Scheindlin Considers Pledge for Jurors on Internet Use

Judge Considers Pledge for Jurors on Internet Use
The New York Times by Colin Moynihan  -  September 19, 2011

As a federal judge looked over lists of proposed questions for prospective jurors in the case of Viktor Bout, a Russian businessman accused of planning to sell weapons to Colombian rebels, one question suddenly stood out to her: “Do you go on the Internet?”  That question, rhetorical as it might seem nowadays, prompted the judge, Shira A. Scheindlin of Federal District Court in Manhattan, to muse aloud about problems caused by jurors who look up information in cyberspace to supplement evidence presented in the courtroom.  “I am keenly aware that there are convictions set aside all over the country when we learn later during deliberations a juror looked up the keyword or the key name,” the judge said at the hearing, held this month. “We in the judiciary have been discussing this.”  A few moments later, Judge Scheindlin told the lawyers that she would write a pledge that jurors might be required to sign, promising that they would not turn to the Web to look up Mr. Bout or anything related to his trial until it was over.  Those who signed the pledge, Judge Scheindlin said, would be subject to perjury charges if they broke the agreement.  While it is not clear whether other judges have used similar measures, several lawyers and experts said they did not know of any other instances.  “I have never heard of a judge asking jurors to sign a pledge or any kind of written document,” said Tara Trask, the president of the American Society of Trial Consultants, who commended Judge Scheindlin for a “forward-thinking idea.”  Jurors rendering a verdict may consider only evidence presented during a trial, and judges have tried to ensure that deliberations are not contaminated by outside information.  Juries are typically instructed not to read newspaper articles or watch television programs about the cases they are involved in. Judges now often add instructions telling jurors not to research cases on the Web, but the ubiquity of laptops, smartphones and other devices has made it easier and perhaps more tempting for jurors to do exactly that.  In the Bout case, defense lawyers immediately endorsed Judge Scheindlin’s idea. Prosecutors appeared more reluctant to embrace the possibility of a pledge, saying they thought an oral directive could suffice.  But some legal scholars wondered whether the normal instructions were effective in preventing jurors from doing Internet research.  “I think it is inevitable that courts will have to do something more than simply ask jurors not to look at what is available to them every time they turn on the computer,” said Suzanne B. Goldberg, a professor at Columbia Law School.  Over the last few years, some lawyers have begun using the phrase “Google mistrial” to refer to cases disrupted by jurors searching the Web.  One of the more notable examples took place in Florida in 2009, when a judge declared a mistrial in a federal drug prosecution after learning that nine jurors had used the Web to research the case.  The Bout trial would appear to offer particularly rich fodder for independent research.  Mr. Bout, who has pleaded not guilty, is accused of agreeing to sell millions of dollars’ worth of weaponry, including surface-to-air missiles and AK-47s, to federal agents posing as members of the Revolutionary Armed Forces of Colombia, or FARC. The agents claimed that they wanted the arms to use against American pilots monitoring drug trafficking.  Mr. Bout, a former Soviet air force officer who speaks several languages, is considered by many to be the world’s biggest arms dealer and has been referred to by some as the Merchant of Death.  He is thought to have provided the basis for the 2005 film “Lord of War,” in which Nicolas Cage portrays a weapons seller pursued by Interpol.  In pretrial hearings, Judge Scheindlin and the lawyers in the case have carefully carved out which parts of Mr. Bout’s history will be presented to the jurors and which parts will be left out.  The judge has said, for instance, that she will not allow the mention of countries like Libya, Liberia and Rwanda, which have come up in connection with Mr. Bout, because references to those nations could prejudice the jury.  During the hearing this month, Judge Scheindlin told the lawyers that she wanted to figure out a practical way of dissuading jurors from doing searches that would violate the parameters she had agreed upon with the lawyers.  “I can’t seize their computers and their BlackBerrys,” she said. “I can’t lock them up. I can try to intimidate them.”  It remains to be seen how well a pledge, if instituted, might work, said Stephen Gillers, a professor at New York University law school.  “Judge Scheindlin apparently believes that the affirmative act of actually signing a specific pledge may more dramatically impress jurors with their duty and increase the likelihood of obedience,” Professor Gillers wrote in an e-mail message. “I think she’s correct. It can help and certainly can’t hurt.”