Judges with the U.S. Court of Appeals for the Fourth Circuit are hearing oral arguments today on former West Virginia Justice Allen Loughry’s claim that a juror in his federal fraud case was unduly influenced by social media.
The hearing will be conducted virtually at 2 p.m by federal appeals judges Paul Niemeyer, Albert Diaz and Marvin Quattlebaum.
It focuses on whether the district court in Charleston erred by denying an evidentiary hearing based on a juror’s Twitter usage during Loughry’s 2018 criminal trial.
Loughry’s attorneys are asking for that ruling to be reversed and for an evidentiary hearing to examine the matter further.
A jury found the former state Supreme Court justice guilty of 11 charges of mail and wire fraud, witness tampering and making a false statement to a federal investigator. U.S. District Judge John Copenhaver later acquitted Loughry on the witness tampering charge.
Loughry has been serving a sentence of two years, first at a federal facility in South Carolina. For the past few months, Loughry has continued to serve his sentence at a federal halfway house headquartered in Baltimore. His sentence is set to conclude this Dec. 16.
His appeal focuses on the social media habits of a particular juror, described as Juror A.
When jurors were selected, they were asked about their familiarity with the allegations against Justice Loughry, which had received heavy coverage, including during an impeachment process at the state Legislature.
At the conclusion of jury selection, Judge Copenhaver issued a blunt warning to stay off social media.
“During the trial you must not conduct any independent research on this case,” Copenhaver instructed.
He rattled off a list of information sources that the jurors should avoid, including Facebook, Twitter, MySpace, LinkedIn and YouTube. “It’s all out,” he said.
He issued similar daily warnings during the trial.
But after the trial concluded, Loughry’s attorney questioned whether one of the jurors interacted on social media despite the judge’s instructions.
The juror had, in the months prior to the trial, ‘liked’ some tweets relating to Loughry’s troubles.
Loughry’s defense attorney, John Carr, then expressed concern that the juror had accessed social media during the trial.
Copenhaver concluded that evidence wasn’t enough to demonstrate bias, though. The juror had earlier pledged to be able to remain open-minded about the evidence.
“Indeed, there is no evidence or allegation that Juror A posted anything related to the case during that time,” Copenhaver wrote on Feb. 8, 2018.
“Although Juror A follows a number of West Virginia elected officials and members of the media — including Kennie Bass of WCHS-TV and Brad McElhinny of West Virginia MetroNews, who reported on the evidence admitted at trial — there is no evidence that Juror A was exposed to any content related to the case.”
Today, former West Virginia Solicitor General Elbert Lin will argue that Loughry should have received an evidentiary hearing.
A brief filed for Loughry suggests Juror A almost certainly would have come across tweets focused on the trial.
Before the trial, Lin wrote, “Juror A had a special interest in the proceedings against Loughry. As the district court noted, more than a third of the tweets that Juror A liked in the four months before trial (four out of eleven) were negative tweets about Loughry and the West Virginia Supreme Court of Appeals.”
Once the trial began, Lin wrote, the juror’s Twitter use did not stop.
Loughry’s appeal contends that given the volume of news tweets during the trial, once logging on Juror A almost certainly would have seen some.
Loughry’s lawyers are asking for an evidentiary hearing to find out more.
“The undisputed evidence shows that Juror A actively engaged with Twitter at least three times during the six days of trial — one original post, a retweet of another’s post, and a like of a third post,” Lin wrote.
“While none of them had to do with the trial, they show that Juror A was on Twitter and support a credible allegation that Juror A would have encountered information about the case given whom Juror A followed.”
Lawyers for the U.S. government, which prosecuted Loughry, counter that there’s no direct evidence Juror A saw or was swayed by tweets during the trial.
And lawyers for the government contend the motion for an evidentiary hearing amounted to an afterthought and that Judge Copenhaver was correct in denying it.
“Loughry cannot demonstrate the court plainly erred or that it erred at all,” wrote attorneys for the U.S. government. “The court made correct factual findings about Juror A’s honesty and lack of deceit.”
Loughry’s lawyers filed a response to the U.S. government, saying Loughry isn’t actually asking for much — just an evidentiary hearing to look further into how Juror A might have been influenced by social media during the trial.
“Defendant Allen H. Loughry, II seeks only modest relief in this appeal — neither a new trial nor vacatur of his convictions or reversal of the judgment below, but simply an evidentiary hearing on the issues of juror misconduct and bias in his high-profile trial.”