Metropolitan News-Enterprise


Monday, June 4, 2012


Page 1


C.A. Upholds Order That Juror Disclose Facebook Postings


By a MetNews Staff Writer


The Third District Court of Appeal has upheld a Sacramento Superior Court judge’s order requiring a juror to submit his Facebook postings from a case involving a gang beating for in camera inspection.

The justices Thursday denied a petition for writ of prohibition brought on behalf of the juror, and lifted a previously ordered stay. Judge Michael Kenny, they concluded, acted within his authority in ordering the juror to execute a consent form allowing Facebook to turn over the postings.

The juror was identified in the order only as “Juror Number One,” but the Sacramento Bee has reported that his name is Arturo Ramirez.

Ramirez’s first petition was denied summarily by the panel. The state Supreme Court, however, directed the panel to “issue an order directing respondent superior court to show cause why the relief sought in the petition should not be granted.”

Kenny, who at one point sought to compel Facebook to submit the postings to the court, issued a new order compelling Ramirez to execute a release.

Ramirez, the newspaper said, had posted during the “Killa Mob” trial that he was on the jury and that on at least on one occasion he found the proceedings “boring.” Defense lawyers in the case are asking for a new trial on the ground of juror misconduct, and want to see if the postings support their claim of bias.

Five reputed members of the gang were convicted in the beating of a man in a gas station on Halloween 2008.

Facebook had said that federal computer privacy law precluded it from turning over the postings on its own and that the company needed a search warrant, a court order or the consent of the user before it would make them available to the court. The judge said the postings violated the routine judicial admonition that jurors not discuss ongoing cases.

The Legislature subsequently enacted AB 141, which revised the admonition to state explicitly that electronic communications while the trial is in progress are prohibited.

Justice Harry Hull, writing for the Court of Appeal Thursday, rejected the juror’s contentions that the order violates the federal Stored Communications Act, as well as the Constitution.

The Secured Communications Act, Hull noted, prohibits a “provider of electronic communication services” from divulging “the contents of a communication while in electronic storage by that service.”

The jurist questioned whether Facebook is a provider of electronic communication services within the meaning of the act. But even if it is, he said, the statute does not apply because the order is directed at Ramirez, not Facebook.

Hull went on to rejected the juror’s constitutional claims as well.

Ramirez, he said, offered no more than speculation in asserting that the dissemination of his posts would impair his Fourth Amendment right to freedom from unreasonable search and seizure or his Fifth Amendment protection against self-incrimination.

Nor is there, at this stage of the proceedings, a valid claim that Ramirez—who told the trial judge he had posted nothing of substance about the trial on Facebook—has a reasonable expectation of privacy, the justice said.

Privacy rights, Hull explained, are not absolute. Noting that the trial lasted two months, and that Ramirez admitted posting to Facebook every other day during the trial, an examination of the posts is essential to determine whether the defendants are entitled to a new trial, the justice said.

“The present matter no longer involves a claim of potential misconduct,” he wrote. “Misconduct has been established without question.  The only remaining issue is whether the misconduct was prejudicial.  This cannot be determined without looking at the Facebook posts.”

Presiding Justice Vance Raye joined in the opinion, while Justice Louis Mauro concurred separately.

Mauro expressed concern as to whether compelled consent to the release of otherwise private communications is actually consent. But he agreed that a balancing of the juror’s privacy interests against the defendants’ right to a fair trial supports the order that the posts be produced for in camera inspection.

The case is Juror Number One v. Superior Court (Royster), 12 S.O.S. 2692.


Copyright 2012, Metropolitan News Company