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	Big Mouth in the Jury Box By Rosemary Armao Albany Times Union February 14, 2011 http://blog.timesunion.com/armao/big-mouth-in-the-jury-box/286/ I can't see that Seth Rogovoy did anything wrong. He is now, to his aggravation, nationally known as the juror kicked out of court for tweeting in the case of pederast priest Gary Mercure last week. Except that — as he keeps trying in vain to point out — he didn't talk about the case. He knew the rule. We all know the rule. Jurors may not discuss a case even with each other or family until the verdict is in. And Rogovoy, even though a journalist who found himself on the inside of a sensational, big-news case, maintains he did not break the rule. But the news coverage would have you believe that instead of listening to witnesses, the editor of Berkshire Living magazine spent his time in the jury box bent over a smartphone, fingers flying, feasting on what was, without question, a made-for-tabloid criminal case. Mercure was charged with sexual attacks on two boys while he was a priest in the Albany Roman Catholic Diocese in the 1980s. Rogovoy did tweet – he's actually kind of addicted to tweeting and on any given day sends out 10 or so brief and airy messages to friends and followers. But he did this writing on breaks, out of court, and most important he didn't talk about Mercure, altar boys, even what court he was in.The three messages that got him into trouble were: "Packed a fork with which to eat my salad on break in the jury room. Big fail. Busted! No forks allowed." "Sucks that you can't tweet from the jury box. What's the fun in that?" And "I am in contempt of court, de facto if not de jure." He says this was meant as word play about his regard for the court's lack of tolerance for modern technology. Had he been overheard saying any of this to a friend on the phone, nothing would have happened that I can imagine. He did not, as a disturbing number of jurors nationwide have been caught doing lately, use his electronics to conduct research on the case outside of what was being presented in court or to post updates on FaceBook. But just before the last witness took the stand, a bailiff called out Rogovoy's name and asked him into the courtroom. No juror to that point in the proceedings had been singled out, he says, so he joked, "Uh-oh, I'm in trouble." Fellow jurors laughed, but, indeed, he was in trouble. Berkshire Superior Court Judge John Agostini questioned Rogovoy at length about print-outs he had in front of him showing days-worth of Twitter traffic. The judge was not happy, the journalist said he could tell, and he didn't know much about Twitter. He kept talking about "twixting" apparently mixing up tweeting and texting. Rogovoy doesn't know who alerted the court to his tweets — maybe a concerned citizen, maybe a detractor, maybe someone rooting for the defense hoping for a possible mistrial? He has no idea, but that would be ironic. Rogovoy says he had not made up his mind about whether the prosecution had proved Mercure's guilt at the time he was removed, with just one witness and closing statements to go. The remaining jurors convicted Mercure in less than two hours Rogovoy, called a twit, a clown and worse by the upright and righteous who regard the jury system as sacrosanct, actually made a contribution to the judicial system. Because of the controversy there are louder calls to review and update courtroom rules to reflect new technology. Great. Updating is overdue. Only I propose that the new rules be designed to keep courts open, not lock them down in secrecy with an outright ban on all technology and restrictions on free speech. An example of the wrong kind of reforms is exemplified by the current suggestion for a new federal court rule that would read: "You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any Internet chat room, or by way of any other social networking websites, including Facebook, MySpace, LinkedIn and YouTube." I can see that easily happening since already too many courts in this country – including federal courts and the Supreme Court — do not even allow cameras. Transparency in our legal system has always been one of the cornerstones of our freedom. There are no star chambers in America. Well, except for those secret proceedings against alleged terrorists that the Bush administration introduced. The rules also should make clear that settlements involving massive corporate wrong-doing should not be sealed as easily as too many judges are willing to allow. The law allows for privacy only in limited circumstances and not as a way for companies to hide environmental damage and other sins from the public. Defense attorneys too willingly go along with sealed settlements as a way to extract more money for their clients. That is understandable, but not acceptable in a democracy. I'd like to see some rules on whether journalists should be jurors at all. No one wants to grant reporters and editors an out to duck a civil duty we all have to endure. That would be unfair. But de facto, as Rogovoy might twitter, that's exactly what happens. One Internet joke site lists ways to get out of jury duty and along with lack of bladder control there is this tip: "Tell them you're a journalist or writer. It's almost worse than being a lawyer." Lawyers want jurors who are blank slates. Covering court I've always shook my head over all the potential jurors who haven't read a single article or heard a radio report about the big cases they are being ask to sit in judgment on. And then as jurors they are told they don't have to take notes if they don't want, just use their impressions. That goes against the grain of a professional journalist. At age 50 Rogovoy never before sat on a jury. He was shocked when he was selected, he says. During voir dire potential jurors were asked if they'd read about the Mercure case. Sure, Rogovoy responded. Did you have an impression about it from reading the article, he was asked. "I thought, 'Oh, another one,'" Rogovoy said, meaning another priest caught molesting little boys. Had he tweeted that, I'd be with other critics calling for his head. Next, judges should be prohibited from warning jurors against speaking to journalists after a trial is over. Of course, no juror HAS to speak to a journalist. No one MUST speak to a journalist. But when a stern judge, in black robes, seated under a seal of the state, the embodiment of authority tells jurors that they don't have to talk to reporters who are interested in their story, that sounds a lot like an order. And it's an impediment to newsgathering. Do not tell me after reading this that I disrespect the courts. I know that the right to a fair trial is sacred and guaranteed in the Bill of Rights. I just point out that so are the rights to a free speech and press.
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