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	Juror's Tweets Raise Ethical, Legal Questions By Trevor Jones Berkshire Eagle February 12, 2011 http://www.berkshireeagle.com/ci_17367391 PITTSFIELD -- Social media has given a megaphone to people across the globe -- facilitating democratic uprisings and providing a window to the minutiae of daily life. But Wednesday's dismissal of a local man from a Berkshire Superior Court jury shows that the rapid rise of new technologies also presents a host of questions about their legal and practical implications. Great Barrington resident Seth Rogovoy was discharged Wednesday as a member of the jury for the child rape trial of priest Gary Mercure in Berkshire Superior Court. Rogovoy, the editor of Berkshire Living magazine, was removed from the jury by Judge John A. Agostini after mentioning his jury duty several times on Twitter. The removal happened the day before Mercure was found guilty. It was Rogovoy's final posting -- "I am in contempt of court, de facto if not de jure" -- that was brought to Agostini's attention by the Berkshire District Attorney's Office and led to the juror's discharge. In an interview with The Eagle on Thursday, Rogovoy said the post was nothing more than a creative play on words, but in discharging him the day before, Agostini told Rogovoy he had violated specific orders regarding communication of any kind about the case. "The language that you yourself believe that you are in contempt of court, I find is what is telling in this case," Agostini said in trial audio provided by WAMC Northeast Public Radio. Rogovoy contends his postings were harmless and did not violate Agostini's instructions because he did his posting outside of the courthouse and because he made no specific mention of the trial or its location. "It probably looked to him as something much worse than what it actually was," Rogovoy told The Eagle on Thursday. Court officials said Friday that Agostini could not comment for this story because of Mercure's pending sentencing and possible appeal. Berkshire District Attorney David F. Capeless also could not be reached for comment. Rogovoy's case is not unique, however. Jurors have been asked to write letters of apology, and mistrials have been ordered due to outside Internet use, as courtrooms across the country have struggled to find a balance between social media and impartiality. Robert Thompson, a pop culture expert in the Newhouse School of Public Communications at Syracuse University, called it a "brave new world" in which anyone can carry their own portable transmission devices. But the growth of this form of communication also raises questions about how and when it should be used, especially in the courtroom. "A judge gives the jury its marching orders, and the whole notion of objectivity is you're not supposed to talk about this," Thompson said. "Now they've got to add something to the list." Thompson said the key to a situation such as Rogovoy's is the content of his Twitter posts. Though references to the trial remain clearly prohibited, Thompson said, seemingly innocuous statements may be held to a different standard than they once were. "The big difference now with Twitter is that it's access," Thompson said. "When you go home and talk to your wife or your brother, there's no real record, while with Twitter it's out there." Massachusetts Trial Court policy states that jurors, until their service is concluded, are not allowed to discuss the case with others unless authorized. Jurors also are not permitted to read or listen to news reports on the case, use electronic devices to communicate while at trial or during deliberations, or use electronic devices to obtain or disclose information relevant to the case while out of court. Court policy states that these rules are advisory in nature, and violation of them is not considered a criminal or civil infraction. Rogovoy made two other posts referring to being a juror while he was on the panel: "Sucks that you can't tweet from the jury box. What's the fun in that?" and, "I packed a fork with which to eat my salad on break in the jury room. Big fail. Busted! No forks allowed." Judge Robert C. Rufo, chairman of the Massachusetts Court System's Jury Management Advisory Board, said the state's courts are looking closely at new technologies, trying to strike a balance between the rights of jurors and the need to avoid outside influence in a case. "We want to stay away from any extraneous influences that can influence the jury deliberation," said Rufo, a judge at Barnstable Superior Court. Rufo said the issue isn't with jurors telling others they are on a panel. But by doing so on the Internet, he said, jurors open themselves to a wider audience, including outsiders with their own prejudices. "If someone becomes aware that you're a juror on a case that they happen to know about, or one of the parties in the case is a friend of a friend," Rufo said, "they may try to influence, and if they get to them from the outside, that's our worst nightmare." And in high-profile cases, Rufo said, jurors can instantly read news articles online that may also sway their judgment beyond what is presented in the courtroom. Rufo said judges can't prevent jurors from bringing new technologies into the courthouse, but they can appeal to their sense of fairness. "We let them know that if they engage in this behavior it could influence the outcome of the case," Rufo said. "If they were on trial, they would want jurors that are as pure as the driven snow, and that's how we want them to approach these issues." To reach Trevor Jones: tjones@berkshireeagle.com, or (413) 528-3660.
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