A former West Virginia chief justice says a juror in his 2018 fraud trial defied an order to stay off social media and followed reporters who tweeted about the case.
RICHMOND, Va. (CN) — The en banc Fourth Circuit seemed unlikely Monday to side with a disgraced former member of the West Virginia Supreme Court who claims a juror’s use of Twitter impacted his 2018 trial on fraud charges.
During a virtual hearing Monday morning, U.S. Circuit Judge J. Harvie Wilkinson III, a Ronald Reagan appointee, referred to the Supreme Court’s 1956 ruling in Remmer v. U.S., in which the high court held a man was entitled to a new trial if an unsuccessful attempt to sway a juror influenced the case.
“I’m concerned about pushing Remmer too far,” Wilkinson said of Allen Loughry’s effort to find out more about a juror’s online activity during his trial. “[If] we start holding evidentiary hearings and probing things, we put very heavy burdens upon jury service because you have to remember these citizens are taking time from their personal lives and disrupting their schedules all in the service of a very noble civic obligation.”
Loughry, 50, was elected to the West Virginia Supreme Court in 2012 and started a four-year term as chief justice in 2017, but resigned in 2018 following a trial in which he was found guilty on 11 of 22 counts, including mail and wire fraud and lying to federal investigators.
Prosecutors say that while on the bench, Loughry oversaw a $353,000 office renovation that included a $32,000 blue suede couch and a $7,500 wood-inlay floor map of West Virginia. Meanwhile, the judge furnished his home with various state-owned property, including a $42,000 Cass Gilbert desk and a green leather couch.
In addition to his misappropriation of state furniture, Loughry was also convicted of using a state vehicle and state-issued gasoline purchasing card for personal travel. He was sentenced to two years in federal prison and was released last December after serving 20 months.
After trial, lawyers for the former chief justice dug into Twitter activity by a juror known as Juror A and found that she had “liked” stories about his charges prior to the trial. They also claimed she defied the judge’s warning to stay off social media during the trial, saying she had liked some unrelated tweets in that time period. She didn’t like any tweets about the case during the trial, but followed two reporters who tweeted about it, according to Loughry’s brief to the appeals court.
Loughry’s defense team asked to use the juror’s limited Twitter history as grounds for gathering more evidence, but a federal judge in Charleston, West Virginia, denied that effort, finding they failed to show “clear, strong, substantial and incontrovertible evidence” of juror dishonesty or bias.
Attorney Elbert Lin with the Richmond, Virginia-based firm Hunton Andrews Kurth told the full Fourth Circuit on Monday that while the few public Twitter interactions might not normally be enough for an evidentiary hearing, they could be used as a starting point to determine any possible prejudice Juror A might have had.
“Both the district court and government put the bar too high,” Lin said, pushing back on a standard that requires proof that “Juror A actually saw highly prejudicial information on social media rather than merely asking if Loughry had made a genuine and credible allegation that this had occurred.”
“If adopted that, novel requirement would significantly undermine the ability of criminal defendants to uncover otherwise unknowable facts,” he added.
But Lin found little support from conservative and liberal judges alike.
“[Juror A] said she would decide this case based solely on evidence, correct? [Under] Remmer, the balance is you don’t have to show prejudice, but the U.S. Supreme Court said we’re protecting the sanctity of jurors from outside intrusions,” said Chief U.S. Circuit Judge Roger Gregory, a Bill Clinton appointee. “You have to show improper contact. What was her violation?”
Lin argued that’s what the evidentiary hearing would uncover, but it didn’t appear to be a compelling argument.
“The limiting principal is not just that a juror is on Twitter, that can’t be enough,” said U.S. Circuit Judge Albert Diaz, a Barack Obama appointee. “We’d never be able to empanel a jury if that was the case.”
U.S. Circuit Judge Paul Niemeyer, another Reagan appointee, was unsure where requests for information about a juror’s social media use would end if the en banc court granted Loughry’s bid for a hearing.
“The problem is you need evidence and you can’t just speculate,” Niemeyer said, pointing to four tweets in the record showing the juror’s interactions with posts about Loughry’s scandal the summer before his trial.
“You’ve got four tweets over four months and they’re fairly innocuous,” the judge added. “Why don’t we bring in every juror and ask them if they searched for improper information? I understand the fear you have. There’s increased risk, but where are we going to draw the line if we don’t have more evidence that isn’t speculative.”
But Loughry’s attorney found some support from U.S. Circuit Judge James Wynn, another Obama appointee. Often one to apply real-world scenarios to an issue rather than going off of precedent alone, especially when disputes involve modern technology, Wynn wondered if the old standard for proving juror misconduct is unable to adapt to the way Twitter and other social media platforms make information available to members of juries.
“When you get into the technology, the problem is we don’t know,” Wynn said, suggesting a simple evidentiary hearing wouldn’t be that much of a burden on a juror. “The answer from my colleagues is don’t look ’cause she hasn’t said anything, but if you don’t look you won’t see anything.”
“It doesn’t work that way in 2021,” he added. “We’re dealing with a whole different world in terms of tech. Why not simply just ask the question, then the judge can make a decision?”
Gregory, meanwhile, thought Wynn was putting too much weight on modern technology. He asked the panel to travel back to the 1950s when all people had was newspaper subscriptions.
“You’re saying because she follows [the reporters on Twitter] she has a connection. Would that not be the same logic as subscribing to a newspaper but not ending her subscription during the trial?” he asked Lin.
“It would be whether she maintained her Twitter account, and we have evidence that she was using it during the trial,” the attorney responded.
“But just because you follow someone on Twitter, that doesn’t mean you’ll necessarily read all the tweets,” Gregory pointed out. “You’re saying every time she tweets, she reads every tweet in her feed. That could be any juror.”
Assistant U.S. Attorney Greg McVey argued on behalf of the government. He said the lower court had the authority to deny the hearing request and that decision was based on the evidence and facts presented.
“One can’t say the court abused its discretion when there was no evidence presented that this juror had been in contact with, through Twitter, these reporters,” he said.
Diaz, however, suggested the record of evidence, direct or circumstantial, could be strengthened if the hearing request was granted.
“Given the nature of the technology, there’s a circumstantial chain of events that began with pre-trial Twitter activity… that she engaged with Twitter,” the judge said. “The nature of this technology is there’s never going to be any direct evidence of someone looking at their feed during trial. That’s circumstantial, but what’s wrong with that? And that’s the kind of credible allegation Remmer is designed to find.”
The judges did not signal when they intended to rule.
Neither lawyer returned a request for comment following Monday’s hearing.