Attorneys or their representatives may monitor any activity that is publicly available, but they may not “friend” a juror in an effort to monitor their private social media postings. Nor may attorneys use a third person to friend jurors.
Further, when lawyers find evidence of juror misconduct, there are certain times when the lawyer must report it to the Court and other times when he is not:
The final question the new ABA ethics opinion addresses is what a lawyer should do if he discovers misconduct by a juror during his Internet review. “Jurors have discussed trial issues on ESM [electronic social media], solicited access to witnesses and litigants on ESM, not revealed relevant ESM connections during jury selection, and conducted personal research on the trial issues using the Internet,” the opinion notes.
Under Rule 3.3(b), a lawyer has an obligation to inform the court when the juror’s conduct is fraudulent or criminal. But if the lawyer learns of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, it is not clear if he is obligated to inform the court, the opinion says. For example, “innocuous postings” about jury service, such as the food served at lunch, may violate the jury instructions but fall short of criminal contempt.
If, by virtue of monitoring the juror’s social media postings, the juror is alerted, the lawyer has not contacted the juror. Rather, the social media service provider has initiated the contact.
The ethics opinion leaves open some question. What if, for instance, a member of the attorney’s staff or an attorney’s acquaintance is already connected with a juror by social media. Is it permissible to monitor the juror through access that already exists?
Over the weekend, George Zimmerman’s lawyers, Don West and Mark O’Mara, spoke at the GACDL seminar. The said that they actively monitored the social media posting of jurors. And, through these efforts, they found what they called “stealth jurors.” These individuals claimed under oath that they could be fair and impartial, while their proclamations on social media said otherwise.
Many future questions lie ahead. The Georgia Rules of Professional Conduct do not appear to cover this question. Though I am sure that more state bar associations may follow the ABA’s lead.
Assuming that it is permissible to monitor jurors in this way, might there be a duty for effective assistance of counsel under Strickland to monitor jurors in this way? For instance, what if habeas counsel or counsel on a motion for new trial finds that a “stealth juror” lobbied his way onto a jury and that the juror’s actual views could have been discovered fairly easily on social media postings. Does the client have an ineffective assistance claim? Or can the juror be called as a witness to invalidate the verdict aside from IAC?
While the ABA has begun the question of can counsel monitor the social media postings, more questions lie ahead about whether there’s a duty to do so by diligent or effective counsel. And there’s also a question of whether the State has an obligation under Brady to disclose evidence it finds about jurors to the defense as exculpatory evidence.