A full panel of federal appeals judges probed what level of a juror’s interaction with social media might have introduced bias into the case of former state Supreme Court Justice Allen Loughry.
In an era when hot takes are available at the touch of a button, that’s a question that could affect any high-profile trial in the country.
“There’s increased risk. There’s no question,” one of the judges said today. “The question is, where are we going to draw the line?”
Based on their questions and comments, about half the judges in today’s oral argument seemed to think there is enough question about a single juror’s Twitter exposure to coverage of the trial to justify another hearing to examine the matter further. The others seemed to think there was little direct evidence of social media exposure that could lead to a biased outcome.
There was not an immediate ruling today. The judges of the Fourth Circuit Court of Appeals convened online for an en banc hearing — meaning heard by the entire bench — in Loughry’s continued attempt to raise questions about whether he really got a fair trial.
Loughry has already served his federal sentence and was released Dec. 16. But he continues to dispute aspects of his prosecution and trial.
He was elected to the state Supreme Court in 2012 and was selected to serve as chief justice in 2017. But after a spending scandal hit, Loughry was arrested by the FBI, impeached by the Legislature, resigned from the court and convicted in late 2018 on fraud charges by a federal jury.
His appeal has focused on the social media habits of a particular juror, described as Juror A.
At this point, Loughry is not asking for his conviction to be overturned. Instead, his attorneys are making a narrower argument that the social media exposure of Juror A should be examined in a hearing.
When jurors were selected in 2018, 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, U.S. District Judge Copenhaver issued a blunt warning to stay off social media.
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. Then, during the trial period, she had ‘liked’ some tweets related to football, but none referring to any facts about the case or the broader scandal.
However, the juror was following two reporters — Kennie Bass of WCHS TV and Brad McElhinny of West Virginia MetroNews — who tweeted about the trial. That raised the question about whether even inadvertent exposure had contributed to bias.
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. And, Loughry’s attorney contended, the juror had already demonstrated interest in the scandal.
“We know these individuals tweeted 73 times between them, which is a lot,” said Elbert Lin, West Virginia’s former solicitor general, who was representing Loughry.
A three-judge panel with the Fourth Circuit last December rejected Loughry’s claim. But then then full panel of judges decided to hear the case, giving Loughry another shot.
Today’s hearing, which lasted an hour and a half, represented oral arguments, which were conducted online because of ongoing precautions of covid-19. Audio streamed online, but it was hard for anyone unfamiliar with the voices of the judges to determine who was speaking.
Much of the discussion revolved around how anyone would know whether the juror had any “improper contact.”
“If someone wrote something and there’s no evidence someone read it, how is that improper contact?” a judge asked.
Almost all jurors in any case would have some form of social media these days, a judge said. “My suggestion is that every juror is, or most jurors are, participants in social media. Where do we draw the line if we’re not going to require a specific contact?”
One of the judges asked if scrutinizing even casual social media interactions by jurors could result in greater burden.
“You need to remember these people who serve on juries are disrupting their personal lives and personal schedules all in service of a very noble obligation,” the judge said. “Are we putting unwarranted burden upon jury service?”
And a judge asked what the conditions for jury service might have to be in the future. “You’ve got to check all your cell phones and check all your iPhones and all your technology with the court and put it in some kind of safe to cut off the possibility of this kind of hearing,” the judge surmised.
One of the judges suggested a hearing to ask the juror questions about what she saw on social media wouldn’t be out of the question.
“Not every juror is going to follow a reporter in terms of what they’re tweeting. That’s the limiting principle,” the judge said. “The purpose of the hearing is to find that out. It’s a simple hearing. Just conduct a simple hearing. And when you conduct the simple hearing you will find the answers. To just blow it aside and don’t do it, I don’t get that.”
Lawyers on both sides agreed that a hearing to ask the juror about social media use could be an hour or shorter.
Lin, representing Loughry, said some questions could try to elicit specifics: “Do you remember reading other tweets during that time? What do you remember of your Twitter activity?”
But Greg McVey, a lawyer representing federal prosecutors, said there’s not enough evidence to merit another hearing about the juror. He said what has been brought up already is a matter of speculation and that there was no evidence of interaction with tweets by reporters, particularly during the trial.
“There has to be some allegation that actually occurred during trial,” McVey said. Without more specific evidence, he said, “what that ends up being is, in essence, a fishing expedition.”