Former Justice Allen Loughry is asking the U.S. Supreme Court to examine an aspect of his federal trial, contending a juror’s interactions on social media raise an important question about bias in modern times.
“Extrajudicial information has become more pervasive and private in the digital age,” lawyers for Loughry wrote. “It can reach into the jury room silently and without leaving any public trail. A juror can receive prejudicial contact without anyone, including a juror sitting in the next chair, being the wiser. And those communications can come from virtually anyone with a phone or computer, without regard to fact or fiction.”
Lawyers for Loughry, including former West Virginia Solicitor General Elbert Lin, last week petitioned the U.S. Supreme Court to review lower court decisions in his case. It’s a request to take a closer look, with no guarantee the justices will take the case.
Loughry isn’t, at this point, asking for his 2018 conviction on fraud charges to be overturned. Instead, his lawyers are asking for a hearing to question a juror about her social media interactions, exploring whether exposure to postings about Loughry could have resulted in bias.
The Supreme Court should be interested in this question, Loughry’s lawyers wrote, because we live in an age where jurors across the land could be influenced by their social media habits without leaving a trace. So there is an overriding question about how much circumstantial evidence is necessary to ask a juror about social media exposure.
“This issue is of great and growing importance as juror influences continue to move online and become more private, pervasive, and prejudicial than ever before,” the lawyers for Loughry wrote in the Supreme Court petition. They added, “The Court is unlikely to see a better vehicle to address this question.”
At issue is how best to apply Remmer vs. United States — a 1954 case about prejudicial contact with a juror — for the modern age. Remmer established an entitlement to a hearing when a juror is exposed to extrajudicial information. But it was established in simpler times, before people could bring up information at the touch of a button.
How should that concept be applied when potentially biasing information is available easily and privately? Is circumstantial evidence of a juror’s social media interactions enough to trigger a hearing to ask more about posts they might have seen during jury duty?
“This petition presents the opportunity to address an evasive question of increasing importance, and over which the circuits are now divided: whether purely circumstantial evidence that a juror was exposed on social media to external information about a trial can be enough to entitle a criminal defendant to a hearing under Remmer v. United States,” wrote lawyers for Loughry.
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.
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.
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 John 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. Three of those were posts by state delegates around the time of Loughry’s legislative impeachment.
Then, 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. Loughry’s attorneys are asking whether those interactions mean the juror could have passively absorbed information from tweets by journalists covering the trial. But without a hearing, the lawyers say, there is no way to ask.
The juror was subscribing to postings by two reporters — Kennie Bass of WCHS TV and Brad McElhinny of West Virginia MetroNews — who tweeted updates about the trial.
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.
U.S. District Judge John Copenhaver, who presided over Loughry’s trial, declined a hearing about the juror. The Fourth Circuit Court of Appeals also rejected the hearing.
But the unique and thoroughly modern nature of the question has prompted Loughry’s lawyers to try again with the nation’s highest court.
“This case also presents an ideal set of facts to consider the question whether circumstantial evidence alone can ever justify a Remmer hearing. There is no
direct evidence establishing external contact,” wrote lawyers for Loughry.
“At the same time, it is difficult to imagine more compelling circumstantial evidence of potentially prejudicial social-media contact. If the circumstantial evidence here does not warrant a Remmer hearing, no circumstantial evidence ever will.”