California Superior Court Judge Michael Kenny believes that a juror in a recent gang-related attempted murder trial was posting to Facebook while serving on the jury, and he’s issued an order for that juror to consent to Facebook’s revelation of the activity. Juror Number One has responded by filing a complaint in federal court alleging that Judge Kenny’s order violates his right to privacy as well as his 5th amendment right to avoid self-incrimination.
The complaint (PDF) explains as follows:
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.
The court found out about the postings because Juror Number One became Facebook friends with Juror Number Five after the trial; when Juror Number Five saw the postings, he told the attorneys for the defendants. At that point, the lawyers wanted to find out the contact information of jurors, but Judge Kenny refused to unseal the confidential information. Instead, he scheduled a hearing to investigate alleged juror misconduct.
During the hearing, according to Juror Number One’s complaint, Judge Kenny said he wasn’t going to hold anyone in contempt “and was, therefore, [not] going to not appoint counsel for any juror.” These comments, though, were allegedly made outside of the presence of the jurors “who were, apparently, never advised that representation by counsel was an option.”
After failing to gain access to the postings from Facebook directly, the attorneys for the defendants subpoenaed Juror Number One, who sought to quash it; in response, Judge Kenny issued the order in question, demanding that the juror give his consent to allow Facebook to release the requested information.
Non-compliance with this order, according to Juror Number One, exposes him to contempt charges and is a violation of his constitutional rights, thus the lawsuit against the judge.
So, can the judge make the juror let the court into his Facebook account to see the postings?