May trial court order temporary removal of attorney’s website postings which could prejudice jurors?

Posted in: Constitutional Law, Trial Practice by Steven Vartabedian on

Easy access to social media and the Internet provide great learning and informational tools. But with these benefits have come abuses and challenges for many of society’s institutions, educational and judicial to name two. For educators, the challenge involves patrolling some students’ trying to cheat their way through their education. For judges, it is a matter of guaranteeing a fair trial where jurors are to decide cases based only on evidence presented in the court proceedings, and not from outside sources.

In Steiner v. Superior Court (filed and published 10/30/13) No. B235347, after jurors were impaneled, defendants Volkswagen and Ford moved the trial court to order that plaintiffs’ counsel remove from her website, until the conclusion of trial, two entries touting recent successes against Ford and others in similar asbestos cases. The first article discussed a $1.6 million award, boasting the jury there overcame “defendants’ court confusion” to finding them at fault. A second article listed a similar $4.3 million award. Defendants here claimed that the curious human nature of jurors might cause them to Google the attorney and become prejudiced by this provocative information. Plaintiffs and their counsel opposed the motion as infringing upon counsel’s right to free speech; that the more appropriate remedy would be to admonish the jurors to not search the Internet.

The trial court granted the motion and additionally admonished the jurors not to Google the attorneys, nor to use the Internet in any way. Plaintiffs petitioned the Court of Appeal, Second Appellate District, Division Six, for a writ of mandate, which was initially summarily denied. Petitioners petitioned for review in the California Supreme Court. The petition misstated that the trial court had ordered plaintiffs’ counsel to “take down her firm’s entire website,” but went on to say that even if the order was more limited, it would be unreasonable. The Supreme Court granted review and transferred the case back to the appellate court to issue an order to show cause. The appellate court did so, and concluded the order was an unlawful prior restraint on the attorney’s free speech rights under the First Amendment. Even though the order was limited (and not as plaintiff’s counsel had represented to the Supreme Court), and even under the lesser standard for commercial speech, the public interest in assuring a fair trial is adequately met by juror admonitions and instructions.

Because the order was no longer in effect, the Court of Appeal disposition of the writ petition was to deny it. Volkswagen had urged the court to dismiss the petition as moot, but the court agreed with plaintiffs that the public interest exception to mootness applied here; thus the court rendered its published opinion on the issue.

I think it is pivotal that all forms of “gag orders” are disfavored, unless there is no other effective means of protecting a fair trial. One certainly gets the feeling that the Court of Appeal found no pleasure in writing its opinion supporting the arguments of the plaintiffs here who misrepresented the facts to the Supreme Court. But the court dutifully answered a higher calling in addressing a matter of broad public interest. The critical point here is that our system places a great deal of confidence in jurors, that they must be presumed to be acting properly. Because it is presumed that jurors will obey a court’s admonition to avoid the Internet and other sources of outside information, that admonition is sufficient to serve the public interest in a fair trial. Should information develop to the contrary that any juror disobeyed the admonition, the offended party has a post-trial remedy against juror misconduct.

I also note the court’s opinion cites the widely-held view that the first line of defense against juror independent research is found in jury instructions. While instructions are a strong defense, I would suggest that counsel concerned about this issue protect against such activity even earlier–during jury selection. Get a commitment from potential jurors that they are able to restrain themselves from outside influence, including their hand-held devices. I might even suggest scanning the jury pool to see which persons are most strongly tied to those devices, and recognize those persons as possible peremptory challenges.

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