed the conviction of Danny Cecil for felony sexual abuse because two members of the jury used MySpace to profile one of the alleged victims, holding that “any challenge to the lack of the impartiality of a jury assaults the very heart of due process.”
	In Deihl et al. v. Stoam Holdings et al. (an Arkansas case), it was discovered that one of the jurors was posting messages about the case on the social networking site Twitter.
	In Massachusetts, the Court of Appeals held
The trial judge properly instructed the jury not to do their own research and investigation. The instruction obviously encompassed Internet research as well, although juror fourteen either ignored or misunderstood the instruction. Regardless, given the simplicity, speed, and scope of Internet searches, allowing a juror to access with ease extraneous information about the law and the facts, trial judges are well advised to reference Internet searches specifically when they instruct jurors not to conduct their own research or investigations.
Commonwealth v. Rodriguez, 828 N.E.2d 556, 568 n.11 (Mass.App.Ct. 2005). 
And in New York the Court held, 
Acknowledging the easy availability of on-line information and the popularity of social websites, the Committee on Criminal Jury Instructions on May 5, 2009 (coincidentally, the same day as the Court’s preliminary instructions in this case) revised its “Jury Admonitions In Preliminary Instructions” to include specific instructions to jurors not to use “internet maps or Google Earth” as well as not to actually visit any place mentioned during the trial, not to use “the internet” to do any research about the case, and not to use “text messages, email, internet chat or chat rooms, blogs, or social websites, such as Facebook, MySpace, or Twitter” as well as face-to-face conversations to discuss the case.” 
People v. Jamison, 2009 WL 2568740 at *6 (N.Y.Sup., 2009).
The Citizen Media Law Project in their October 29, 2009, article noted the following cases::
In 2001, the Massachusetts Supreme Judicial Court remanded for further inquiry by the trial court a case in which a juror, halfway through the proscution’s case in a rape prosecution, had sent an e-mail to an 800-member listserv complaining about the disruption that jury duty was causing to her life, adding, “Just say he’s guilty and lets [sic] get on with our lives!” Commonwealth v. Guisti, 434 Mass. 245, 747 N.E.2d 673 (Mass. 2001). On remand, the trial court questioned the juror about the e-mail, and then rejected a defense motion for a new trial. The appellate court affirmed this ruling. Commonwealth v. Guisti, 449 Mass. 1018, 867 N.E.2d 740 (Mass. 2007). 
In 2006, the New Hampshire Supreme Court rejected a murder convict’s effort to overturn a guilty verdict based on a juror’s pretrial blogging, in which the juror said he was going on jury duty and, “now I get to listen to the local riff-raff try and convince me of their innocence.” “The meaning of the phrase ‘the local riff-raff’ is unclear on its face,” the court wrote in its decision. “What Juror 2 meant when he used that phrase is equally unclear. While this statement would reasonably have a negative connotation, we agree with the trial court that it does not constitute sufficient grounds to set aside the jury verdicts without further inquiry.” State v. Goupil, 154 N.H. 208, 908 A.2d 1256 (N.H. 2006). A federal court later rejected the defendant’s habeas corpus petition based on a similar argument regarding the juror’s blog postings. See Goupil v. Cattell, 2008 WL 544863, 2008 U.S. Dist. LEXIS 14774, 2008 DNH 46 (D.N.H. Feb 26, 2008). 
In a 2006 California burglary trial, the jury foreperson wrote several blog entries during the trial and deliberations, including a detailed account of the jury deliberations that led to a conviction. When the blog entries were discovered, the defendant asked for a new trial. The trial court denied this request, but an appeals court ordered the lower court to allow the jurors be questioned about the incident. People v. McNeely, 2007 WL 1723711 (Cal.App. 4th Dist. 2007) (unpublished), reh’g denied (July 3, 2007), rev. denied, No. S154577 (Cal. Sept. 12, 2007). Four jurors, including the foreperson, either consented to being interviewed or did not object. The defendant then renewed his motion for a new trial, which was again rejected by the trial court. The appeals court agreed. 
	Under the totality of the circumstances shown by this record, even when we factor in [Juror No. 8’s] decision to write in his blog during trial on one day about matters he had been instructed not to disclose, we conclude the evidence does not raise a “substantial likelihood” that Juror No. 8 (or any other juror) was actually biased against McNeely. 
People v. McNeely, No. D052606, 2009 WL 428561 (Cal.Ct.App., 4th Dist. 2009) (unpublished), rev. denied, No. S171530 (Cal. May 20, 2009). 
	Similarly, in 2007 an Ohio appeals court rejected an appeal by a defendant after a juror at his trial blogged, on the first day of trial, that “Serving on this case just goes to show how opinionated I am.” Two days later, after the jury had returned its guilty verdict, the juror wrote, “Basically, I feel like I was the only [person] playing devil’s advocate and presuming this guy was innocent.” State v. Goehring, 2007 WL 3227386, 2007 Ohio App. LEXIS 5169, 2007-Ohio-5886 (Ohio App., 6th Dist. 2007). 
	In a 2007 wrongful death case brought against a municipality after a man hung himself in the city jail, the Washington Court of Appeals rejected, among other arguments, the plaintiff’s claim that a juror’s blog entries about his ex­pe­riences dealing with suicide in his job as a youth minister contradicted his statement during voir dire that neither he nor any close friends or family members had ever been depressed or suicidal. Gregoire v. City of Oak Harbor, 141 Wash. App. 1016, 2007 WL 3138044, 2007 Wash. App. LEXIS 2929 (Wash.Ct.App. 2007), rev. granted in part, 164 Wash.2d 1007, 195 P.3d 86 (2008) (petition granted only on issue of jury instruction on contributory negligence and assumption of risk; oral argument scheduled for May 26, 2009). 
	In a 2008 decision, a California appeals court affirmed a trial court ruling that a juror sending a single text message during trial, which the juror said was not about the case, was no grounds for disqualifying that juror. People v. Fulgham, Cal.Ct.App. No. C057526, 2008 WL 4147562 (Cal.Ct.App. 3 Dist. 2008) (unpublished), rev. denied (Cal. Nov. 19, 2008). 
	Other cases with juror text messaging with similar results include State v. Falcone, 2008 WL 2222728 (Ariz. App., Div. 2 2008) (juror’s note asking judge to remind jurors not to text message during trial testimony is insufficient evidence that jurors did independent research); State v. Newman, 2007 ND 148, 738 N.W.2d 887 (N.D. 2007) (“there is no indication that there was any discussion about the trial during the cell phone usage [during trial breaks]”); and People v. Giarletta, 8 Misc.3d 1102(A), 856 N.Y.S.2d 25 (Table), 2007 N.Y. Slip Op. 52379(U) (N.Y. 2007, unpublished) (“it is clear that the text message [received by one juror and conveyed by that juror to other jurors] did not occur until after the rendition of the partial verdict, thereby negating any allegation that such misconduct could have created a sub­stantial risk of prejudice that is not otherwise academic”), rev. denied, 2009 NY Slip Op 61817(U) (N.Y. 2009) (unpublished). 
	More recently, in Arkansas the owners of a company facing a $12.6 million civil verdict sought a new trial after they discovered that a juror Twittered about the case before, during, and after the trial. The court denied the motion in early April. 
	The latest case of a juror communicating during trial came last month, when The New York Times reported that former Pennsylvania state senator Vincent Fumo, on trial for corrruption charges, sought a mistrial after a juror posted information on the case on Facebook and Twitter. The trial continued, and Fumo was convicted. See David Ardia’s recent blog entry for more on this case. 
	In another recent case, a New York woman pleaded guilty to a misdemeanor charge of attempted unlawful grand jury disclosure after she posted comments to a newspaper website about her experience several months earlier serving on a grand jury that refused to issue an indictment in the 2007 death of a man in police custody. http://www
.citmedialaw.org/blog/2009/web-justice-jurors-use-social-media
III.
	The Defendant would show that most Americans have access to the Internet including social networks such as Facebook, MySpace, Twitter, Yahoo, Hotmail, Google etc. at home and/or using their cell phones, lap tops, and desktops.
IV.
	The Defendant requests the Court instruct the jury panel and the jurors not to use the Internet to investigate or otherwise obtain information by way of research regarding any issue in the case nor to disseminate any information about the case to any person specifically, but not limited to Facebook, MySpace, Twitter or any other online social network. 
V.
	The Defendant further requests that the Court during deliberations seize from the jurors all electronic communication devices such as phones (e.g., iPhone or Blackberry,) iPods, sidekicks, laptops, and/or notebooks, etc. . . 
VI.
	The Defendant further requests that the Court ensure that the jurors do not have internet access while sequestered in a hotel during deliberations.
VII
	The Defendant further requests that the Court give the following Instruction:
You are instructed that the only evidence that you can consider is the testimony and the evidence that comes from the witness stand. This simply means that you can only consider the answers a witness gives in response to questions and any evidence, such as written documents, that is admitted into evidence for your consideration.
In times past, jurors have researched issues involved in their cases from outside sources, such as the internet, reference books, and friends or family members. This is absolutely prohibited.
The rule is simple. You are not to discuss the facts of this case with anyone nor do any independent research and when you deliberate, you must consider only the testimony given by witness and evidence introduced during trial.
	WHEREFORE, PREMISES CONSIDERED, the Defendant respectfully prays this Honorable Court grant this his motion to instruct venireman and jurors to not discuss and/or research any issue involving the trial using the Internet or electronic devices, to seize said devices, and limit juror access to the Internet while sequestered.

	Respectfully submitted,
	_______________________________
	TOBY C. WILKINSON
	Law Offices of Toby C. Wilkinson, P.C.
	State Bar No. 21497300
	P.O. Box 324
	2815 Wesley Street
	Greenville, Texas 75403-0324
	(903) 454-6096
	(903) 454-0446 Fax
	ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
	I hereby certify that a true and correct copy of the foregoing motion has been mailed or delivered to all counsel of record on this the 15th day of January 2010.
	______________________________
	Toby C. Wilkinson

NOTICE OF HEARING
	This matter is to be heard by the Judge of the ______th District Court of _______ County, Texas, on the ____ day of __________, 201__, at ______ o’clock __.m.

	____________________________
	Toby C. Wilkinson

CAUSE NO. _______________
THE STATE OF TEXAS	§	IN THE DISTRICT COURT
	§
v.	§	OF __________ COUNTY, TEXAS
	§
______________________	§	__________ JUDICIAL DISTRICT
ORDER
	On this the ______ day of ____________, 201__ came on to be heard Defendant’s Motion to Instruct Venireman and Jurors to not discuss or research using the Internet or electronic devices or to seize said devices, and the court having considered the same, it is hereby, in all things,
(GRANTED) IT IS THEREFORE ORDERED that the jury shall be instructed that they cannot use any electronic communication devices during the trial to discuss, research, or disseminate any information regarding evidence produced or testimony presented. 
IT IS FURTHER ORDERED that the Bailiff shall seize all electronic communication devices from the jurors during deliberation.
(DENIED) to which the Defendant excepts.

ENTERED and SIGNED this ___ day of _________________, 200____.

	_________________________
	JUDGE PRESIDING