Facebook Photo Causes Mistrial

by Rick Wetzel on September 26, 2012

The Miami Herald reports on a mistrial which came about as a result of attorney misconduct.  As a Texas criminal appeals lawyer and Texas habeas corpus lawyer, I am generally on the lookout for instances of prosecutorial misconduct.  Sometimes the misconduct can come from the defendant’s own lawyer.

The Back Story

The defendant’s family brought him a bag of fresh clothes to wear during his murder trial.  When corrections officers lifted up the pieces for a routine inspection, defense counsel snapped a photo of her client’s leopard-print briefs with her cellphone.  While on a break from trial, defense counsel posted the photo on her personal Facebook page with a caption suggesting the client’s family believed the underwear was proper attire for trial.  It was also discovered she had earlier posted a message on her Facebook page calling into question her client’s claim of innocence.  The judge soon learned of the posts and declared a mistrial.

Social Media and Fair Trials

Problems with social media conflicting with the Sixth Amendment right to a fair trial usually involve juror misconduct.  Judges across the country now routinely warn jurors about using the Internet, Facebook and Twitter during trials.

Criminal appeals have been successful in a number of cases due to misconduct involving the use of social medial by jurors.  In 2011, the Arkansas Supreme Court threw out a man’s murder conviction and death sentence because one juror repeatedly tweeted during the trial.  In 2010, an appeals court threw out a manslaughter conviction of a Palm Beach County man after a juror used an iPhone to look up the definition of “prudent.”  In 2007, a criminal appeals court in West Virginia reversed a conviction for sexual abuse of two teenage girls because members of the jury had looked up the MySpace profile of one of the alleged victims and shared its contents with other jurors.

Lessons Learned

The leopard-print brief posting public defender was rightfully fired from her job and her former boss said: “When a lawyer broadcasts disparaging and humiliating words and pictures, it undermines the basic client relationship and it gives the appearance that he is not receiving a fair trial.”  A law professor noted that “In today’s digital age, attorneys must recognize that their social media posts, even if meant to be private, can be damaging to their career.”  Clearly, such misguided antics can also be damaging to the client and provide fertile grounds for relief in Texas criminal appeals or Texas habeas corpus proceedings.

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