Guilty by Google

A judge enters a courtroom.

"Ladies and gentlemen of the jury, you are hereby instructed to ignore all technological innovations of the past 25 years. In fact, ignore everything newer than the rotary phone. No, wait, make that the telegraph. Or the printing press. Scrolls and parchment? We hereby ban goose quills. Do any of you know how to read? If so, you are now excused."

Pretty stupid, eh? But that's where we could be headed. According to a story in Tuesday's New York Times, a judge in a federal drug trial declared a mistrial last week after he learned that nine of the jurors had Googled information about the case.

"We were stunned," said the defense lawyer, Peter Raben, who was told by the jury that he was on the verge of winning the case. "It's the first time modern technology struck us in that fashion, and it hit us right over the head."

The juror who'd originally told Judge William J. Zloch she'd been guilty of Googling had discovered information about the case Zloch had specifically excluded. When he found out eight others had done the same thing, he 86'd the entire trial, eight weeks in.

(My question is, what was wrong with the other three jurors?)

Meanwhile in Arkansas, a building products company called Stoam Holdings is disputing a US$12.6 million judgment against it because juror Johnathan Powell tweeted from inside the courtroom as the decision was announced. To wit:

"So Johnathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else's money."

The company's attorneys are pushing the idea that Powell was "predisposed toward giving a verdict that would impress his audience." Yeah. I buy that. I always make multi-million-dollar decisions just to wow my tweeps.

Apparently, the legal industry is finally waking up to the digital revolution. But what has changed, exactly? Just speed and convenience.

There was nothing in the past that could stop a determined juror from going to the library or the county courthouse and researching a case, aside from the judge's admonitions against doing it. Google is no different, it's just a lot more convenient. And when it's on your cell phone, you don't even have to leave the jury box.

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You could walk out of the courtroom and tell everyone you meet that you just handed out $12M, or you can tell everyone at once on Twitter. As the kids say, same diff.

Technology is brutal about exposing inefficiencies in old models. It is much easier to rip an MP3 and post it to a file sharing server than it is to stand next to your stereo with a handheld mic and hand out bootleg cassettes at a swap meet, but the deed is essentially the same. The Net has exposed inefficiencies in the old eyeballs-based advertising model (and publications are dying in droves as a result). It's about to do the same to TV advertising, if services like ZillionTV take hold.

The legal system, being hidebound and backward in all things, had largely been spared. Not any more. Communications technology has demonstrated just how inefficient it is. Now it has to change in a hurry. And sequestering all jurors in a locked, technology-free room probably isn't going to work. Per the NYT article:

There appears to be no official tally of cases disrupted by Internet research, but with the increasing adoption of Web technology in cellphones, the numbers are sure to grow. Some courts are beginning to restrict the use of cellphones by jurors within the courthouse, even confiscating them during the day, but the majority do not, Mr. Keene said. And computer use at home, of course, is not restricted unless a jury is sequestered.

I've served on juries. In every one, the judge severely warned people about discussing the case with fellow jurors during breaks. And what do people talk about the second the bailiff leaves the room? It isn't what the judge may or may not be wearing underneath those robes.

People are people. They aren't going to change. Technology is certainly not making a U-turn. So now the courts must adapt.

Want to re-form the jury process? Stop letting highly educated, high-income people skip out on it. In my jury experience, I was one of the rare professionals in the room. Mostly I was surrounded by retirees and the un- or under-employed.

A jury of my peers understands the Internet and probably has a pretty powerful phone in his or her pocket. That's whom I'd want to see in the jury box. And if they Google me and find out all the nasty things I've written, well, I'm screwed, I guess.

When the crime is excessive sarcasm with intent to snark, I plead guilty as charged.