RICHMOND, Virginia – The Fourth Circuit Court of Appeals has upheld a federal judge’s ruling denying former state Supreme Court Justice Allen Loughry a new hearing.
Loughry, who finished his federal prison sentence last week, had requested a new hearing based on a juror using social media during his 2018 trial. U.S. District Judge John Copenhaver had denied a new hearing, but Loughry’s attorneys appealed to the Fourth Circuit. A three-judge panel upheld Copenhaver’s ruling in a December 21 opinion.
“The long and short of this case is that evidence indicates that Juror A had some pretrial exposure to news of the investigations of the West Virginia Supreme Court justices and participated modestly in the public dialogue via a few ‘likes’ and retweets on Twitter,” the panel wrote. “But evidence further indicates that she engaged in no prohibited contacts or communications during trial. As we have noted, social media does heighten the risk that jurors will be exposed to external information about the case, but here Loughry has failed to make a threshold showing that that risk was realized. In this case, all the evidence points to a fair trial. …
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“The district court, which carefully scrutinized the evidence advanced by Loughry in support of his motion, did not abuse its discretion in denying Loughry’s request for an evidentiary hearing. The court’s judgment is affirmed.”
Paul Niemeyer wrote the opinion for the panel. Marvin Quattlebaum and Albert Diaz were the other judges, and Diaz issued a partial dissent saying he would have allowed a hearing on the juror bias allegations.
The panel heard arguments in the case in October about whether Copenhaver was wrong to deny an evidentiary hearing based on the juror’s social media usage during the 2018 trial.
In the appeal, Loughry’s attorneys say he “seeks only modest relief in this appeal – neither a new trial nor vacatur of is convictions or reversal of the judgement below, but simply an evidentiary hearing on the issues of juror misconduct and bias in his high-profile trial.”
Loughry, 50, was released December 16 from a federal halfway house near Baltimore. He was moved there earlier this year. Loughry, who was assigned BOP inmate number 15022-088, reported to the Federal Correction Institution at Williamsburg in South Carolina on April 5, 2019. The facility in Baltimore generally provides assistance to inmates who are nearing release in the final 3-12 months of their sentences.
Loughry was sentenced to 24 months after having been found guilty of 11 charges of mail and wire fraud, witness tampering and making false statements to federal investigators. He later was acquitted of the witness tampering charge.
Loughry’s original appeal and docketing statement brought up the question of jury bias.
“Juror A was on Twitter during trial and followed some of the most prolific reporters, at least one of whom commented specifically on the weight of the evidence,” Loughry’s July brief states. “The government says Loughry should have presented more evidence – evidence that Juror A actually read the tweets (the existence of which the government does not contest) or evidence that Juror A actively searched for information about the trial.
“But that type of evidence is neither required to justify a hearing nor obtainable without a hearing. If Loughry had that information, he would be asking this court to reverse and order a new trial.”
The brief also said Copenhaver even thought Juror A answered at least two voir dire questions inaccurately.
Loughry’s legal team – Elbert Lin, Nicholas D. Stellakis and Katy Boatman of Hunton Andrews Kurth – say their client is entitled to a hearing on this issue because the minimal standard has been met.
“Juror A was on Twitter at least three times during the six days of evidence,” the brief states. “Juror A followed reporters on the multiple investigations into Loughry, and prior to trial, Juror A had expressed documented interest in multiple tweets relating to Loughry.”
Lin is West Virginia’s former Solicitor General.
Last year, The West Virginia Record spoke to Juror A after District Judge John Copenhaver issued an order related to a sealed motion seeking a new trial for Loughry.
“We were so fair,” the juror, who wished to remain anonymous, told The Record in an exclusive interview. “We took the entire process so seriously. I don’t feel like I did anything wrong.
“Honestly, it really pisses me off. I feel like the 12 of us (the jury) were so fair. We couldn’t have been more fair. Maybe he’s just grasping at straws. But, I know I didn’t violate his Sixth Amendment right in any way.”
“I had never done jury duty. But, it was an eye-opening experience. We actually saw how it worked, and it was very hard. It was extremely hard to get 12 people to agree.
“But, we took our duty very seriously. This is somebody’s husband, father, son. I don’t feel like I did anything wrong.
“Now, I feel violated. They dissected my social media. My whole life was picked apart. And knowing Mr. Carr (John Carr, Loughry’s attorney for his federal trial) went through all of my stuff on social media … it makes me mad. I feel violated.”
Juror A said liking certain social media posts before the trial about the state Supreme Court saga didn’t mean anything.
“I like all sorts of posts on social media,” Juror A said. “That doesn’t mean I agree with all of them necessarily. And, honestly, I can’t remember something I liked online four or six months ago. I barely can remember everything I did yesterday. I’m a busy person. But, I know I was fair as a jury member.”
Juror A said the jury was told to avoid any media coverage of the trial, not to avoid social media completely. Juror A said work commitments required some communication to take place on Facebook.
“We were supposed to avoid anything that pertained to the trial,” Juror A said. “We avoided everything like that. We wanted to get this right because this was somebody’s life. If it were me, I’d want someone to be as fair and thorough.
“Again, we were nothing but fair. We were told to stay away from anything pertaining to the trial, no news coverage. And we did that.”
Loughry’s original appeal questioned whether there was sufficient evidence to support his February conviction on 10 federal counts of wire fraud, mail fraud and lying to federal agents. He was sentenced to two years in prison Feb. 13, 2019, in U.S. District Court on 10 federal counts after being found guilty on 11 during his trial in the fall before Copenhaver. Loughry also was ordered to pay fines and restitution in the amount of $12,273.53. He paid that, according to court records.
Last February, the state Judicial Hearing Board recommended the state Supreme Court follow an agreement signed by Loughry and the state Judicial Disciplinary Counsel. The agreement said Loughry would be disbarred and never seek public office in West Virginia again. Also, the JDC recommended censure, a $3,000 fine and payment of $5,871.12 for the cost of proceeding.
As part of the agreement, Loughry also did not admit guilt to any of the findings by the state panel. But, the agreement states that Loughry admitted there was enough evidence to prove the allegations of two charges of lying to the public, one charge of using a state computer at his home for personal use, four charges of using a state vehicle for personal travel (including trips to The Greenbrier to sell copies of his book “Don’t Buy Another Vote, I Won’t Pay For A Landslide: The Sordid and Continuing History of Political Corruption in West Virginia”) and one charge of being convicted on 10 federal felony counts in October.
"I am fully aware of the seriousness of this matter on me and my family," Loughry said moments before the 94-year-old Copenhaver sentenced him last year. "I do not wish to minimize or trivialize this. I just want to begin the long process of putting some of the pieces of my life back together, including getting a job and becoming a productive member of society."
"This situation has changed my life and the lives of my family forever."
Copenhaver said that was the first time he had heard regret from Loughry through the entire trial process.
"Since the beginning, except for the statement you just gave, I have not seen evidence of remorse," the judge said. "The Supreme Court will recover the trust and respect it rightly deserves."
The mail fraud conviction related to Loughry seeking reimbursement for a trip to a conference despite using a state vehicle and a state-issued gasoline purchasing card.
The wire fraud convictions were about Loughry using a state vehicle and state-issued gasoline purchasing card for personal travel. Some of those trips were for events where he signed copies of his book “Don’t Buy Another Vote, I Won’t Pay For A Landslide,” Loughry’s book about West Virginia’s history of political corruption.
Loughry was removed as Chief Justice in February 2018, and he was suspended in June 2018 shortly after the federal criminal charges were announced. He resigned in November 2018 after his conviction.
“Corruption is a cancer that erodes the public’s confidence in the government and undermines the rule of law,” federal prosecutors wrote in the sentencing memorandum. “As the Supreme Court noted long ago, ‘a democracy is effective only if the people have faith in those who govern, and that faith is bound to be shattered when high officials and their appointees engage in activities which arouse suspicions of malfeasance and corruption.’
“These concepts are particularly applicable when the malefactor is a judge. Here again, Loughry’s own words apply: ‘The overriding public interest in preserving the integrity of the judiciary demands that justices, judges, magistrates, and attorneys be accountable for their damaging behaviors.’”
Fourth Circuit Court of Appeals case number 19-4137