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From the Spring 2009 issue of The News Media & The Law, page 28. “There is no evidence to show…

From the Spring 2009 issue of The News Media & The Law, page 28.

“There is no evidence to show that Cornelius was involved in the 1997 home robbery,” said one attorney. . . . The jury is now in their fourth hour of closing arguments in a trial that’s lasted four weeks. . . . Judge Marten drew the names of the four alternate jurors out of a cup.

By the end of a sweeping federal racketeering trial in March, Wichita Eagle reporter Ron Sylvester had typed out 80 inches of text fragments — action, context and details — in live courtroom coverage of the case. Stories in the Kansas newspaper rarely top 25 inches, he said, but this time, thanks to a judge’s ruling, readers could follow Sylvester’s full account online through Twitter, the micro-blogging tool.

A month earlier, U.S. District Judge J. Thomas Marten gave Sylvester the OK to “tweet,” or post live Twitter updates, straight from the trial. The Kansas newspaper reporter had used Twitter in state courtrooms before, starting with a 2007 capital murder case. But Marten’s blessing signaled a key inroad for technology-enabled transparency in the notoriously camera-shy federal courts.

Indeed, that the judge had to issue a formal order is itself a sign of how staunchly resistant the federal judiciary has been to live digital or recorded coverage from courtrooms. Even cell phones are often banned from the premises. But in isolated cases around the country, amid a politician-and-celebrity-fueled Twitter craze, federal judges, too, seem to be opening up.

In March, U.S. District Judge Federico Moreno, of the Southern District of Florida, responded to a Palm Beach Post request with an administrative order saying that while reporters could not post live Web updates from within courtroom walls, they were free to step outside to the hall and do so. No longer would a reporter have to run outside, grab a minute on a cell phone — which itself was banned from the courthouse — and then have to go back through security to return to the courtroom.

In January, Iowa federal Judge Mark Bennett allowed a Cedar Rapids Gazette reporter to blog from a tax fraud trial, provided that she sit toward the back of the courtroom, which he explained was to cause minimal distraction with her typing. Bennett said transparency is lacking in his branch of government, something he thinks could be remedied, at least in part, by enabling the media to cover court cases differently.

“While the public are obviously allowed in the courtroom, for many people, that’s not how they want to learn about what goes on,” he said.

For Sylvester, the decision to use Twitter was all about getting the news to readers in timely fashion. The reporter said he used to send live courtroom e-mail updates to his editor, who, as soon as possible, would post them to the newspaper’s Web site. Still, that process took a while.

“Updates weren’t coming fast enough and they weren’t coming often enough,” Sylvester said. “But generally, [readers] liked the idea of being able to follow a court case throughout a day.”

So when the 2007 murder trial came around, the Eagle staff decided to take a new approach to their Web coverage. Since Twitter posts have a 140-character limit, Sylvester would have to write more frequently, which in turn would keep readers updated, he explained. The Eagle’s content manager set up the Twitter account so that it would feed Sylvester’s posts directly into the newspaper’s Web site — and the paper’s Twitter reporting plan took shape.


Misgivings and hurdles

For all the immediate timeliness Web reporting provides, opponents of allowing it in the courtroom wonder what it is good for. F. Montgomery Brown, the defense attorney in the tax fraud trial, said he was not aware of Bennett’s decision to allow live blogging until the second day of the trial, at which point, he said, he had little opportunity to react. After the proceeding was over, Brown said, he looked over the reporter’s coverage and felt it was unfairly subjective.

“It wasn’t gossip,” he said, “but there’s a certain amount of interpretation being done there.”

Bennett said he regretted not allowing the attorneys in the case, such as Brown, to weigh in on the blog matter before he issued a ruling on it. But Brown’s complaint is directed at the reporter, the judge pointed out, not the blog medium per se. Bennett said he has worked in First Amendment law, and shares Brown’s sentiment that journalists have the right to report and, in lockstep, “the duty to get things right.”

Even so, Brown said his larger concern is the impact of Twitter in the jury room.

To be sure, journalists are hardly the only ones making headlines for their courtroom tweets. A cursory search for “jury duty” on Twitter yields plenty of results — several people posting on their lunch breaks, one bored juror wishing she had brought a book to jury duty, and several other evidently innocent musings.

Those kinds of online posts — broadly describing the jury duty experience, without delving into a particular case — are generally harmless in the eyes of a court. But sworn-in federal jurors are typically instructed not to discuss a case outside deliberations, and are not allowed to research or read news about the case, since their verdict is supposed to be based on information presented in the courtroom, not outside it.

For example, the model jury instructions for federal courts in the Ninth Circuit, which includes California, even specify for jurors that “discussing the case in internet chat rooms or through internet ‘blogs,’ internet bulletin boards or e-mails” is unacceptable.

So when jurors toe the line between what is and is not allowed — not to mention in an area of technology that courts themselves are still trying to shed light on — concerns about fairness and the threat of a costly mistrial can arise.

In the March trial of former Pennsylvania state Sen. Vincent Fumo, juror Eric Wuest’s updates to his Facebook account prompted a defense attorney to suggest that the juror was essentially inviting online friends to discuss the trial with him — something that would constitute improper juror conduct.

That same month in Arkansas, attorneys for a building-materials company that lost a $12.6 million judgment after being found of mismanaging investors’ money, alleged that juror Johnathan Powell had communicated with others about the case.

In the end, neither Wuest nor Powell were reprimanded by judges. But Brown said it concerns him that live blogging is “just one more thing that may pique [jurors’] interest to go through and review” information about the case, on news sites or elsewhere.

Anne W. Reed, a lawyer in Milwaukee, said that courthouses are increasingly offering wireless capabilities in jury waiting rooms and courtrooms. But cell phones are able to access the Internet without wireless access, she pointed out.

While judges have been “awkwardly” scrambling to address these new technology-in-the-court issues, she said, it’s crucial that they clarify instructions to Blackberry-addicted jurors who live in an environment where a simple trip to the grocery store can compel an Internet update.

“What’s most problematic is that most of the jurors’ Internet activity, which is causing problems and drawing attention . . . could have been prevented before it happened,” said Reed, a jury consultant who writes on juries and the Web on her blog, Deliberations.

“If you don’t want jurors doing it, be specific,” she said. “Tell jurors where the lines are, because there’s a natural instinct for people to want to communicate.”

Some judges are starting to do just that. Bennett, the federal judge in Iowa, said in April he drafted new instructions on Twitter and Facebook for jurors.


Plodding ahead with the experiment

But could fear of live Web posts from the jury room ever translate into a ban on journalists using the tools to report from the gallery? Sylvester, the reporter, doesn’t think so. After all, he said, jurors are not supposed to be reading (or disseminating) news about their cases anyway.

“If people are going to defy court orders,” he said, “they’re going to do it whether I’m texting from the courtroom or not.”

For some in the judiciary, the noise created by typing is enough of a distraction to warrant a ban in the courtroom (court reporters excepted, of course). Moreno, the federal judge in Florida, explained his refusal to allow e-mail and text messaging in the gallery, saying in his order that they “violate the sanctity of the courtroom and disrupt judicial proceedings.”

Sylvester, who uses a pocket-sized wireless keyboard to blog from the courtroom, counters that “judges have told me they like my set-up because it’s not as intrusive” as a larger laptop computer.

But as Twitter becomes more mainstream, Reed, the trial lawyer, said it will likely gain widespread acceptance — even in federal court. If one were to poll judges now on the impact of Twitter in the courtroom, she said, “They’re not too enamored of it. . . . I strongly suspect that will settle down.”

And that could lead to a new opening for public scrutiny of the judiciary, which in turn, Sylvester said, would enhance confidence in the entire system.

Bennett, echoing that point, said he is not yet ready to issue a blanket order allowing journalists to blog every day from his courtroom. But he’s leaving the door open to change.

“I want to give it some more thought and experiment with it again — keep an open mind and weigh the pros and cons,” he said. “I think you can only do that if you try it.”