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Criminal

Aug. 30, 2019

Jurors gone wild: the Ghost Ship trial

In a rare move, Alameda County Superior Court Judge Trina Thompson dismissed three out of the 12 jurors in the Ghost Ship case, and threatened that the dismissed jurors could be held in contempt of the court.

Louis J. Shapiro

Email: LouisJShapiro@Gmail.com

Louis, a former Los Angeles County Public Defender, is a criminal defense attorney and State Bar-certified criminal law specialist out of Century City. He is also a legal analyst, board member of the California Innocence Project and Project For The Innocence at Loyola Law School, CACJ and LACBA'S Criminal Justice Executive Committee.

A memorial outside the "Ghost Ship" warehouse in Oakland.

In the pending Ghost Ship trial, two men are being tried for the tragic deaths of 36 people in the Fruitvale district warehouse fire on Dec. 2, 2016, during a dance party.

While we don't know the underlying details of the misconduct, the judge made reference to "unauthorized communications" during her admonition to the remaining jurors.

If the jurors are found guilty of contempt of court, they could be punished by fines or jail time. Jail time though is highly unlikely.

This matter presents the perfect opportunity for a refresher on what constitutes "juror misconduct."

Juror misconduct occurs when the law of the court is violated by a member of the jury while a court case is pending, or after the jury has reached a verdict.

The most common examples of juror misconduct are: 1. Communications by a juror with one of the witnesses, attorneys, bailiff or judge about the case. 2. When a juror comes into contact with material or evidence that the judge did not admit into evidence, and it influences the juror's vote. 3. A juror conducts his or her own experimentation.

Without question, the greatest challenge to the modern day juror is to resist the temptation to take to the internet to research about the case, or look up information that he or she feels may be relevant to it. If a juror wants to learn more about a party's background, he or she can easily look up the person's social media account or read online articles.

In an effort to prevent this type of misconduct, judges are admonishing jurors to refrain from using the internet to do their own research and posting anything on social media.

Despite the warnings, juror misconduct is on the rise -- more alternate jurors are being selected than ever before.

Egregious juror misconduct can result in poisoning the entire jury pool, in which case the only remedy would be for the court to declare a mistrial and start the trial over, with a fresh set of jurors.

So what, if anything, can be done to prevent modern day juror misconduct? Should court judicial assistants and clerks be tasked with regularly checking every juror's Facebook and Instagram pages? Should jurors' cellphones be inspected every time they enter and exit the courtroom? How do we balance the jurors' expectation of privacy, against the need to protect against juror misconduct?

In my opinion, this "crack in the armor" is actually the secret sauce of success in our judicial system. There are checks and balances in the justice system, such as the Evidence Code and Civil Rules of Procedure. But at the end of it all, our system is built on trust; trust that when the jurors stand and swear that they will "truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to [them] and instructions of the court."

As officers of the court, we need to lead by example. That means not friending sitting jurors on Facebook and not commenting on our own proceedings during the trial via social media. We don't know who may stumble upon our broadcast. As technology continues to advance, and the law struggles to keep up with it, we need to do our very best to demonstrate respect for the sanctity of the proceedings. If we do our part, then maybe the jurors will do theirs. 