A man sent to death row for robbing and shooting a teenager after a party should have his murder conviction overturned because a judge wouldn't dismiss a juror caught tweeting during the trial, his lawyer argued Thursday to the Arkansas Supreme Court.
Erickson Dimas-Martinez's attorney told justices the juror was tweeting during her client's 2010 trial for the slaying of Derrick Jefferson, despite the judge's instruction to not to post on the Internet or otherwise or communicate with anyone about the case.
"He's paying more attention to his Twittering than the evidence," said Janice Vaughn with the Arkansas Public Defender Commission.
In one tweet during the trial, juror Randy Franco wrote: "Choices to be made. Hearts to be broken...We each define the great line." Less than an hour before the jury announced its verdict, he tweeted: "It's over."
Assistant Attorney General Eileen Harrison defended the judge's decision to not dismiss the juror, saying the tweets were merely about the juror's feelings and not about specifics of the trial.
"He was not revealing the content of the deliberations, he was not commenting on the evidence, he was not giving anybody any idea that he had made up his mind prior to the jury going into deliberations," Harrison said.
Franco did not immediately return a phone call Thursday, but has defended the tweets in the past.
"None of my texts indicated anything about the trial," he told the Arkansas Democrat-Gazette last year. "I hadn't made up my mind."
Other tweets by Franco made passing references to the trial, with posts such as, "the coffee sucks here" and "Court. Day 5. Here we go again."
Vaughn also argued that the judge should have dismissed another juror who was caught sleeping during the trial. Dimas-Martinez's appeal also argues that a judge should not have told the jury that the Supreme Court would automatically review the case. The court automatically reviews all death penalty cases.
Courts in Arkansas and around the country are grappling with problems caused by jurors using Twitter, Facebook or other online services during trials. In 2009, a Washington County judge dismissed an attempt to overturn a $12.6 million judgment against a building materials company, despite the firm's complaint that a juror's Twitter posts showed bias.
Although a handful of cases have been overturned because of juror tweets, those reversals stem more from a juror showing bias or receiving outside information than just from posting online, a legal expert said.
"Just because the juror has tweeted is not enough to overturn a conviction," said Eric Robinson, deputy director of the Reynolds National Center for Courts and Media at the University of Nevada, Reno. "It really depends on the content and the context of the communication."
Robinson, who blogs about the issue of social media in courtrooms, said part of the problem is that jurors don't understand why they shouldn't tweet or post to sites such as Facebook during trials, even if a judge instructs them not to.
"You can't just say no," Robinson said. "You have to say no and explain the rationale behind it."
Arkansas' model jury instructions include an admonition to not email, blog, tweet, text or post information about the case on social networking sites during a trial. Benton County Circuit Judge David Clinger cited the Washington County case specifically when he told jurors to not tweet, according to briefs filed with the Supreme Court.
"Don't twitter anybody anything about this case," he said.
During the oral arguments Thursday, justices appeared frustrated as they questioned why jurors would be allowed to use Twitter or any electronic device during a trial.
"What if I was up here texting somebody while you were talking? Would that bother you?" Justice Donald Corbin asked Harrison at one point.
Chief Justice Jim Hannah asked whether judges should ask bailiffs to collect electronic devices from jurors so they can't post to Twitter or other sites while in the jury box or during deliberations.
"I think that's probably in this day and age may be a good policy, but that wasn't done and there's no ruling and no indication that has to be done now," Harrison said.
Justices did not indicate when they would rule on the case.
Prosecutors had said during the trial that Dimas-Martinez met Jefferson, 17, at a party in Bentonville in 2006 and robbed him and shot him dead shortly afterward.
DeMillo can be reached at www.twitter.com/ademillo