RICHMOND, Va. — The panel of judges from the U.S. Court of Appeals for the Fourth Circuit heard an appeal regarding a juror's social media interactions during the trial of former state Supreme Court Justice Allen Loughry.
One of the judges said the issue is with the technology.
"Just conduct a simple hearing, and when you conduct a simple hearing, you will find the answers, but to begin this process as though you understand Twitter's technology in relation to social media and not inquire as to, well, she's following these reporters — which she shouldn't be doing, and not every juror is doing that — and so when you get into the whole question of the technology here that's the problem here with this case is that we don't know," the judge said.
The judge said the answer from some of his colleagues here would be just to not look and you won't see anything.
"But it doesn't work that way in 2021," he said. "We're not back 30 or 40 years ago, we're dealing with a whole different world in terms of technology and when you've got people following people online that ought to be making decisions in the case — and these are people who are reporting on the case," he said. "Why not simply ask the question and that's all you've got to do and then the judge can make a decision. but to just blow it aside and not do it, I don't get that."
Elbert Lin, who was representing Loughry in the appeal, said that is definitely the concern.
"When you see a tweet, there's no public trail," Lin said. "if you like a tweet, it means that you've affirmatively decided to indicate publicly that you not only saw it but you like it. To know what does 'like' mean to a particular individual that's not clear, but that leaves the trail that you've actually seen it."
Another judge didn't think the social media interactions from before Juror A was even on the jury should matter.
"It seems like you're punishing her for being an avid reader, an avid follower, if you will, just like people who read the paper," the judge said. "Forty years ago people read the newspaper. That's why you said, 'did you read anything in the newspaper about this?' Now it's this. It seems like you're punishing her when she was a pre-juror. She's not a juror, she's a free citizen before she's on the jury."
The judge said Loughry's side was aware if she knew something about the impeachment.
"You knew there was an overlapping of facts of impeachment in this case and you had an opportunity, the judge did a great job and give you a chance ... ask the questions," the judge said. "You didn't ask what was the source of your information about impeachment you didn't ask anything about social media. You didn't ask who it was. You had that opportunity to do it. Now that it's over, you want to take her non-jury contact and following. Now you can put her through the gauntlet of questioning when you have the opportunity to do so yourself. And you don't have any evidence that she read any tweet as a juror. You just said because she did this before it's likely she did it again. Is that enough ... when you're looking for proper contact?"
Loughry has been attempting to raise questions regarding his 2018 trial and whether or not he got a fair trial.
Loughry was elected to the state Supreme Court in 2012 and served as Chief Justice in 2017. He resigned from the court after he was impeached by the Legislature and arrested by the Federal Bureau of Investigations. He was convicted in 2018 on 11 federal felony charges, including mail fraud, wire fraud, witness tampering and lying to federal agents. He served a federal sentence and was released in December.