The National Law Journal
March 12, 2007

By Vesna Jaksic

A New Hampshire case involving a juror who posted entries about court duty on his blog has raised the issue of juror blogging, which legal experts said may soon become a regular part of voir dire and jury instructions.

The case involves Stephen Goupil, who was convicted in 2005 on five counts of sexual assault and one count of theft. New Hampshire v. Goupil, No. 2005-444. (N.H.). The juror foreman, Scott Vachon, made an entry in his blog in early 2005, four days before jury selection, in which he said he would have to “listen to the local riff-raff try and convince me of their innocence,” according to court documents. Once seated on the jury, but before the start of the trial, Vachon also wrote that he was surprised he was chosen, given his “strong beliefs” about the police and God, according to documents.

Mark Sisti of Sisti Law Offices in Chichester, N.H., who represented the defendant, said he learned about the blog during jury deliberations shortly before the verdict, thanks to a lawyer who was the jury foreman’s neighbor. Sisti alleged that the blog showed that the juror was biased against criminal defendants and that a new trial should take place. Once informed of the blog, the judge agreed to question the jurors but did not throw out the guilty verdict. The New Hampshire Supreme Court upheld the verdict in September 2006. Sisti then filed a habeas corpus petition in federal district court in New Hampshire.

“It’s the kind of stuff that scares you because you don’t know what’s going on,” Sisti said. “You don’t know if the jurors are communicating via this type of media or device after they are released each day, you don’t know what they are picking up. It’s not TV or radio, this is a whole new medium.”

The number of blogs-online journals also known as Web logs-was estimated to exceed 55 million in December, according to Technorati, the blog search engine. Blogs allow anyone with access to the Internet to post entries at little or no cost. Readers are typically able to post their comments.

‘Is this legal?’
Many blogs discuss jury duty, but most bloggers seem to know not to discuss trials in which they are taking part. Blogger Josh Hallett of Winter Haven, Fla., said he checked with several lawyer friends before deciding not to blog about jury duty.

“The general gist was: I could talk about the overall selection process and arriving at the courthouse, but when I got down to the trial itself I couldn’t,” said Hallett, a media consultant.

Another blogger, Robert Hashemian, a Web programmer in Ridgefield, Conn., said although the judge did not specifically discuss blogging, he knew not to write about his civil trial until after the verdict.

“We’re not supposed to talk about anything while it’s going on,” he said.

But there is some confusion in cyberspace. In July, a blogger made an entry on his laptop from the jury waiting room, which was equipped with wireless Internet.

“So of course that means one thing: I’m live blogging jury duty,” wrote the blogger, Matt McCormick. “Is this legal?”

Several experts said the issue brings up an array of questions that need to be answered now, as blogs will only become more common.

“It raises an interesting question-the juror isn’t supposed to discuss the case with anyone else, but are they discussing the case if they are posting information about it but not hearing anything back?” said Clay Conrad, a partner at Conrad, Marteeny & Looney in Houston who runs “Jury Geek,” a blog about juror issues.

“The other thing that the blog could produce is evidence that the juror has prejudged the case. It could also provide evidence that in some cases perhaps the jurors lied or fudged the truth during voir dire. All of those could cause motions for new trial,” Conrad said.

A New York trial judge, state Supreme Court Justice Helen Freedman, said jurors should not blog until the trial is over.

“You’re not supposed to talk to anyone about the case, so by posting or blogging you’re talking to people about the case,” she said.

Steve Leben, a Kansas state district judge and president of the American Judges Association, said jury instructions will likely evolve as people communicate in new ways. Bob Kelley, a plaintiffs’ attorney who is a partner in Fort Lauderdale, Fla.’s Kelley/Uustal and runs a blog on the state’s jury selection process, said lawyers should know by now to check whether potential jurors have blogs.

“Any lawyer who does not inquire during jury selection about a juror’s Internet presence-whether it be a Web site, a blog, an account on MySpace or an account on Match.com-hasn’t done their job,” said Kelley, who regularly asks potential jurors such questions.