Correy E. Stephenson//March 1, 2021
Correy E. Stephenson//March 1, 2021//
A former justice of the West Virginia Supreme Court, convicted on 11 criminal counts in a week-long trial, challenged his convictions and sought an evidentiary hearing claiming one of the jurors improperly checked her Twitter account during the trial.
But the ex-justice lacked evidence that the juror actually read any tweets related to the trial, the 4th U.S. Court of Appeals found, affirming the convictions and rejecting his call for a hearing to look into the juror’s alleged misconduct and bias.
The case is U.S. v. Loughry (VLW 020-2-334, 31 pages). Judge Paul V. Niemeyer wrote the opinion for a divided panel.
In 2017 news reporters in West Virginia began investigating and reporting about lavish spending of public funds by the state’s Supreme Court justices for renovating and refurbishing their offices, triggering a federal investigation which produced evidence that then-Chief Justice Allen H. Loughry II had misappropriated public property and obstructed justice during the course of the investigation.
A grand jury returned a 25-count indictment charging Loughry with mail fraud, wire fraud and related crimes in June 2018, and the state’s legislature began impeachment proceedings against Loughry around the same time.
During jury selection for the criminal trial one juror, later dubbed “Juror A,” denied having knowledge “of this case” or “facts of this case,” but admitted having knowledge of the impeachment proceedings and said she could set aside her knowledge and render a verdict based solely on the evidence presented at trial. Loughry didn’t question Juror A further, and she was impaneled. After six days of trial and two days of deliberation, the jury found Loughry guilty on 11 counts and acquitted him on the others.
Shortly after trial, someone approached Loughry and his counsel on the street outside the courthouse and suggested they look at Juror A’s Twitter account. Loughry’s counsel found that Juror A had liked or retweeted four tweets during the summer of 2018 related to the Supreme Court scandal and accessed Twitter on at least two days during trial, although her activity was related to football.
Loughry filed a motion for a new trial or else for an evidentiary hearing, arguing that Juror A was biased against him based on her Twitter activity both before and during trial, and because she’d failed to indicate that she had personal knowledge of the case or the facts of the case during voir dire.
The district court denied the motion. But a divided Fourth Circuit panel affirmed, stating that the jury, including Juror A, assured the court that it would decide the case on the evidence before it, and its verdict reflected that, acquitting Loughry on several charges.
“The long and short of this case is that evidence indicates Juror A had some pretrial exposure to news of the investigations of the West Virginia Supreme Court justices and participated modestly in the public dialogue via a few ‘likes’ and retweets on Twitter,” Niemeyer wrote. “But evidence further indicates that she engaged in no prohibited contacts or communications during trial … social media does heighten the risk that jurors will be exposed to external information about the case, but here Loughry has failed to make a threshold showing that that risk was realized. In this case, all the evidence points to a fair trial.”
Loughry argued that Juror A’s use of social media during the trial constituted misconduct in violation of the U.S. Supreme Court’s 1954 decision Remmer v. United States, entitling him to an evidentiary hearing. Besides liking football-related tweets—demonstrating that she was on the social media site—Juror A also followed two local reporters who were documenting the trial.
But Niemeyer disagreed that any potential juror contact with social media during trial about a matter before the jury triggered the Remmer presumption of prejudice. Instead, a defendant seeking a hearing on the issue must present something more than mere speculation, such as “‘a credible allegation that an unauthorized contact was made, and that the contact was of such a character as to reasonably draw into question the integrity of the trial proceedings, constituting more than an innocuous intervention.’”
“Loughry’s request for a Remmer hearing rests on the argument that Juror A could have seen the reporter’s tweet on October 9 or other tweets by the reporters because she had a Twitter account and used it,” Niemeyer wrote. “Such a standard is defined so broadly as to reach not only Juror A’s activity but also the activity of any other juror who had a social media account. In any event, the jurors were repeatedly instructed to avoid social media ‘about this case,’ and we presume that the jury followed those instructions. The stubborn fact yet remains in this case that Loughry did not make ‘a credible allegation that an unauthorized contact was made.’”
Niemeyer was similarly unpersuaded by Loughry’s contention that Juror A dishonestly responded to voir dire questions based on the four tweets that she liked or retweeted in the months before trial, finding the evidence insufficient. Juror A answered “yes” when asked if she had heard anything about the impeachment proceedings and also affirmed that she could ignore what she had learned and base a verdict solely upon the evidence adduced in court.
“Given the series of questions the prospective jurors were actually asked, the four pretrial tweets that Juror A ‘liked’ or retweeted do not suggest that Juror A was dishonest in answering, or failing to answer, any voir dire questions,” Niemeyer said. “So while Juror A’s Twitter activity clearly shows that she was aware of the impeachment proceedings and the ethics investigation, it reveals nothing about her awareness of the criminal case—which the court carefully distinguished from the impeachment proceedings during voir dire.”
Crucially, Juror A admitted her awareness of the impeachment proceedings, and Loughry—despite the invitation to inquire further into potential jurors’ knowledge of the case or the impeachment proceedings during voir dire—declined to do so.
Finally, Niemeyer rejected Loughry’s argument that the district court should have held an evidentiary hearing to investigate whether Juror A was actually biased against him.
“Insofar as Juror A’s Twitter activity reveals that she had some preexisting knowledge of the case, ‘it is a long-settled proposition that mere knowledge of a case is insufficient to support a finding of actual prejudice,’” Niemeyer wrote. “Moreover, even if that activity suggests that she likely viewed Loughry less than favorably, she nonetheless affirmed to the district court that she did not have ‘an opinion’ and has not ‘expressed an opinion as to the guilty or innocence of the defendant of the charge or charges contained in this indictment in this case’ and that she could render a verdict based solely on the evidence at trial.”
Judge Albert Diaz dissented, writing that he would allow Loughry a Remmer hearing to “ascertain the full extent of Juror A’s Twitter activity during the trial.”
Richmond lawyer Elbert Lin represented Loughry, and Richard Gregory McVey in the Southern District of West Virginia U.S. Attorney’s Office represented the government. Neither responded to requests for comment.