US Federal Court Refuses Request to Dig into Juror’s Cellphone

Decision considered 'precedent' in four US states

A cellphone and a computer screen display the logo of the social networking site Facebook in a file photograph. Norberto Duarte/AFP via Getty Images

The cellphone and other electronic devices of “Juror X,” whose social-media posts during a high-profile federal case created controversy, will not be subjected to forensic examination, a federal appeals court ruled.

A three-judge panel of the U.S. 6th Circuit Court of Appeals in Cincinnati, Ohio, refused to issue an order allowing a probe of the juror’s devices in the case of  Alexander “P.G.” Sittenfeld, a former Cincinnati city councilman who was convicted of two federal corruption-related charges in July.

However, one of the judges opined that the Sept. 23 ruling goes too far, opining that the decision should have been tailored more narrowly to Sittenfeld’s case. Instead, the 25-page document (pdf) was issued as a “sweeping opinion” affecting cases throughout the four-state region that the court covers: Ohio, Kentucky, Tennessee, and Michigan.

Such controversies over alleged juror misconduct are expected to surface more frequently, experts said, given the near-universal use of electronic devices and difficulty in policing jurors’ use of them during trials.

The U.S. 6th Circuit Court of Appeals in Cincinnati, Ohio, has ruled on a case of alleged juror misconduct involving cellphone use during the trial of a former Cincinnati city councilman. Photo courtesy of the U.S. 6th Circuit Court of Appeals

Courts’ Authority Over Jurors is Limited

While courts possess “inherent authority” to question jurors about possible misconduct, that authority is limited, wrote Alice Batchelder, a senior U.S. circuit judge.

Courts “cannot search jurors’ personal devices and steamroll their Fourth Amendment rights in the process,” Batchelder wrote. That amendment protects U.S. citizens against the government’s “unreasonable” searches and seizures.

Batchelder noted that she and her colleagues, as well as lawyers in the case, were unable to locate any legal case that analyzed “any authority that would empower a court to order a juror to preserve her electronic communications, surrender her electronic devices or submit to forensic examination.”

Therefore, she wrote, the judges were “left in search of some legal authority that would so empower a court.”

Ultimately, the court concluded that a court’s power to examine juror misconduct “does not include an unlimited, inquisitorial power to order jurors to surrender their personal possessions, such as their electronic devices, or to divulge their passwords,” nor can the court “conduct a criminal inquisition.”

Lower Court Judge Decided Correctly, Court Rules

All three circuit judges agreed that U.S. District Judge Douglas Cole, the trial judge, was correct when he denied Sittenfeld’s request for examination of Juror X’s cellphone.

Toward the end of Sittenfeld’s nine-day trial on July 8, a court employee raised concerns that Juror X had repeatedly posted about her jury service on Facebook during the trial, despite Cole’s repeated admonishments that jurors were forbidden from communicating about the case to anyone by any means while the proceedings were ongoing.

However, previous court rulings have shown that “the mere occurrence of juror misconduct, extraneous information, or improper contact” is insufficient to warrant a new trial, the appeals court noted.

After learning about alleged juror misconduct, a defendant is entitled to a hearing to explore whether a juror’s contact with outside influences affected the outcome of the trial.

When such a hearing occurred in Sittenfeld’s case, Cole found no evidence that Juror X’s conduct robbed Sittenfeld of a fair trial.

This cellphone screenshot is among the exhibits that lawyers submitted in the case of Alexander "P.G." Sittenfeld, an ex-Cincinnati city councilman who was convicted of bribery and attempted extortion. His lawyers say a juror violated court rules by repeatedly making posts such as this one about her jury service, from June 21, 2022. Janice Hisle/The Epoch Times

Juror X’s Actions Caused Reactions

In one Facebook post, Juror X opined that a fellow juror, identified as Juror Y, seemed biased against all politicians. Both jurors were questioned behind closed doors. Juror Y denied any alleged bias, and Juror X said she didn’t think her posts violated the judge’s no-communication orders because she didn’t divulge specifics. Juror X also allowed lawyers in the case to look at posts on her cellphone.

Sittenfeld’s lawyers argued for a deeper examination of Juror X’s social media activity, but Cole saw no reason to allow that. That’s why Sittenfeld’s lawyers directed their request to the U.S. Circuit Court in early August.

The lawyers had also sought, under a sealed request, to subpoena Facebook for the records, court records show. Instead, Cole allowed the questioning of two additional jurors. Lawyers interviewed Juror A and Juror B on Aug. 17. Both denied that any extraneous influence affected the verdict.

Jurors are considered “officers of the court,” the appeals court’s ruling said. “Thus, jurors are entitled to a level of respect or deference beyond that of an ordinary witness. We doubt that other officers of the court would submit meekly to a court-ordered search of their cellphones.”

The appeals court expressed concern over the fact that jurors are pressed into service as part of their civic duty, yet “Juror X was treated as a suspect while Juror Y, Juror A, and Juror B were treated like witnesses—reluctant, confused, and offended witnesses.”

Third Judge Concurs But Raises Concerns

U.S. Circuit Judge Julia Smith Gibbons agreed with her colleagues, Batchelder and Circuit Judge Amul Thapar in declining Sittenfeld’s requested probe of Juror X’s devices. But Gibbons wrote a separate opinion that raises interesting legal issues, said Ken Katkin, a Northern Kentucky University law professor who has followed the Sittenfeld case closely.

In her separate opinion, Gibbons said Cole did have the authority to order the cellphone examination if he thought it was warranted. Katkin agrees.

Such an order would be justified only if the judge had “a very strong idea” that the juror’s alleged misconduct could have affected the outcome of the case, Katkin said in a Sept. 26 interview with The Epoch Times. But Gibbons’ two colleagues said Cole lacked that authority in the first place.

“I think I think that’s not right,” Katkin said; he thinks Gibbons correctly stated that Cole did have the authority to order the cellphone probe, if the situation met “a stringent test” for use of that authority.

Gibbons also noted that her fellow judges strayed from their usual pattern of hearing oral arguments and allowing extensive legal briefings “when we set precedent of the type included in this opinion.”

It’s debatable whether the appellate court’s ruling could be classified as a precedent, Katkin said. The majority opinion interpreted Sittenfeld’s request as an “appeal” of Cole’s denial of the cellphone-probe request. However, Sittenfeld’s action could actually be considered a “separate request for emergency intervention in the middle of the case,” Katkin said, which would not be binding on other courts throughout the 6th Circuit.

More Legal Battles May Follow

A lot depends on what Sittenfeld’s lawyers do in response to the ruling, Katkin said.

Sittenfeld was acquitted of four charges but was convicted of one count each of bribery and attempted extortion in an alleged pay-to-play political fundraising scheme. He is still awaiting sentencing.

His lawyer, Charlie M. Rittgers of Lebanon, Ohio, declined to comment about the circuit court’s ruling. Federal prosecutors assigned to the case did not immediately respond to emails seeking comment Sept. 26.

Katkin predicted that similar disputes over jurors’ use of electronic devices are likely to recur. “Although the issue of what to do about improper juror communications with third parties has been around for a while, the ubiquity of social media and mobile phones today means that this issue is going to arise much more than it used to,” he wrote in an email. “In that sense, although these types of cases are not new, their number and the variety of situations in which they arise is new.”