Court denies juror's request to keep Facebook post private

Rachel Costello | Privacy | Feature | February 11, 2011

A California appellate court denied Thursday a request to overturn a Sacramento trial court order requiring a juror to consent to Facebook's release of the online postings made by the juror while he served as the jury foreperson in a criminal trial. The juror's attorney vowed Friday to continue to challenge the order in court.

According to a court filing, Arturo Ramirez was the juror foreperson in a case in which alleged gang members were charged with beating a man in 2008. Ramirez took to his Facebook while the trial was still in progress and wrote “Back to jury duty can it get any more BORING than going over piles and piles of metro pcs phone records. . .uuuuughhhh.”

Attorneys for the defendants in the case learned of Ramirez's posting shortly after their clients were convicted. The defendants asked the trial court to unseal the addresses and contact information for all the jurors in order to investigate claims of juror misconduct. Instead, the court conducted an evidentiary hearing where it found Ramirez truthfully did not believe his Facebook postings were in violation of the court's admonition not to discuss the case.

The defense attorneys then issued subpoenas to Facebook and Ramirez for records from the social networking site. Facebook refused to turn over the information and Ramirez challenged the subpoena in court. Sacramento Superior Court Judge Michael P. Kenny ordered Ramirez to sign an order that gave him 10 days to "execute a consent form" that would allow "Facebook to supply the postings" in question. Ramirez faces being held in contempt of court if he does not comply with the order.

Ken Rosenfeld, the attorney for the juror, appealed the trial court's order Tuesday and requested an immediate stay. The appeal stated that the court's order violates his client's Fourth Amendment rights, because Ramirez has a legitimate expectation of privacy in his records, and his Fifth Amendment rights, because the court "is in effect compelling petitioner to waive his Fifth Amendment right against self-incrimination" by compelling him to hand over his Facebook posts. Finally, the writ asserts the juror has a constitutional right to privacy in his electronic communications under the Federal Electronic Communications Act.

The California Court of Appeal denied the appeal Thursday without explanation.

Rosenfeld stated Friday that he plans to seek further review in the California Supreme Court. "We are taking this seriously," he said. He also intends to file a civil rights action in federal district court in Sacramento.

"We will fight on every ground, on every battlefield to protect the constitutional rights of my client and his right to privacy, we're just getting started," Rosenfeld said. "This involves the most critical issues that we have in society, for a juror to not be intruded upon, to not have their privacy intruded upon to such a degree that they're not going to want to serve or that their service will be somehow affected."

With the rise of social media and blogging, incidents in which jurors voice their opinions on cases online have raised concerns about privacy conflicting with the right to a fair trial. Last October, the Supreme Court of Florida banned jurors from posting about trials on websites. In August, a judge in Detroit removed a woman from a jury and later fined her after she wrote on her Facebook that the defendant in the case was guilty – before the prosecution finished its argument.

Additional reporting by Lyndsey Wajert