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Sunday, January 10, 2010

Taser-death verdict challenged over juror’s conduct

January 10, 2010
By Andrew Wolfson

A federal jury verdict exonerating a Metro Louisville police officer in a Taser-related death has come under attack after the foreman was accused of researching the case on the manufacturer’s Web site and using the information to sway other jurors.

The case is one of a rising number nationally in which jurors have used iPhones, BlackBerrys and home computers to gather and send information about cases, undermining judges and jury trials.

Attorneys for the estate of Larry Noles, who died in 2006 after officers shocked him with a Taser, want a judge to set aside the Dec. 4 verdict in which the jury cleared one officer and was unable to reach a verdict on another.

Lawyer Garry Adams said in a motion that one day after the jury finished its deliberations a juror called him to say that at least two jurors, including the foreman, whom she described as “the principal advocate for police,” consulted Taser International’s Web site and used information from the site to try to persuade other jurors.

The juror who called Adams, identified only as T.B., later testified under oath, telling U.S. District Judge John B. Heyburn II that both jurors mentioned that the company’s Web site claims that Tasers are “non-lethal” and cannot cause fatal injuries.

“It really, really bothered me that they were using that ... instead of what was really said in the courtroom,” T.B. said.

Heyburn said at the hearing that he saw no need to punish the jury foreman, but he added: “It’s a teaching lesson for all of us that we need to be more careful about our indoctrination of jurors.”

The county attorney’s office has until Jan. 14 to respond to the motion to set aside the verdict. None of the other jurors were named.

It wasn’t clear if the jurors did their alleged research at home or from the courthouse, Adams said.

Jurors are routinely instructed not to read or listen to news stories about cases or research them on the Internet. But with the rise of cell phones and other hand-held devices with Internet connections, an increasing number are tempted to do so, according to press reports and jury experts.

In March 2009, an eight-week federal drug trial in Florida was derailed when reports surfaced that a juror had done outside research on the Internet.

When the judge questioned the rest of the jury, eight others acknowledged they had done the same thing, according to The Jury Expert, a journal published by the American Society of Trial Consultants.

In July 2009, a Bronx, N.Y., juror “friended” a witness on Facebook while the jury was deliberating, and in November 2008, a juror in England conducted a Facebook poll to help figure out how to decide a child sex-abuse case, according to an article in the publication’s November issue.

The authors suggest new rules might be needed, requiring jurors to surrender their mobile phones at the courthouse and to sign oaths to stay off the Web.

Leigh Ann Hiatt, a spokeswoman for the Kentucky Administrative Office of the Courts, and Chief Jefferson Circuit Judge Barry Willett said they weren’t aware of any mistrials in state courts caused by jurors conducting computer-assisted research.

But Willett said he requires jurors in his court to surrender phones and PDA’s before they deliberate.

The Internet allegations in the Noles case came after a three-day trial and jury deliberations that spanned two days.

Noles’ estate claimed that Metro officers Michael Campbell and Matthew Metzler deprived Noles of his civil rights by using excessive force to take him into custody when they found him naked at Seventh Street and Algonquin Parkway, although he posed no threat to them or to the public.

Assistant County Attorney Frank Radmacher, who represented the officers, told the jury that Noles’ death was a tragedy but that the officers followed department policies in trying to take him into custody so he could be brought to a hospital for treatment.

Noles, who was 52 and a Marine veteran, suffered from bipolar disorder.

Metzler was cleared, but the jury couldn’t reach a verdict on Campbell.

At the Dec. 10 hearing on the alleged jury misconduct, Radmacher said the extracurricular research was irrelevant in the case against Metzler because the jurors concluded that he never used his Taser. The Heyburn also said the jury’s deliberations on Metzler’s role “had nothing to do with any research on Taser International.”

As for the allegations against Campbell, Radmacher noted that those are already set for a Feb. 23 retrial because the jury couldn’t reach a verdict.

But Adams argued that the verdict clearing Metzler should be set aside even if there is no proof that it was tainted by Internet research.

He cites cases in which the Kentucky Supreme Court has said even the “appearance of evil” is enough to invalidate a verdict so that litigants and the public can be assured that trials are fair and free from contamination.

Adams said the alleged breach was particularly egregious because the jurors reportedly sought information from the manufacturer’s Web site, rather than a neutral source.

And reinstatement of the case against Metzler could increase the settlement value of the case, he said, since it would involve two officers.

And, he said, the alleged use of improper information by jurors shows the case wasn’t as strong for the county as the results of the trial may have indicated.

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