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?”