Looking Up Potential Jurors on Social Media

Last year, when teaching jury selection and thinking about the voir dire proceedings in our animal rescue cases, I came across a case in which the parties asked permission from the court to look up the social media profiles of potential jurors and the court refused. The appellate court thought this was proper. This seemed completely loony to me: why would you even ask permission to access publicly available information that people volunteer about themselves, let alone be rebuffed? I cannot find the original case, but I did find a useful summary of the law on the Bloomberg platform, which you can read here in full. Here is the summary they offer:

  1. Check to see if there is a court order or decisional law in your jurisdiction governing reviewing the social media of jurors, and review relevant bar association decisions.
  2. To the extent it is consistent with other obligations and there is sufficient time, trial lawyers should diligently learn what they can from public sources on the internet. Not doing so promptly risks waiving an objection to an unqualified juror. [THIS IS WHAT I WOULD HAVE EXPECTED. IT MAKES SO MUCH SENSE. H.A.]
  3. It should go without saying that trial lawyers should not violate the law by accessing private information on the internet.
  4. Trial lawyers may never misrepresent who they are or why they seek information. This goes for their agents as well.
  5. Trial lawyers should use great care to avoid doing any internet research that might be considered a communication with jurors. Communicating with jurors, even inadvertently, poses the risk of an ethical violation and is potentially offensive to jurors. This means not viewing a person’s LinkedIn profile unless the notification function is disabled. Great care should be taken not to visit other social media that sends an automatic notification regarding who has visited. If the trial lawyer does not understand the technology, he needs to hire somebody who does or forgo using the technology.
  6. Like almost everything that happens at trial, whether and how much to research jurors is ultimately a matter of judgment. A trial lawyer must balance her desire for information about jurors with competing priorities such as preparation of witness examinations and arguments. And a trial lawyer must balance her desire for information with the risk of offending a juror who may feel offended if the juror learns that the lawyer has accessed publicly available information that the juror nevertheless considered private.
  7. If a lawyer finds juror misconduct, he or she should consult the relevant ethics opinions of the jurisdiction. Given the other demands of trial, it probably makes sense to have the relevant ethical decisions on hand and at the ready in the event that juror misconduct is discovered.

Moreover, the ABA website points to several cases in which courts have recognized an affirmative duty to conduct social media research on potential jurors: in today’s world, it can offer an important corrective to things people choose not to disclose in open court. Why would someone divulge private information on Instagram but not in voir dire? Perhaps because people have a warped perception of their own privacy. My students, who have spent summers in lower courts, have told me of situations in which jurors are asked very personal questions (such as whether they were ever sexually assaulted) in open court, including in front of other jurors. I would never ask such a question of a stranger in public; that’s what jury questionnaires are for. But even for less egregious prying, there are ways in which one’s Insta or Facebook can reveal discrepancies and additional details to a degree that I would think essential for a competent lawyer.

Hat er gesagt

A few years ago, during a summer visit to Israel, we took my then-toddler to the beach. He waded and splashed and, at some point, when the elastic on his swimsuit bothered him, he took it off. A man on the beach took great offense to this and came over in a huff to give me a talking-to about the lack of modesty of my three-year-old. “You have no dignity! There are women here!” Etc. etc. I was quite shaken. My dad was sitting nearby and I told him, “did you hear this guy! What a dirty mind he has if he sees sexuality and indecency in little kids!” etc. etc. My dad chuckled, shrugged his shoulders, and said, “hat er gesagt.” It is a Yiddish expression that means, “so, he said.”

I think about this vignette a lot when I see the enormous graphomaniac outpour on issues of campus speech. Group A put up a flyer! Person B tweeted a thing five months ago! Administrator C censored student organization D for a thing they said! University administrator E said something about faculty member F who said something about group G’s heckling of speaker I! Endless recursive applications of the First Amendment to endless interactions. It seems like we pay so much attention to what this person or that group said that we have no energy left to find out what it is that they even spoke about. Instead of feeling the anguish of war and loss, we drown it in righteous anger over what has been said about war and loss or, worse, what has been said about what was said about war and loss. Perhaps feeling righteous anger is easier than feeling fear and groundlessness. Perhaps being removed from a perilous, terrifying situation urges people to find some connection to the situation, so they tangle themselves in some speech imbroglio. I don’t know.

Here’s what I do know: many opinions about political matters are espoused around me. Some of them I find reasonable. Some of them I disagree with but learn something from. Some of them are stupid or ignorant. Other people’s opinions, if they are not expressed directly to me and ask for my response or are in my field of expertise, are not espoused at me, nor are they necessarily my business unless I choose to make them my business. How much of other people’s opinions I choose to make my business is a function of how knowledgeable I am in that area, whether or not I have energy to spare, and what good I think will come of it. Sometimes, when campus speech veers toward hatred and discrimination that I find acute and dangerous, I say something. Sometimes I let it go because I have bigger fish to fry or because I don’t see the upshot of speaking up. There are short term and long term considerations, all of which are mine to make.

I am not going to singlehandedly improve the quickly eroding standard for civil discourse. Neither are you. We do what we can, where we think it will make a difference, and we dole out our energy wisely.

Will the Protean Quality of Profiling Overcome Pretext Stop Reform?

In 2014, Chuck Epp, Steve Maynard-Moody and Don Haider-Markel published their wonderful book Pulled Over. The book is based on a survey of, and follow-up interviews with, more than 2,000 drivers in the tri-state Kansas City metropolitan area, about their experiences being stopped on the road. They learned important things about how the police use routine stops for trifling traffic offenses as fishing expeditions for other possible crimes.

The legal background is as follows: in order to search someone’s car, the police need probable cause that evidence of crime is in the car. The scope of the search has to follow the probable cause (e.g., if there is probable cause that the driver stole a baby elephant from the zoo, there is no permission to search the glove compartment.) Traffic offenses, with the notable exception of a DWI, do not usually encompass the possibility that there is something inside the car related to the offense. Therefore, suspicion of a traffic offense–even when the officer sees it happen–does not manufacture enough justification to search the inside of the car beyond a cursory inspection for weapons. It certainly does not permit the police to open containers within the car, where drugs might be found.

But a traffic offense does manufacture enough justification to conduct a quick stop of the car, and things can develop from there. While interacting with the driver, the officer might give the car a cursory look, to see if anything stands out; the officer might walk a narcotics dog around the vehicle; the officer might ask some questions (“where do you live?” “where are you going?”) to see if any further suspicion develops; and, most importantly, the officer might ask the driver for consent to search the car, which will grant permission for the search even if individualized suspicion is not present.

This, of course, creates a tempting incentive for police officers to stop vehicles for trifling traffic offenses, especially when they have a hunch (and no more than a hunch) that the driver is mixed up in something more serious. At worst, they haven’t broken the law; no harm, no foul. At best, the interaction during the stop could mushroom into justification to search the car, which might yield something. You might think that courts should inquire into whether the traffic violation was no more than a pretext for the stop, but courts do their very best to stop short of such inquiry. In Whren v. U.S. (1996), the Supreme Court held that inquiries into the subjective state of mind of police officers are out of bounds, and that the Fourth Amendment’s requirements are satisfied once there is an objective justification for the stop, no matter how trifling the offense is. Courts in some states, like Washington, have held such stops unlawful based on their state constitution–but even if you’re fortunate to live in such a state, you have to have solid proof that the stop was pretextual.

The problem is likely obvious to readers: without concrete evidence of, say, racial profiling based on how a driver looks or what kind of car they drive, which will be present only in rare cases, cops routinely lie on the stand that they have genuine and pressing concerns and a passion for traffic enforcement, and courts routinely maintain the pretense that these stops are earnest and genuine, which presumably holds up the legitimacy of the system. Pulled Over confirms that this indeed happens on a systematic level. Epp, Maynard-Moody and Haider-Markel found that drivers experience two different kinds of stops: traffic stops for legitimate offenses (“do you know why I stopped you?”) that end in a citation or a warning, and investigative stops (for things as minor as a broken taillight) that then lead to inquiries and fishing expeditions and end, at best, with a bitter, cynical, humiliated driver and at worst, if things escalate, in an arrest.

California is now trying a solution to this problem. Following reforms approved by police commissions in San Francisco and Los Angeles, the California legislature has enacted Senate Bill 50, which you can read verbatim here. The idea is this:

This bill would prohibit a peace officer from stopping or detaining the operator of a motor vehicle or bicycle for a low-level infraction, as defined, unless a separate, independent basis for a stop exists or more than one low-level infraction is observed. The bill would state that a violation of these provisions is not grounds for a defendant to move for return of property or to suppress evidence. The bill would authorize a peace officer who does not have grounds to stop a vehicle or bicycle, but can determine the identity of the owner, to send a citation or warning letter to the owner.

The bill would authorize local authorities to enforce a nonmoving or equipment violation of the Vehicle Code through government employees who are not peace officers.

I remember the jeremiads on Nextdoor when this was first proposed in San Francisco. The concern was that the city would completely give up on traffic enforcement, resulting in accidents and victims. As a two-wheeled vehicle rider (first a motorcycle and now a cargo e-bike) I’m very sensitive to traffic enforcement concerns. But it looks like the worries are overblown, because the low level offense list in the bill is as follows:

(A) A violation related to the registration of a vehicle or vehicle equipment in Sections 4000 and 5352.

(B) A violation related to the positioning or number of license plates when the rear license plate is clearly displayed, in Sections 5200, 5201, and 5204.

(C) A violation related to vehicle lighting equipment not illuminating, if the violation is limited to a single brake light, headlight, rear license plate, or running light, or a single bulb in a larger light of the same, in Sections 24252, 24400, 24600, 24601, and 24603.

(D) A violation related to vehicle bumper equipment in Section 28071.

(E) A violation related to bicycle equipment or operation in Sections 21201 and 21212.

Since the police can capture these minor violations through filming equipment and send citations to people, the bill strikes a good balance between traffic safety and civil rights preservation. It also reflects a clear-eyed perspective on the protean quality of race stops. Efforts to legislate against pretexts, as such, are bound to fail, as police departments will respond by getting cops to testify better on the stand about the reasons for the stops. Efforts to dig up evidence of pretexts via departmental emails will do no more than push these policies underground, into Snapchat and the like. But this effort curtails the use of minor traffic offenses at the root, by preventing these stops in the first place.

I’ve been trying to think how police officers might subvert the bill’s purpose, and the only loophole I can find is this: the bill does allow the stop if “there is a separate, independent basis to initiate the stop or more than one low-level infraction is observed.” We will have reduced the number of fishing expeditions originating with, say, a broken taillight, but such stops will still happen if, say, two of these minor traffic offenses are observed. I

I really hope that someone is doing evaluative research on this. If so, and if someone’s testing this using a survey instrument similar to the one in Pulled Over, the questions I’d be interested in are:

  1. Has the overall number of traffic stops declined?
  2. Has the racial composition of stopped drivers changed?
  3. Has the make and appearance of stopped cars changed?
  4. How many stops now begin with the cop asking the driver, “Do you know why I stopped you?”
  5. How many stops now result in car searches?
  6. How many stops now result in the arrest of the driver? In any violent incident between the cop and the driver?

If any readers are aware of a study currently being conducted, please let me know in the comments.

Arresting Folks with Unsettled Lives

I recently came across an interesting Fourth Circuit case dealing with a situation that is probably quite common: what sort of constitutional protection do people have when their living situation is not clear-cut?

According to Fourth Amendment case law, the police need an arrest warrant in order to arrest A at home (Payton v. New York, 1980), but no warrant is necessary to arrest A in public (U.S. v. Watson, 1976). But there is a third situation: what to do when A is in B’s home? Under Steagald v. United States (1981), an arrest warrant is necessary but not sufficient in this situation: the warrant protects A against unreasonable deprivations of freedom, but does not protect B against the invasion of their premises. So, to arrest A at B’s home, the police need to have two documents in hand: an arrest warrant for A and a search warrant for B’s home (with A listed as the person to be seized therein.)

This is all fine. But it turns out that some people’s situations do not map neatly unto this framework. Enter U.S. v. Brinkley (2020), a 4th Circuit case dealing with a not uncommon person with an outstanding warrant: the international man of mystery with a woman at every port.

Law enforcement agents formed a federal-state task force to execute an outstanding arrest warrant against Brinkley. ATF Agent Murphy received intelligence of two possible addresses for Brinkley, one on, let’s say, Oak Street, and one on, let’s say, Elm Street. Because the water bill for the Oak Street address was in Brinkley’s name, Agent Murphy initially believed that address was Brinkley’s most likely residence.

Detective Stark from the local police force looked on the state law enforcement database and found that Brinkley’s many traffic citations were associated with several addresses. The newest citations referenced the Elm Street address, and Detective Stark reasoned that the older addresses were “probably family addresses” where Brinkley did not reside. He looked up Brinkley’s Facebook page and found pictures of Brinkley’s girlfriend, Marnie, who was also associated with the Elm Street address. Based on this information, Detective Stark concluded that Brinkley and Marnie lived together on Elm Street.

Detective Stark reported his conclusion to Agent Murphy, who came to agree that Brinkley probably resided in the Elm Street apartment. Neither officer was certain that they had uncovered Brinkley’s address, and Agent Murphy later testified that, in his experience, it was “common for someone like Brinkley… to have more than one place where they will stay the night.”

The next morning, Agent Murphy and Detective Stark went to the Elm Street apartment to conduct what both Agent Murphy and Detective Stark characterized as a “knock-and-talk” to “start [their] search for Brinkley.” The officers intended to “interview the occupants to find out if [he] was indeed there,” and to arrest him if he was. Agent Murphy acknowledged that he “had no idea if Brinkley was going to be there that morning,” but thought the Stoney Trace apartment was the “most likely address” to “find Brinkley or evidence of his whereabouts.”

Detective Stark knocked and announced, and after a few minutes Marnie, wearing pajamas, slowly opened the door. The officers could hear movement in the background. Detective Stark informed Marnie that the officers were looking for Brinkley and asked to enter the apartment. Marnie denied that Brinkley was there, and according to Detective Stark, she grew “very nervous”; her “body tensed” and her “breathing quickened,” and she looked back over her shoulder into the apartment. Detective Stark asked for consent to search the apartment and Marnie said she did not consent and asked to see a search warrant.The entire exchange with Marnie lasted a few minutes. Both officers testified that, based on Marnie’s demeanor, the movement they heard in the apartment, and the morning hour, they believed Brinkley was inside.

At this point, the officers decided not to follow the original plan to secure the area and wait to see if Brinkley left the home. Instead, Agent Murphy told Marnie that he believed she was hiding Brinkley and that the officers were going to enter the apartment to serve an arrest warrant on him. They walked around the apartment, found Brinkley in the bedroom, and arrested him. The officers proceeded to conduct a protective sweep to check for others hiding in the apartment. They did not find anyone else, but they did find several firearms and seized them.

On appeal from a conditional guilty plea, Brinkley argued that he did not reside on Elm Street and was there as Marnie’s guest, and that the officers’ warrantless entry was unconstitutional.

The Fourth Circuit sets up the problem as if it is about classifying Brinkley’s situation as a Peyton or a Steagald scenario. But what they actually end up doing is asking two questions that differ from each other. The first one is: how certain do the cops have to be that Brinkley both resides, and is currently present, at Elm Street to walk in there without a warrant? The Fourth Circuit panel concludes that the cops would need to have more than they did in order to walk into the Elm Street address with only an arrest warrant.

But the second question has to do with a different set of concerns: for a guy like Brinkley, who has four or five cribs in town, and lives an unsettled life, where is home? Do you forego the special protection that the Fourth Amendment awards to the home if you have several places you call sort-of-home? Do you have standing in each of these places? What makes home home?

Prison Systems Still Making COVID19-Era Mistakes

The last chapter of our book FESTER, which is already out from University of California Press, is called “The Next Plague.” We wrote it to warn everyone in prison administration, prison litigation, and politics, that if considerable reforms are not sought–chief among which is an aggressive 50% reduction in prison population, which we believe is feasible without a corresponding rise in crime rates–the next plague will provoke calamities in the same way this one has.

Two new pieces of information suggest that things are going the same way they had pre- and during COVID19. The first has to do with prison overcrowding and comes to me from the ever-attentive prison conditions activist Allison Villegas (thanks, Allison!) who diligently follows up the periodic population counts. Take a look at the latest:

Not only is the total number back up to 109,000–more than before COVID–but some prisons are so overcrowded that it looks as if Plata (which required population reductions to 137.5% capacity) never happened. Norco is at 171% capacity; Avenal is at 162% capacity. If Plata applied per individual prison, rather than system-wide (which would make more sense, as we explain in ch1 of FESTER), six prisons would currently be in violation of that standard. The entire system is at 117% capacity (design capacity is fewer than 79,000 people), Plata-compliant but not by much. This should never be the case if we are to maintain minimal healthcare standards and in many ways is the root of much of the evil we saw in Spring 2020.

The second piece of information comes from my colleague Dorit Rubinstein-Reiss. It is a Ninth Circuit decision regarding government accountability for the COVID vaccination fiasco in Oregon prisons, which you can read verbatim here. The lawsuit was brought by people incarcerated in Oregon, and claims that, during COVID-19, they were categorically assigned to a lower priority vaccination tier than correctional officers. In FESTER, we document a similar struggle in California, where the California Department of Public Health initially scheduled incarcerated people to receive the vaccine in tier A2, and then scratched that, to everyone’s amazement. At work, as we explain in the book, and as I explained in this op-ed, was a misguided zero-sum mentality that vaccines in prison somehow come at the expense of vaccines to other people–when, in fact, prisons and other congregated facility acted as incubators and loci of superspreader events. But here in California, the struggle was that, though prison guards were prioritized for the vaccine, they refused to take it, and their union was willing to go all the way to the Supreme Court to fight against it, with Gov. Newsom and AG Bonta’s support. We lost that fight, which is shameful, and this Oregon case is yet more proof of how and why the house always wins these kinds of lawsuits, no matter how meritorious they are: in this case, it turns out that Governor Allen and other state officials have immunity against the lawsuit that stems from the Public Readiness and Emergency Preparedness (“PREP”) Act.

Here’s how the parallel fight went down in Oregon:

The Oregon Health Authority then published guidance recommending phased allocation of the vaccines. In Phase 1A, healthcare personnel, residents in long-term care facilities, and corrections officers were eligible for vaccines. In Phase 1B, teachers, childcare workers, and persons age 65 or older were eligible. Neither phase categorically covered adults in custody (“AICs”), but AICs who met the eligibility criteria were prioritized for vaccination on the same terms as the general population. For example, all AICs who were 65 or older were eligible for vaccination in Phase 1B. The Governor’s initial rollout of the vaccines was consistent with OHA’s guidance.

In response, Plaintiffs amended their complaint to add class claims for injunctive relief and damages, alleging that the vaccine prioritization of corrections officers, but not all AICs, violated the Eighth Amendment’s prohibition against cruel and unusual punishment. On February 2, 2021, the district court certified a provisional class of all AICs who had not yet been offered a vaccine and granted Plaintiffs
preliminary injunctive relief, ordering the immediate prioritization of approximately 11,000 AICs for vaccination. Defendants complied with the court’s order.

In September 2021, when vaccines were no longer scarce, the district court dismissed as moot Plaintiffs’ claim for injunctive relief because all Oregonians (ages twelve and over) were eligible to receive a COVID-19 vaccine and vaccine supply in Oregon exceeded demand. Plaintiffs’ damages claims, however, remained.

Get it? After everyone got sick and died, then the vaccine was available, but by then, of course, the claim was moot. But even the revival of the case is of no avail, because the Ninth Circuit “conclude[s] that the vaccine
prioritization claim falls within the scope of covered claims because, under the PREP Act, “administration” of a covered countermeasure includes prioritization of that countermeasure when its supply is limited.”

This is exactly the point we make in FESTER. What with prevarications, immunities, and continuances, courts adjudicating prison health matters as such are the worst place to seek justice in a timely manner. And since politicians know that protecting incarcerated people, particularly those who are old and infirm, is never an electorally wise move, and that shortchanging and sandbagging the prison population can happen with immunity, how is there ever going to be motivation to vaccinate and decarcerate, the two things that must happen the next time a big one comes along?