Facebook infringes on Ky. trial's jury selection

Two jurors 'friends' with deceased's mom

The Associated PressSeptember 21, 2012 

LOUISVILLE — After 11-year-old Destiny Renee Brewer died in a truck crash in Eastern Kentucky, the child's mother created a Facebook page in her memory. Now, that page is at the center of a precedent-setting case over whether the Internet can interfere with a juror's role in deciding a murder case.

The Kentucky Supreme Court on Thursday ordered Martin Circuit Judge John David Preston to hold a hearing on whether jurors were truthful in pretrial questioning. The hearing is also to examine whether exposure to the Web page affected jurors in the case of Ross Brandon Sluss, 28, who is serving life in prison after being convicted of murder, assault and tampering with physical evidence.

The case is the first to draw Kentucky's high court into the sometimes murky world of who on Facebook is actually a friend, as opposed to being a mere acquaintance or just someone who happened to stumble across the page. Justice Mary Noble cited the fact that people can become "friends" with celebrities, politicians and people they've never actually met.

"Thus, a Facebook member may be 'friends' with someone in a strictly artificial sense," Noble wrote.

Allison Gardner Martin, a spokeswoman for Kentucky Attorney General Jack Conway, declined to comment on the specifics of the case because a new hearing is pending.

"However, the opinion does provide much-needed guidance for all attorneys concerning the use of social networks (before, during or after a trial) and the impact it could have on cases," Martin said.

Jerry A. Patton, a Prestonsburg attorney representing Sluss, did not immediately return a message seeking comment.

The case, though, fits into the larger trend of social media impacting the judicial system, said Charles Rose, a law professor at Stetson College of Law in Clearwater, Fla. Rose, who is not involved in the case, said having Facebook connections play a prominent role in the validity of a conviction is unusual. Most cases tainted by the Internet or social media involve jurors researching the background of defendants, evidence or looking up Google views of the scene, Rose said.

This case, though, poses the question of when a Facebook relationship started and how close that relationship actually is, Rose said.

"Is being a friend on Facebook truly considered having a relationship?" Rose said. "If you are below the age of 30, you probably answer yes. It is a changing world from the standpoint of jury selection."

In this case, Destiny's mother, April Brewer, had about 2,000 "friends" on the social networking site when Sluss' attorneys discovered two jurors among those listed. Martin County, along the Kentucky-West Virginia line in the rural, Appalachian part of the state, has a population of just less than 13,000.

Noble concluded it would not be uncommon for someone to know, even in passing, most of the people in the community. Being a "Facebook friend" of the family member of a victim is not enough to warrant a new trial, Noble wrote.

"The problem in this case, however, is the jurors also appear to have made misstatements" during jury selection, Noble wrote.

Preston excused more than 50 jurors because they either knew too much about the case or had connections to Brewer's family. To become associated on Facebook, one party must approve the "friendship" with the other person, Noble wrote.

"In either situation, the 'friendship' that the jurors had with April was not happenstance; there was an affirmative act to connect the parties," Noble wrote.

The two jurors with the Facebook connections didn't disclose their "friend" status on the social networking site, Noble wrote.

Because of that, Sluss' attorney could not properly question and evaluate the nature of the relationship, Noble wrote.

Noble ordered Preston to consider the relationships at a new hearing and, if he finds the two jurors should have been struck from the panel, to award Sluss a new trial. If Preston decides that the relationship wasn't close enough, the judge should spell out his reasoning in a written order, Noble wrote.

Rose expects the issue to arise more often in the future.

"This is not going to go away," Rose said. "It's only going to get worse."

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