Juror gets contempt for cell phone

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Juror No. 22 was in a Catch-22.

The middle-aged juror, a grain trader by day, was faced with what he called an emergency at work: a train with an unpaid-for load of grain was on the fast track to Mexico.

If he didn't get his employees to stop it before the border, he later said, his company might be out $5.3 million, the value of the grain.

At the same time, the juror was supposed to be weighing every word of a witness in a case of huge importance: a first-degree sexual assault trial of a young man accused of brutalizing a young woman.

The juror had heard Douglas County District Judge James Gleason admonish jurors to give each witness their undivided attention. The judge even specifically instructed jurors to not check their phones or email during court.

But the juror's smartphone was lighting up — and he made a not-so-smart choice. He checked the phone throughout a nurse's testimony about the woman's extensive injuries.

A defense attorney, then a prosecutor, then a law clerk, then a court reporter, then a fellow juror saw him with his phone by his thigh and his head cocked in the familiar down-and-to-the-side phone mode.

With that, the juror earned the dubious distinction of becoming the first Douglas County juror to be kicked off a jury for what has become a national epidemic: Deliberating while distracted.

In the past month alone, an Arkansas murder conviction was overturned because a juror was tweeting about the trial. A California juror was dismissed after court officials discovered that she had posted extensively about a trial and about her fellow jurors on her Facebook page.

Before that, five jurors "friended" one another on Facebook during the embezzlement trial of a former Baltimore mayor — leading to motions to set aside their verdict. Another Maryland court overturned a first-degree murder conviction after a juror researched a scientific term on Wikipedia.

In 2009, at least 21 jury verdicts were overturned because of jurors' online, out-of-line conduct, a national Reuters Legal study found. Likewise, about 30 of 500 federal judges surveyed said they have had to deal with Facebook-posting or Google-searching jurors.

The phenomenon has become so common that comedian Steve Martin lampooned the practice — firing off several tweets while waiting for his own jury duty. "Defendant looks like a murderer," read one. "GUILTY. Waiting for opening remarks." In a tweet five minutes later, Martin changed his mind: "Prosecuting attorney. Don't like his accent. Serbian? Going with innocent."

Of course, the issue isn't a laughing matter to judges or court officials.

The national trend has caused John Friend, clerk of the Douglas County District Court, to read a four-paragraph admonishment to all jurors as they sit in the jury assembly room.

"You must not use any device to search the Internet or to find out anything related to any cases in the courthouse," the admonishment reads. "You must not give anyone any information about the case itself or the people involved in the case. ... This includes face-to-face, phone or computer communications."

Many judges warn jurors again during jury selection — and before every break during the trial.

As further precaution, most Douglas County judges have their bailiffs collect cellphones before jurors enter the courtroom — and then redistribute them during breaks.

Gleason does not. While emphasizing that phones should be turned off, Gleason said, he doesn't seize phones because he doesn't want jurors to feel like prisoners who have lost privileges. He said he may revisit that stance after this month's debacle.

Friend said judges who allow jurors to carry their cellphones into court may be asking too much.

"I'm hooked to this," said Friend, motioning to his phone. "If it goes off, I'm wondering who texted me or who's calling me or what fire I might have to put out — even if I don't look at it. It's a huge distraction."

Indeed, the phone-checking juror became a big distraction in the sexual assault case.

On the second day of trial, a fellow juror handed a note to the bailiff: Juror No. 22 has been on his cellphone in court, it read. His note echoed what the judge had just found out from the attorneys and his court reporter.

The judge was beside himself. He called the juror front-and-center — in a hearing outside the presence of the rest of the jury.

"Do you recall the numerous admonitions that all the jurors have been given?" Gleason asked, pointing specifically to one about the use of cellphones.

"Yes sir," the juror said.

Gleason: "You've chosen to ignore that?"

"I have a serious issue at work," the juror said.

Gleason questioned how serious the issue was compared to a defendant on trial for first-degree sexual assault. He asked the juror why he didn't alert court staff.

"I didn't think it would matter," the juror said.

"It matters, sir," Gleason said. "It matters greatly."

Gleason booted him off the jury and replaced him with an alternate. But that didn't ease the judge's heartburn: With just 12 members left on the jury, the judge noted that he would have to declare a mistrial if any other juror fell out.

But the jury survived the week. The defendant was convicted. And the case was over — though not for the phone-wielding juror.

The judge ordered the juror to appear the following week at a contempt hearing, a process that allows the judge to place the juror in jail or fine him.

The juror hired Omaha attorney Mike Degan. Degan described the juror's work predicament — and how his phone use was not meant "as any disrespect."

The juror apologized profusely.

"I've thought about it every day since then," the juror said. "I wish I had come to you. I'm just extremely sorry for my behavior."

Gleason found the juror in contempt — a rare move. He sentenced him to 40 hours of community service and ordered it to be monitored by the probation office.

A week earlier, Gleason was incredulous when the juror admitted to checking his phone. He pointed out the potential harm to the defendant — and the judicial process. Red faced, the judge cupped both hands to his head before dismissing the juror.

At that point, the juror turned and became confused about which way to exit — through the door to the jury room or the door used by the general public.

"Which door?" he asked.

"Any door is fine," Gleason sighed. "Any door."

Contact the writer: 402-444-1275, todd.cooper@owh.com

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