2023 DBA DISTRICT MOCK TRIAL COMPETITION Volunteers Needed

Seasons (adapted from Robert Bolt's eponymous 1960 play). As she memorably puts it, we all "need friends admitted to practice before the Highest Court, for prayers of intercession"!

This profile would not be complete without noting Diane's ardent love of bears. A self-professed "Bearaster" (n. Attorney who loves bears), her office is adorned with portraits, paintings, and sculptures of bears, especially from her beloved Great Smoky Mountains. Fittingly for her primary practice area, her unbalanced scales of justice hold a mother bear on one side and two cubs on the other. This passion is a reminder to have fun and not take herself too seriously. As Diane advises young lawyers, "Follow your passion—that is, your God-given talent—into whatever area of law that leads you." At the end of the day having worked hard you will be tired, but "tired-happy."

By Nathaniel M. Fouch Esq. Ohio Court of Appeals - 12th District fouchn@12thdca.com

Do Judges Have Authority to Order a Forensic Examination of a Juror’s Smartphone?

By Prof. Thaddeus A. Hoffmeister Esq., Co-Chair, Criminal Law | UDSL | thoffmeister1@udayton.edu

“No,” according to a three-judge panel of the 6th Circuit Court of Appeals which recently decided United States v. Alexander Sittenfeld (6th Cir. Sep. 23, 2022).

This past summer Alexander “P.G.” Sittenfeld, former Cincinnati City council member and rising political star, was convicted of two counts each of honest-services wire fraud, bribery, and attempted extortion under color of official right. Like most trials in the Digital Age, the presiding judge told the jurors in the Sittenfeld case not to discuss the case online or consider extraneous information. Nonetheless, on the third day of the nine-day trial, a court employee informed the judge that Juror X was posting about the trial and that her Facebook page was visible to her friends, “of whom the court employee was one.”

The trial judge ultimately obtained printouts of Juror X’s facebook page which did not contain facts about the case nor was the defendant named. However, Juror X’s Facebook friends did make comments about the trial to include specifically naming the defendant which Juror X hid so that others could not see it. Another friend provided a newspaper link about the case and yet even another friend posted about jury nullification. More importantly, Juror X wrote the following about Juror Y:

“shouldn’t be on the jury because [she] hates anyone that shares the same profession as our person on trial. Not cool!!!”

The trial judge brought the opposing parties in to share the Facebook information. Simultaneously, the jury reached a verdict. Prior to hearing the verdict, the defense moved for a mistrial which was denied without prejudice. The jury then issued its verdict and the judge dismissed the jurors save for Juror X and Y who remained in the courtroom so that the judge could conduct a Remmer hearing derived from Remmer v. United States (1954), which is required whenever “a defendant presents a ‘colorable claim’ that extraneous information or contact had an obvious or likely adverse effect on the jury.”

After being put under oath, attorneys for the defendant questioned Juror X who “reasserted her opinion that Juror Y should not have been on the jury because she hated politicians.” Juror X also stated that she never conducted any outside research about the case and “had hidden Sittenfeld’s name from one of the Facebook comments so that others would not see it.” Juror Y was sworn in next and testified that she had “no opinions about politicians” and had followed the court’s instructions about use of social media.

The following day the court gave both parties “screenshots of all of Juror X’s posts and comments.” Four days later, the court then directed Juror X to preserve any electronic communications relating to “her service as a juror.” Unfortunately, Juror X responded “that she had already deleted the Facebook posts and comments,” which led defense counsel to ask for a forensic examination of Juror X’s electronic devices.

Prosecutors opposed the defense motion citing both juror privacy and lack of any proof that the juror was exposed to extraneous information likely to impact the verdict. The trial judge agreed with the prosecution and denied the request finding “no basis to believe that Juror X was prejudiced against Sittenfeld by any extraneous information, [and] conclude[d] that no basis exists to order a forensic examination of Juror X’s cell phone.” The defense appealed.

The 6th Circuit in upholding the decision of the lower court noted that the Supreme Court has serious concerns about post-verdict investigations into juror misconduct. The appellate court went on to say that “a court should be reluctant to investigate accused jurors so invasively, if at all.” The 6th Circuit continued to question whether a trial judge had any authority to permit a forensic examination of a juror’s devices during a Remmer hearing but nonetheless did explore potential possibilities.

First, the 6th Circuit looked at the court’s inherent power and ultimately determined that the “district court has inherent power to hold a Remmer hearing, which includes juror testimony. But that inherent power does not extend to…a search of the juror’s belongings.” Second, the court explored the subpoena power. Here, the 6th Circuit determined that “[a] district court conducting a Remmer hearing has no power [to] enforce a subpoena request that a juror produce her electronic device on the basis that a search of that device might uncover evidence to impeach that juror’s Remmer hearing testimony.” Third, the 6th Circuit examined three different statutes 28 U.S.C. §1651 (a) (All Writs Act), 28 U.S.C. §1826(a) (Civil Contempt), 18 U.S.C. §401 (Criminal Contempt) none of which “provides a court conducting a Remmer hearing with the power to order a search of a juror’s belongings.”

The 6th Circuit concluded its opinion by noting that the “lack of clear authority is particularly troubling when a court’s exercise of power threatens a third-party’s constitutional rights.” The appellate court then went on to discuss Riley v. California (2014) where the U.S. Supreme Court held that police need a warrant in order to search a suspect’s smartphone. Arguably, had the court come out the other way, criminal defendants would have greater privacy rights in their phones than jurors.