Feb 052011
 February 5, 2011  Posted by  Court, Online

Andy Furillo reports that a juror’s Facebook postings during a trial have become the subject of a court order. The defense attorneys want to see if anything the juror posted indicates bias or impropriety – including being influenced by others.

The Facebook fight under way in a Sacramento courtroom pivoted into new territory Friday when a judge gave a juror 10 days to turn over postings he made during a gang beating trial last year or face possible jail time.

An attorney for juror Arturo Ramirez protested the order by Sacramento Superior Court Judge Michael P. Kenny and said he would appeal it as high and as far as he can.

“It’s a matter of principle and privacy,” lawyer Kenneth L. Rosenfeld said. “There’s no reason this material should be turned over. We’re putting a burden on jurors that’s going to make them not want to serve on jury duty. The entire system collapses without people wanting to serve on jury duty.”

Friday’s hearing had shaped up as a constitutional contest between Facebook and defense lawyers for reputed members of the so-called Killa Mobb gang who said their clients needed the postings to make sure the juror wasn’t biased when he voted to convict them. Facebook countered that the disclosure was precluded by federal computer privacy law.

Kenny short-circuited the constitutional battle with his order Friday that the juror – who was not present in the packed courtroom – allow Facebook to make the postings available for judicial review in chambers. The federal Stored Communications Act allows for such disclosure if the individual party agrees to it, if it is requested by law enforcement agencies investigating a crime or by court orders in ongoing criminal investigations.

Read more in the Sacramento Bee.

What I don’t quite understand is how you can order someone to consent to something to qualify for an exception under the law. If you’ve ordered them to sign a consent form under threat of contempt of court, jail, or fine, are they really truly consenting within the spirit of the law, if not the letter? How is this not “waive your rights or we’ll waive your freedom?”

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