A federal appeals court has upheld lower court actions in the case of former state Supreme Court Justice Allen Loughry.
Loughry, who was released last week from a federal halfway house, had sought a new hearing on a juror’s use of social media during his Charleston trial. U.S. District Judge John Copenhaver had denied the hearing.
Attorneys for Loughry took the case to the Fourth Circuit of the U.S. Court of Appeals. A three-judge panel on Monday upheld Copenhaver’s earlier ruling.
“At bottom, we conclude that the district court, which carefully scrutinized the evidence advanced by Loughry in support of his motion, did not abuse its discretion in denying Loughry’s request for an evidentiary hearing. The court’s judgment is AFFIRMED,” the judges wrote.
One of the judges, Albert Diaz, issued a partial dissent, saying he would have allowed a hearing on the juror bias allegations. The other judges were Paul Niemeyer, who wrote the opinion, and Marvin Quattlebaum.
“The long and short of this case is that evidence indicates that Juror A had some pretrial exposure to news of the investigations of the West Virginia Supreme Court justices and participated modestly in the public dialogue via a few ‘likes’ and retweets on Twitter,” the judges wrote.
“But evidence further indicates that she engaged in no prohibited contacts or communications during trial. As we have noted, social media does heighten the risk that jurors will be exposed to external information about the case, but here Loughry has failed to make a threshold showing that that risk was realized. In this case, all the evidence points to a fair trial.”
The judges heard arguments in late October on Loughry’s claim that a juror in his federal fraud case was unduly influenced by social media.
The appeals hearing focused 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 had asked for that ruling to be reversed and for an evidentiary hearing to examine the matter further.
A jury in late 2018 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.
The jury acquitted Loughry on a count charging him with mail fraud in connection with his removal of a historical Cass Gilbert desk from the Supreme Court building to his home, which had been the subject of extensive media coverage.
Copenhaver later acquitted Loughry on the witness tampering charge.
Loughry’s appeal focused 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 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. During the trial period, the juror had ‘liked’ some tweets related to football, but none referring to any facts about the case or the broader scandal.
The juror was following two reporters who tweeted about the trial. Although it’s possible the juror saw posts by those reporters, there was no direct evidence that she did.
Copenhaver concluded that evidence wasn’t enough to demonstrate bias. 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, 2019.
“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.”
Loughry’s appeal contended that given the volume of news tweets during the trial, once logging on Juror A almost certainly would have seen some.
Lawyers for the U.S. government, which prosecuted Loughry, countered that there’s no direct evidence Juror A saw or was swayed by tweets during the trial.
And lawyers for the government contended the motion for an evidentiary hearing amounted to an afterthought and that Judge Copenhaver was correct in denying it.
The appeals judges concluded, “any reasonable juror receiving the district court’s instructions during trial would have concluded that social media was prohibited only in connection with the case. “