Child Sex Assault Conviction Tossed Because of Juror’s Web Use
Ali M. Abdi was convicted of aggravated sexual assault for touching and raping his then-9-year-old niece in 2006. But one of Abdi’s jurors went online to research his Somalian culture and religion before the trial was over, and used what he found as “information to interpret facts in evidence,” according to court documents.
That outside research prevented Abdi from having a fair trial, one in which all evidence weighed by jurors is presented in court, the Vermont Supreme Court unanimously ruled recently, in tossing his first conviction. Now Abdi will have a second chance to challenge the charges against him and – if he’s successful – he could go free.
Abdi’s second chance is just the latest in a series of courthouse snafus linked to juror Internet use:
- Florida drug charges turned into a mistrial in 2009 when nine jurors confirmed they’d researched the case online.
- In Arkansas, a death row inmate’s murder conviction was tossed because a juror posted Twitter updates during the trial despite a judge’s instructions not to communicate with the outside world.
- British judges have gone further, in one case imprisoning a juror for her use of Facebook.
“It’s a growing problem, because it’s easier and easier for jurors to quickly and easily use their compact smart phones to go online and research the parties, witnesses and facts of the case,” said Jon Mitchell Jackson, attorney with California law firm Jackson and Wilson. “In the past it actually took a bit of effort for someone on a jury to ‘violate’ the court order not to independently do research. A juror was required to physically turn on a television or open and read a newspaper to learn more about the outside world’s interpretation of what is going on inside the courtroom. Today it’s the simple swipe of a finger across a glass surface of a smartphone and you’re online and running.”
That simple swipe of a finger may have felt irresistible to Abdi’s jurors, whose curiosity was piqued by the large role that his Somalian heritage played in the trial.
After his niece complained to her mother, the mother reported her concerns to Somali Bantu cultural leaders. Those leaders asked Abdi to swear to the facts on the Koran. Though he initially denied assaulting the child, his belief that swearing falsely on the Koran appears to have spurred Abdi’s confession, according to court documents. At that point, the elders contacted police.
Other Somali Bantu beliefs and traditions featured prominently in Abdi’s trial – including his lawyers’ assertion that his light-hearted demeanor was because of his cultural background, and was not a sign of disrespect to the court.
Though outside research is forbidden, it’s easy to see why jurors, faced with unfamiliar information and situations, might go online to learn more.
“For people who grew up in the Internet era, you hear something new and your first instinct is to search,” said Dr. Ellen Brickman, jury expert and director at DOAR Litigation Consulting in New York. “Let’s say you hear testimony, something is an unfamiliar term. It’s unlikely that a juror will go to the library and look at an encyclopedia. They’ll just Google the term.”
When the outcome of a case may hinge on how a word is defined, or on nuanced information, however, lawyers on both sides need an opportunity to cross examine all evidence that jurors consider. Sometimes, information on the Web is inaccurate, biased or legally inadmissible.
“Information that you come across on Wikipedia or another source is not always reliable, is not subject to cross examination and thus is not fair to the parties,” Brickman said. “It runs the risk of a mistrial, which is a colossal waste of everybody’s time and money. And does not necessarily serve the interests of justice, which is ultimately what most jurors want to do. Jurors who do Internet searches are not necessarily aware of this.”
In Abdi’s case, the court ruled that “research about Somali culture and religion had the capacity to affect the jury’s verdict, as jurors could have relied on it to interpret the testimony of the Somali witnesses and to determine the credibility of these witnesses.”
Judges that want to avoid more Internet-related mistrials are increasingly learning from trials like Abdi’s.
“Most states either have, or are in the process of, updating their jury instructions to include more description language referencing the Internet, blogging and social media,” Jackson said. “As of Jan. 1, 2012, California jurors are being specifically advised that all of the above will be considered a violation of the court’s order. Furthermore, court staff and bailiffs may now proactively investigate violations and jurors can now be found guilty of a misdemeanor for violating the court’s order by going online and using the Internet to talk about or research a case”
Even with clear instructions not to go online, however, many jurors don’t get the message. Brickman advises judges to explain, in-depth, why Internet research is forbidden, and she also advises attorneys to be aware of the online info that jurors may be seeking out.
“Theres’ all this effort into trying to get jurors to stop doing this, but inevitably, some jurors will look,” she said. “As a lawyer, you want to be prepared for that. You want to know what they’ll see if they look.”
Some attorneys are adapting by putting their own version of the story online, as Martha Stewart’s defenders did to present her position during her insider trading trial.
Ironically, the new media challenge created by the ease of online search has ancient roots. For centuries, judges have fretted about the gossip mill’s effects on small-town trials. The Web just amplifies and broadens that challenge.
“All news is now local, and local news is now global,” Brickman said. “The distinction between what’s local and global is fading away.”