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Justice Loughry’s appeal hearing asks whether juror’s social media habits reveal bias

Appeals court judges are considering whether a juror’s social media exposure during the federal trial of former West Virginia Supreme Court Justice Allen Loughry could have biased her.

Three judges with the U.S. Court of Appeals for the Fourth Circuit spent about an hour today asking questions about the 2018 case that resulted in a two-year sentence on mail and wire fraud charges.

They did not immediately rule.

The afternoon’s appeal hearing was virtual because of the ongoing coronavirus pandemic. Streaming audio at first resulted in feedback and then went dark to work on the problem. After a few minutes the stream returned, partway through oral arguments.

MORE: Here is the full appeal hearing. 

The case heard by federal appeals judges Paul Niemeyer, Albert Diaz and Marvin Quattlebaum focuses on whether the district court in Charleston erred by denying an evidentiary hearing based on a juror’s Twitter usage.

Allen Loughry

Loughry’s attorneys are asking for that ruling to be reversed and for an evidentiary hearing to examine the matter further.

Two years ago, 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 24 months, 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.

Juror A had, in the months prior to the trial, ‘liked’ some tweets relating to Loughry’s troubles.

During a jury selection process that was so large that it had to be split into morning and afternoon sessions, prospective jurors were asked several questions about their familiarity with the case.

Juror A’s initial responses indicated general unfamiliarity. But when Judge Copenhaver asked more specifically about the legislative impeachment, Juror A was among those who described some knowledge.

Judge Copenhaver followed up by asking if jurors could set that prior knowledge aside, listen to the evidence and base a verdict solely upon what was presented in the courtroom. Juror A said yes and wound up being selected to hear the case.

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 Juror A had interacted on social media despite the judge’s instructions.

Lawyers for Loughry have noted a handful of Twitter activity by the juror during the trial period — and suggest that activity makes it likely she saw posts by reporters who were covering the trial.

The lawyers for the government countered that there’s no direct evidence of that.

“There has to be some evidence here more than just speculation that this juror actually engaged with and saw tweets that were tweeted by the press,” said Greg McVey, a lawyer representing federal prosecutors.

Diaz, one of the three appeals judges hearing the case, acknowledged, “That would be a slam dunk.”

But Diaz questioned if the juror’s log-ins to Twitter during the trial period isn’t enough to at least ask a little more. “Why isn’t that enough to at least have an inquiry?” Diaz asked.

McVey responded that the juror’s tweets during the trial period had nothing to do with Loughry. “There has to be something more than just the fact that she had accessed Twitter,” McVey said.

He compared the situation to a juror with a newspaper subscription receiving the daily paper but obeying instructions to ignore it.

Of the juror’s tweets, McVey said, “There is absolutely no activity with regard to the reporters in this case. That would tend to show she was obeying the court’s instructions and not interacting with the reporters’ tweets.”

The hearing had a lot of focus on Juror A’s pre-trial Twitter activity — retweeting criticism of Loughry — and her answers during jury selection.

“You have to ask yourself, given what happened and given what happened before the trial, whether it warrants more investigation,” said Judge Quattlebaum.

Attorney Elbert Lin, representing Loughry, noted that Judge Copenhaver had earlier concluded Juror A’s responses during jury selection fell short of being truthful. Copenhaver had also noted, though, that there was no evidence the juror wasn’t willing to set aside preconceived evidence based on the evidence presented.

Still, Lin said of Copenhaver, “He acknowledges that she may have been less than truthful, and I think that alone is enough.”





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