Police Blotter: Did blogging juror affect DUI trial?

Court of appeals upholds conviction of drunk driver who asked for a new trial because of a juror's blogging.

Police Blotter is a weekly News.com report on the intersection of technology and the law.

What: Defendant convicted of drunk driving and felony intimidation of a police officer appeals, saying a juror should not have been blogging during the trial.

When: Ohio Court of Appeals, Sixth District, rules on November 2.

Outcome: Conviction upheld and request for new trial denied.

What happened, according to court documents and other sources:
Ohio police found Jeffrey Goehring one evening in September 2005 on the side of the road trying to drive a truck out of a ditch, with little luck. The rear tires were spinning.

Goehring's girlfriend said she was the driver, and she was promptly arrested after police claimed she shows signs of being intoxicated. Goehring became confrontational, was squirted with pepper spray in his eyes, and then tossed into the back of a police car.

During the ride to the Ottawa County jail, Goehring allegedly was yelling at Patrolman Eric Parker, saying: "When I get out of jail, I'm coming for you. You're a dead man. I'm coming to your house to get you." Similar threats were allegedly captured on videotape at the police station.

Prosecutors charged Goehring with a litany of offenses: driving with a suspended license, driving under the influence of alcohol, intimidation of a public servant, intimidation of a witness, and criminal damage for kicking at the police car's door. The intimidation counts are felonies. A jury convicted him in April 2006 on all counts, and he was sentenced to eight years and nine months in prison.

After the jury's verdict, Goehring's defense counsel discovered that one of the jurors was blogging about the case--both before and after the guilty verdict was announced. Alleging juror misconduct, Goehring asked for a new trial, which the judge denied.

Blogging jurors have become both a window into how the court system works and a headache for judges. A Law.com article noted one case in New Hampshire about a blogging juror who called criminal defendants "riff-raff."

Legal blogs have puzzled over the question of what kind of court-blogging is permissible. There's a roundup of juror-bloggers and even live-blogging taken from Wi-Fi-equipped courtrooms.

In Goehring's case, the appeal didn't work. An Ohio appeals court ruled that the trial judge did not abuse his discretion, and it upheld the guilty verdict.

Excerpts from appeals court's opinion:
In appellant's motion for a new trial, based upon newly discovered evidence, and trial counsel's affidavit in support of the motion, counsel indicated that, on July 2, 2006, he was searching for newspaper accounts concerning appellant's sentencing hearing when he inadvertently discovered the "blog" of one of the jurors in appellant's trial.

On April 4, 2006, the first day of appellant's trial, this juror wrote: "Serving on this case just goes to show how opinionated I am. Perhaps I'm more of a leader than I'm willing to give myself credit for. But, I dare anyone to cross me on this verdict." Later in the blog, however, the juror stated: "Well...I can't talk about the case dammit, and that's so highly frustrating."

On April 6, 2006, after the jury had returned its guilty verdict, the juror wrote: "Well, it figures. Had a horrible time not being able to talk about the case. But now after finally having deliberations, it's like bleh, I don't want to talk about (it) anymore...Basically, I feel like I was the only (person) playing devil's advocate and presuming this guy was innocent...." The blog then goes on to discuss the evidence in the case and how the evidence adduced on the second day of trial convinced the juror/blogger that appellant was guilty.

Appellant claimed that the April 4, 2006, blog improperly discussed the case on the first day of trial and showed that the juror had "pre-decided the verdict." Appellant also asserted that this blog contained an implied threat to any jurors that might disagree with him. Appellant urged that the test for juror misconduct was met because the juror in this case "not only composed an online journal regarding the case while the case was still pending, but did so in an area where jurors once acquainted with the 'blogger' from meeting him during jury service could immediately become exposed to public commentary about the case and implied threats against anyone who 'crossed' him in regards to the verdict. Additionally, the existence of the blog and its copies are independent, verifiable evidence that misconduct occurred during the course of the trial."

After holding a hearing, the trial court determined that the comments made on April 4, 2006, did not express any bias as to a guilty or not guilty verdict. The court below further determined that the juror's April 6, 2006, comments were post-verdict; therefore, he could speak freely.

In order to find an abuse of that discretion, we must determine the common pleas court's decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment.

We can find no such abuse. While the profanity used by the juror on his blog on April 4, 2006, may be offensive, that juror makes clear the fact that he cannot discuss the case while it is pending. Further, while the juror states that he is opinionated, there is no indication in the message as to the gist of his opinion. Moreover, there is no evidence in the record of this cause establishing that any of the other 11 jurors saw the blog either during or after appellant's trial. Thus, we find that the trial court did not abuse its discretion in finding that no juror misconduct existed as a result of the April 4, 2006, blog...

The judgment of the Ottawa County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal....

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