By Diana Hefley Herald Writer
EVERETT — A Snohomish County deputy prosecutor couldn’t bring himself to force a 6-year-old girl to take the witness stand again to testify against her father — the man accused of raping and molesting her.
The case was strong against the Bothell man. Eleven jurors had believed he was guilty before a mistrial was declared.
One juror had played by his own rules, ignoring repeated commands by the judge to only consider evidence presented at trial.
After the first day of testimony, the juror launched his own investigation. The defense lawyer had offered a theory during his opening statement that the girl had been coached. The juror went home, before ever hearing from the girl, and began researching online about witness coaching, court papers said.
His misconduct came to light during deliberations. Other jurors asked why he wasn’t convinced that the Bothell man was guilty. The man admitted he’d done his own research. His fellow jurors blew the whistle.
Superior Court Judge Richard Okrent questioned the man and later lectured him. The judge declared a mistrial.
Prosecutors considered whether to seek sanctions against the man.
“Initially I was angry, because I know what it takes to try these kinds of cases and I know what it puts victims through, but we don’t charge people to make a point or make someone an example. The damage was done,” Snohomish County Prosecuting Attorney Mark Roe said.
The case, however, highlights an increasing concern among lawyers and judges. Jurors, like many people these days, are accustomed to being connected by smartphones instantly to sources of information wherever they go. Technology makes it simple to check out the day’s headlines, join discussions on social media sites and Google any topic that piques a person’s interest.
About 85 percent of U.S. adults use the Internet, according to the Pew Research Center. About the same percentage own cell phones and more than half of those use their phones to go online.
Legal experts say the onslaught of technology in people’s daily lives increases the potential for jurors to read and hear information they’re ordered to avoid during trial.
“Jurors are facing a huge challenge with all this information literally in the palm of their hands,” Roe said.
It’s not just a problem in Snohomish County, but nationwide, Superior Court Judge Michael Downes said.
An Arkansas murder conviction was overturned after a juror, during the trial, posted about the case to his Twitter account. The Arkansas Supreme Court found that the man’s tweets, although one-sided, were public discussions. That’s a no-no and was enough for the court to find that the man’s failure to follow the judge’s order prejudiced the defendant.
There always have been instructions warning jurors not to seek outside evidence on their own, to inspect a crime scene, or to talk to anyone about the case, Downes said. Before being selected, jurors are questioned about whether they’ve been exposed to publicity about the case and whether that makes them unable to be impartial. Jurors are expected to decide a case solely on the information presented at trial and the laws judges instruct them to follow.
As Downes explained, the evidence is provided to both sides and everyone has a chance to investigate the information before it reaches a jury. The lawyers have the opportunity to interview witnesses and ascertain their reliability. Both sides can spend months and sometimes years investigating information. Based on the rules of evidence, judges decide what jurors can hear.
“There’s no reliability standard for what people post on the Internet,” Roe said.
There’s so much information out there and often times it’s just plain wrong, Everett defense attorney Karen Halverson said.
In the past, judges warned jurors to avoid stories in newspapers and radio and television broadcasts. Now, judges often have lengthy colloquies about what other sources of information jurors also should avoid, including Facebook, Twitter, blogs and text messages.
In their decision to reverse the murder conviction, justices on the Arkansas Supreme Court cited an opinion offered by the 3rd Circuit Court Appeals, which noted that “prejudicial communication may be greater when jurors comments on a blog or social media website than when she has a discussion about the case in person, given that the universe of individuals who are able to see and respond to a comment on Facebook or a blog is significantly larger.”
It isn’t unreasonable or unconstitutional for judges to require jurors to avoid the Internet during trials, University of Washington law professor Ryan Calo said.
“It’s reasonable, but I also think it’s difficult for jurors,” he said.
Downes said he doesn’t think it’s necessary for jurors to abstain from using the Internet during a trial. However, he does believe it’s a realistic expectation to ask to them to limit what they see and hear.
“The means of finding information may have changed, but the reason for the rules are still critically important,” Downes said.
Anecdotally, it appears more common for jurors to do their own research, the judge said.
He wonders whether it’s because people are used to having their questions answered instantly. They don’t need to go to the library to check out a book. They can just grab the smartphone in their pocket and type away.
“People may just be used to reaching for answers right away,” Downes said.
Snohomish County deputy prosecutor Andrew Alsdorf was left with a difficult decision after Okrent declared a mistrial in the child sex case. Based on the poll taken of the jury, Alsdorf was confident a second jury would convict the Bothell father if he took the case to trial a second time. However, he had to consider the victim, a 6-year-old girl, who already had endured sitting across from her father, telling a room full of strangers about the sexual abuse she suffered.
Alsdorf was compelled to negotiate a resolution that spared the little girl from having to testify again. He agreed to reduce the charges to three counts of incest, essentially reducing the man’s potential prison sentence from 15 years to five. If the man had been convicted of the original child rape and molestation charges, he also would have had to convince the Indeterminate Sentencing Board he was no longer a danger before being released from prison.
“The misconduct committed by one rogue juror who did not follow the court’s instructions in an effort to persuade his fellow jurors using methods specifically forbidden by the court, resulted in not only a mistrial but an injustice as well,” Alsdorf wrote. “It is truly unjust that the emotional fragility of the defendant’s daughter which the defendant helped create by sexually abusing her, is the primary factor that spared the defendant from retrial.”
There is no way to know how the juror would have voted if he hadn’t done his own research. Jurors disagree, and that’s the way the system is supposed to work, Calo said.
“Jurors give a voice to the public,” he said. “There’s all sorts of things that happen in the jury room.”
In this case, the juror crossed the line, Alsdorf said.
The Bothell father, who has maintained his innocence, agreed to a bench trial. Okrent on Friday found the man guilty and sentenced to him to five years in prison. The judge told the man he’d failed as a father and turned his daughter into a victim.
Meanwhile the girl’s mom criticized her ex-husband for breaking their daughter’s trust and refusing to accept responsibility for his actions.
“If we didn’t suffer a mistrial because of a reckless juror, he’d be in prison for 15 years,” the woman said.
Roe said it may be time to have a conversation about what more can be done to insulate jurors from outside influences while they’re impaneled, including ordering them to stay away from the Internet.
“I think we need to at least consider the next step,” Roe said.
The vast majority of jurors don’t engage in misconduct, Downes said.
Yet the judge recently was forced to declare a mistrial after a juror refused to return to court. She and the rest of the jury had deliberated for about two hours in a residential burglary trial. They were told to return the next day. Only 11 returned. The court’s jury coordinator called the woman, who said she simply wasn’t coming back.
Downes is considering whether to refer the case to the prosecutor’s office for possible charges against the runaway juror.
“We rely on people. They take an oath to follow the rules,” Downes said. “It’s a problem when people don’t take their jobs seriously.”
Diana Hefley: 425-339-3463; firstname.lastname@example.org.