Even split among appeals judges means Loughry won’t get another hearing over juror’s social media

Former West Virginia Justice Allen Loughry got a second chance to pursue an appeal of his conviction on fraud charges. Then he lost the second chance on a tie.

Judges on the 4th District U.S. Court of Appeals announced today that they were equally divided, 6-6, on whether to grant Loughry a hearing to examine whether a juror’s social media use could have injected bias into the 2018 conviction.

U.S. District Judge John Copenhaver, who presided over Loughry’s trial, had earlier declined the hearing about the juror. So the tie vote among appeals judges means that ruling stands.

“The judgment of the district court is affirmed by an equally divided court,” the 4th Circuit judges wrote in their unsigned opinion.

Loughry’s request for a hearing about the juror’s social media had been rejected earlier by a three-judge panel at the appeals court. But then all of the judges of the 4th Circuit had wanted to review it, a setup known as en banc.

So all of the judges on the appeals court — with a couple of recusals — heard arguments on May 3. Judge Robert King of West Virginia, Judge Stephanie Thacker of West Virginia and Judge Allison Jones Rushing of North Carolina did not take part.

Elbert Lin

Loughry was represented by Elbert Lin, West Virginia’s former solicitor general.

“The one-sentence decision from an obviously divided full Fourth Circuit is disappointing,” Lin said today.

“Social media poses a growing threat to a criminal defendant’s Sixth Amendment right to an impartial jury. District courts cannot protect against that threat without first understanding how social media platforms work and then having clear guidance from appellate courts.”

Lin contended the appeals judges missed an opportunity to provide guidance while underscoring the U.S. Supreme Court’s decision in Remmer vs. United States — a 1954 case about prejudicial contact with a juror — for the modern age.

“The result is to hinder the ability of defendants, who have strong circumstantial evidence of improper juror contact through social media during trial, to obtain a simple evidentiary hearing to determine the extent and nature of that contact,” Lin said. “We are considering next steps.”

Loughry has already served his federal sentence and was released last Dec. 16. But he has continued to dispute aspects of his prosecution and trial.

At this point, Loughry was not making a broad argument for his conviction to be overturned. Instead, his attorneys made a narrower argument that the social media exposure of a woman identified in filings as Juror A should be examined in a hearing.

Loughry 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, he 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.

When jurors were selected in 2018, they were asked about their familiarity with the allegations, 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’ a few 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 updates about the trial.

That raised the question about whether the juror saw tweets about trial coverage when they flowed through her feed and if even inadvertent exposure could contribute 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.

The judges with the 4th Circuit seemed split on their views when they heard oral arguments via streaming on May 3.

Much of the discussion revolved around how anyone would know whether the juror had any “improper contact.” More broadly, comments from the judges questioned what scrutiny any juror should face over their social media habits with the proliferation of smartphones and information at the touch of a button.

But some of the judges said a hearing to simply ask a juror about social media interactions wouldn’t be too heavy a burden.

In the end, the judges considering those issues came down with an even split.

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