Monday, February 21, 2011

WSJ on Jury Selection and Social Networking

Searching for Details Online, Lawyers Facebook the Jury
Attorneys Seek Cues on Potential Jurors in Networking Sites
Leah Nash for the Wall Street Journal.
Josh Marquis has used Facebook in his job as
district attorney in Clatsop County, Ore.

Facebook is increasingly being used in courts to decide who is—and who isn't—suitable to serve on a jury, the latest way in which the social-networking site is altering the U.S. court system.

Prosecution and defense lawyers are scouring the site for personal details about members of the jury pool that could signal which side they might sympathize with during a trial. They consider what potential jurors watch on television, their interests and hobbies, and how religious they are.

Josh Marquis, district attorney of Clatsop County in Oregon, did background searches on Facebook to help pick a jury for a penalty trial last summer to determine if a convicted murderer should get the death penalty. He was looking for clues on how potential jurors might feel about the defendant, a man who killed a couple as a teenager in 1988. The jury imposed the death penalty.

Jury consultant Amber Yearwood in San Francisco found that one potential juror in a product-liability case last year held strident opinions on a host of issues, and dispensed unsolicited medical and sex advice. "Often juries offer opinionated people like that the perfect opportunity to wield their influence," said Ms. Yearwood. The prospective juror was bounced.

Some legal experts oppose this growing practice of scouring social-media sites, arguing that the traditional jury-selection process, which involves lawyers questioning prospective jurors, provides more valuable information than out-of-context online comments.

"I don't think we should abandon that system in favor of Internet snooping," said Jason Schultz, co-director of the Samuelson Law, Technology & Public Policy Clinic at the University of California, Berkeley, law school. "There are a number people who post who they want to be, as opposed to who they are."

Some appellate courts have upheld lawyers' rights to research jurors online, including one in New Jersey that ruled last year that a lower-court judge erred by prohibiting a plaintiffs' attorney from using the Internet in the courtroom. The court wrote: The fact that the plaintiffs' lawyer "had the foresight to bring his laptop computer to court and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining a 'level playing field.' "

Jury selection is not the only way in which social media are altering the nation's courts. Divorce lawyers have used information in social-media posts to extract higher alimony payments from indiscreet spouses, experts and lawyers report. And in some juvenile courts, judges considered what defendants wrote online to help determine whether they were remorseful.

Using Facebook and other social media such as MySpace and blogs are particularly appealing during jury selection because lawyers have limited time to ask questions. Social-networking sites often contain candid, personal information generated directly by the user. "These days, it's the place where people voice their opinions," said jury consultant Art Patterson.

Armando Villalobos, the district attorney of Cameron County, Brownsville, Texas, last year equipped his prosecutors with iPads to scan the Web during jury selection.

He acknowledged that they sometimes dug up only the unprotected tidbits that Facebook users share with everyone, such as their alma mater or favorite band.

Many people, he said, limit access to more telling details to those they have "friended." (It's unclear, for example, what his prosecutors would glean from Mr. Villalobos's own Facebook page, without friending him: It shows he is married and a fan of the TV show "Spartacus.")

Mr. Villalobos is considering a method to get behind the site's private wall to learn more. One option: granting members of the jury pool free access to the court's wi-fi network in exchange for temporarily "friending" his office.

Some citizens in Brownsville are apprehensive about lawyers rummaging through their online lives. "It feels as if they are tapping into our personal lives," said Lazaro Leal in an interview conducted via Facebook. Legal teams aren't convinced by that reasoning.

David Cannon, a Los Angeles-based trial consultant, discovered on blogs that a potential juror in a personal-injury case had made extensive attempts to contact extraterrestrials. He recommended that his clients, who were representing the defendants, not select her. "It just showed an instability," he said.

Paul Kiesel, a plaintiffs' lawyer in Beverly Hills, Calif., said his firm ran searches of social-networking sites during the jury-selection process in a recent sex-abuse case involving a Catholic priest. The case was settled, but Mr. Kiesel said the information would have proved invaluable.

"We could glean whether someone was identified with a religion, and get a sense of how devout they seemed to be," he said. "It's a waterfall of information, compared to the pinhole view you used to get."

Mr. Marquis, the Oregon DA, said that even small details, like a person's favorite show, could say something about them. A predilection for crime shows, such as "CSI: Crime Scene Investigation," tells Mr. Marquis that the prospective juror might have unrealistic expectations that DNA evidence could be obtained from every crime scene.

"It's way more complicated and expensive than it is on TV," he said.

read the piece in the WSJ here

Sunday, February 13, 2011

Astoria's culture of alcoholism

Editor's Notebook:
Astoria's culture of alcoholism nurtures our Municipal Court
by Steve Forrester
Daily Astorian
published Friday, February 11, 2011

‘She is adamantly opposed to any assistance'

To Whom It May Concern:

My name is Nicole Pedersen, and I am the daughter of Janell Voeller. I'm contacting you in reference to her pending DUII cases.

It has come to my attention that Mr. Marquis is attempting to get her Municipal case tried in a court of record, and that her cases in particular may be of significant interest to the DA's office. I'm writing to inform you of the family's support.

My mother does this repeatedly, and has been an alcoholic for well over a decade. There is nothing we as a family have been able to do to curtail her drinking or get her in to a rehab facility. There was an intervention a few years back to no avail.

In short, I'm offering any assistance you deem appropriate. If there's any information I can provide you, I would be happy to do so. If/when it comes time for sentencing I would be pleased to address the judge and explain my concern for repeat offenses. Without treatment, she will certainly continue to offend, and the only way to get her into a rehabilitation program is by a court order. She is adamantly opposed to any assistance.

Further, I've heard that the second case, the County offense, may either fail or be thrown out due to some sort of sampling mistake. I don't know if it helps, but there is a credible witness to the exceptionally erratic driving on Highway 30 that night. An ambulance from Pacific County was travelling eastbound on Highway 30 while he witnessed the vehicle which was travelling westbound not only in the eastbound lane, but in the furthest eastbound lane (this occurred in the dual lane portion of the highway west of Koppisch road). The ambulance driver had to move his vehicle south of the fog line in order to avoid hitting it. He then met an officer on the road who did pull the vehicle over. If need be, I can provide you with the EMT's name. Again, I don't know if it's of value, but I would like to see her be held responsible for her actions, and prevent her from injuring anyone.
Thank you for your assistance,
Nicole Pedersen

The extraordinary letter on this page, written by Nicole Pedersen, stems from this young woman's attempt to cope with an alcoholic mother who was Janell Voeller.

Pedersen sent this letter electronically to the Clatsop County District Attorney's general mailbox on Aug. 12, 2010. She authorized its publication.

Voeller's case was a poster child for what's wrong with the Astoria Municipal Court. The Voeller case stands next to those of Stephen Moore, Sara Leloff and David Lee Gonzalez. In all of those cases, Astoria's court was more inclined to dismiss defendants than it was determined to prosecute them vigorously - and in the case of Moore - to the letter of the law.

The Voeller case is especially significant, for two reasons. It is recent and it depicts a new city DUII prosecutor who has quickly adopted the culture of enabling that shows itself in the Municipal Court cases of Moore et al.

In November 2009, Voeller crashed her car. The arresting officer believed she was on some form of medication. Because the city rarely prosecuted DUII drug cases, the Astoria officer charged Voeller with the crime of reckless driving. She was fined $109, given no probation, treatment or follow up.

In July 2010, the Astoria Police Department arrested Voeller. She blew .10 on the breathalyzer. (the legal threshold for DUII is .08) She was released from jail, drove away and was arrested again for DUII by the Sheriff's Office at 12:30 a.m.

Seeing two DUII arrests on the same day for the same defendant, District Attorney Josh Marquis sought to join the cases. In response, City Prosecutor Mary Ann Murk responded with a refusal to cooperate. When Marquis subsequently wrote a longer request, Murk offered no response, but subsequently told the Astoria City Council Oct. 4 that, "I don't work for the D.A."

Hmmm. Does Murk not work for the rest of us - a citizenry that would like effective prosecution of DUII cases?

On Sept. 17, Voeller died in her living room as a result of a drug overdose and alcohol.

Alcoholism and drunken driving are linked in the concept of diversion, which is offered by the courts to first-time DUII offenders. It is an opportunity to recognize a problem and seek treatment. But when diversion became common throughout the nation, and when Mothers Against Drunk Driving caused states to stiffen their penalties for drunken driving, a defense lawyer in Florida developed a new set of tactics for other defense lawyers. In most American towns, there is a lawyer who specializes in DUII defense, and he works from that playbook.

In essence, the post-MADD defense against drunken driving involves having evidence suppressed and getting cases dismissed. Astoria's Municipal Court is essential to this strategy, for two reasons. It is a relative pushover for a skilled DUII defense lawyer, and it is not a court of record.

If a community wants a fair contest in the DUII cases that enter its courts, there must be prosecutors who can play at the same professional level as the defense specialist. You don't send a part-time batter to the plate against a Major League pitcher, but that effectively is what we do in Astoria Municipal Court. That inequity is further confused by having a judge who is also a criminal defense lawyer.

By assenting to this unfair fight, the Astoria City Council is enabling drunken driving. That may be seen in the Moore, Leloff and Gonzalez cases, and also in the Voeller case. To learn more about these cases see

An alcoholism treatment specialist would say that response to treatment or the shock of a DUII conviction is neither predictable nor consistent. In other words, some alcoholics take a while to get it. Some never get it. It was Astoria Mayor Willis Van Dusen's third DUII adjudication that convinced him to seek help at the Betty Ford Clinic. David Lee Gonzales, on the other hand, had 10 DUIIs under his belt when this newspaper discovered his three dismissals in Astoria Municipal Court.

Van Dusen is central to the Municipal Court discussion, because he is its most dogged defender. His journey to sobriety is at odds with his defense of this court which politely may be called flawed and more correctly called corrupt.

Astoria has a culture of alcoholism. That is where this history of lax prosecution came from. Isn't it time to end this deadly pathology of official enabling?

- S.A.F.

click here for the editorial at the Daily Astorian website

Tuesday, February 1, 2011

Editorial by The Daily Astorian

All Astorians own this court
And we own its enabling of drunken driving.
editorial by The Daily Astorian

In movies about small town justice in the South, one clich├ęd element is the judge who also owns the insurance business or the saloon. The movie’s “aha” moment occurs when the defendant recognizes that the man whom he offended in the bar is now his judge, sitting in robes before him.

We have an element of that Southern movie plot in Astoria. It is the essence of why the Astoria Municipal Court has generated some pitiful adjudication of drunken driving cases over the decade this newspaper has been tracking such decisions. In a Jan. 20 editorial page column (“The rule of law in Astoria”) Clatsop County District Attorney Josh Marquis isolated the malfunction that occurs when a criminal defense attorney plays the role of judge or prosecutor. Astoria Municipal Court has both those elements of role reversal going on every day it is in session.

Now City Hall has responded to Marquis’ column with an open letter from the Astoria City Council, which Chelsea Gorrow reported in Monday’s edition. None of the deliberation behind this letter occurred in open, public session. Mayor Willis Van Dusen’s dialogue with councillors occurred in e-mail, which the newspaper has obtained through a public records request.

Councillor Karen Mellin – whose candidacy in the November election opposed DUIIs being handled in Municipal Court – is now part of the team that wants to preserve DUII prosecution. Mellin’s price was acknowledgement that two cases “were not handled appropriately.”

The City Council’s open letter and the e-mails behind it are useful as a window into the Council’s group-think. But in its attempt to justify running a court that handles drunken driving cases, the Council – not surprisingly – leaves out a lot that has come to light in the past decade.

Our court has coughed up a number of jaw-droppers since the Stephen Moore case in 2002. That particular case was moved to Clatsop County Circuit Court only after The Daily Astorian published details of Moore’s adjudication and urged the city attorney to take action. There was the Sarah Leloff case in 2005 and a collection of David Lee Gonzalez cases spanning 2009-2010. You may read stories about these cases at

During this entire period, the City Council has not expressed the slightest doubt about the competency of the Municipal Court to adjudicate DUII cases. Nor did the Council pause when its Municipal Court judge, Kris Kaino, was cited by an Oregon State Police fish and game officer. That 2001 incident and Kaino’s intemperate response caused the officer to file an official complaint with the state Judicial Fitness Commission. The Oregon Supreme Court subsequently ruled that municipal judges are exempt from state judicial oversight, so the claim was dropped.

In essence, the Astoria City Council has looked the other way for 10 years. Recent history tells us that it is only a matter of time before the next DUII poster child arrives.

The proposal to move all Astoria drunken driving cases to Clatsop County Circuit Court is not rocket science. It is logical, and it would restore an element of judicial and prosecutorial credibility.

We do not expect the City Council to make that decision until it is mortally embarrassed or forced by a higher legal power. The mayor especially is determined to maintain this anachronism.

All Astorians own this court. We own its enabling of drunken driving. And we share in the likely prospect that one of the court’s “mistakes” will kill someone while at the wheel of their vehicle.

by The Daily Astorian
posted on The Daily Astorian website Tuesday, February 1, 2011, 10:45AM
click here for the Daily Astorian editorial page