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Juror’s Facebook Postings During Gang Trial|Lead to Legal Morass & Suit Against Judge

SACRAMENTO (CN) - A juror in a gang-related attempted-murder trial has sued the judge, claiming Superior Court Judge Michael Kenny violated his privacy by threatening to hold him in contempt unless he allows Facebook to give the defendant's attorneys Facebook postings the juror made during the trial.

The plaintiff, Juror Number One, says in his federal complaint that Judge Kenny gave him until Valentine's Day to "execute a consent form sufficient to satisfy the exception stated in Title 18, U.S.C. section 2702(b) allowing Facebook to supply the posting made by Juror No. 1 during trial."

Juror 1 says the judge's order violates his privacy and his right to avoid self-incrimination.

The complaint states: "During the criminal trial, while acting as jury foreperson, plaintiff posted on various occasions on his Facebook page to advise his friends that he was serving on jury duty. He occasionally posted updates that he was 'still' on jury duty and, on one occasion, posted a comment that he was bored during the presentation of cell phone record evidence."

Five people were convicted and are still in jail, according to the complaint.

Juror 1 says that after the trial ended, "plaintiff and one or more other jurors from the criminal trial became Facebook 'Friends.' One of the other jurors 'friended' by plaintiff ('Juror Number Five') saw the postings plaintiff had made.

"Sometime after the guilty verdict was returned on June 25, 2010, Juror Number Five contacted counsel for the defendants in the criminal trial and alleged that plaintiff had posted 'comments about the evidence during trial' on his Facebook page, Juror Number Five executed a sworn declaration to that effect.

"Defendants moved to unseal the addresses and contact information for all jurors pursuant to California Code of Civil Procedure, sections 206 and 237.

"Judge Kenny declined to unseal the juror information. Judge Kenny instead exercised his discretion to hold an evidentiary hearing into alleged juror misconduct."

Juror 1 says Judge Kenny held "a lengthy and thorough evidentiary hearing on claims of juror misconduct, including Juror Number One's Facebook postings," in September and October 2010.

The complaint adds: "At the beginning of the proceedings on September 17, 2010, Judge Kenny announced that he would not hold any juror in contempt and was, therefore, going to not appoint counsel for any juror. Judge Kenny's comments regarding the issue of whether or not to appoint counsel for the jurors testifying at the evidentiary hearing were made outside the presence of those jurors who were, apparently, never advised that representation by counsel was an option. Judge Kenny, later in the proceedings stated that he had said he would not hold them in contempt 'for the obvious reason. If I am going to hold them in contempt they get attorneys.'"

Counsel for defendants in the criminal trial subpoenaed Facebook, seeking copies of the postings made by Juror 1.

Facebook sought to quash the subpoena, citing the Stored Communications Act, but defendants' counsel argued that the Act was unconstitutional, "in that it subverts due process and a fair trial by denying criminal defendants access to information needed in their defense while permitting government entities to obtain that information in connection with a criminal investigation."

Facebook then claimed that the defendants could get the information they sought directly from Juror 1, and "attempted to remove itself from the litigation by providing the information to plaintiff's counsel."

The criminal defendants' counsel then subpoenaed Juror 1 for the information.

Juror 1 sought to quash it as overbroad, burdensome and an unreasonable intrusion on his privacy.

On Feb. 4 this year, Judge Kenny gave Juror Number One 10 days to "execute a consent form sufficient to satisfy the exception stated in Title 18, U.S.C. section 2702(b) allowing Facebook to supply the posting made by Juror No. 1 during trial."

Juror One claimed, in the federal complaint filed on Friday, Feb. 11, that Judge Kenny's order unconstitutionally exposes him to penalties for contempt of court.

"Plaintiff is required by the February 4 Order to execute the consent form on or before February 14, 2011. Plaintiff is threatened with a contempt finding if he refuses to comply with the February 4 Order.

"Plaintiff asserts a right of privacy in the posting made during the criminal trial and further asserts a Fifth Amendment right to not disclose the postings as they may be used against plaintiff to assert that plaintiff committed perjury during the Evidentiary Hearing.

"On or about February 8, 2011, Plaintiff filed with the California Court of Appeal, Third Appellate District, a Petition for Writ of Prohibition and Request for Immediate Stay to prevent enforcement of the February 4, 2011 Order. That Petition was denied on February 10, 2011. Plaintiff is seeking review of the Appellate Court's denial in the California Supreme Court but does not believe the California Supreme Court will act quickly enough to prevent violation of Plaintiff's rights if the February 4 Order is enforced."

Juror Number One sued Judge Kenny, the State of California, Facebook, and the five criminal defendants, asserting his right to the privacy of his Facebook postings.

He is represented by Kenneth Rosenfeld and Elizabeth Roth.

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