Gunshanan v. Pulmonary Practice (Orlando, Florida)
Instead of helping decide a court case, a Florida juror could face jail time himself after his Facebook posts caused a mistrial this month in a complex medical malpractice lawsuit.
Alexander Duff made a post to his profile on the social networking site saying he made a decision about a verdict in a wrongful death case, even though it was still underway. Jurors receive strict instructions not to discuss a trial outside the courtroom or to make any decisions before receiving instructions from a judge.
"Think I have one more day of jury duty, thank God," wrote Duff in a status update on his Facebook wall, amongst other posts apparently trying to get friends to see a movie with him, according to images of his profile included in a court order. "Tomorrow we gotta make a decision who has the greater weight of proof between the plaintiff and defense, and I know my answer."
He went on to describe the trial proceedings as "unbearably boring…lol."
The case settled while Judge Lisa Munyon considered a motion for a mistrial, made by defense attorneys when they became aware of Duff's online comments during the trial. She also set a date later this month for Duff's arraignment on criminal contempt charges, which judges can use to penalize trial participants for violating court orders and can sometimes carry jail sentences.
Judges have broad discretion in sentencing for contempt violations, and the high-stakes in the underlying trial Duff was considering may not weigh in his favor. In the case, a widow blamed doctors for failing to detect her husband's fatal lung cancer before it became inoperable. This was the second time the case went before a jury after an earlier unrelated mistrial, and rather than face the costs of a third trial the parties reached a settlement.
After the defense attorneys asked for a mistrial, Judge Munyon took the motion under advisement and allowed the jury to reach a verdict. The jury awarded the plaintiff, Peggi Gunshanan, $810,000 in damages, which were then voided when Judge Munyon granted the mistrial. Gunshanan's attorneys, Scott Bates and James Dill of the law firm Morgan & Morgan, did not respond to a request for comment.
"The Facebook post caused considerable uncertainty as to whether a verdict would ultimately stand," said Clay Coward, an attorney for with the law firm Wicker Smith, whose client was found not liable by the jury. He expressed sympathy for Duff's situation, stating the judicial system needs to make clear the instructions jurors receive in the courtroom extend to the world of social media. "I am reluctant to criticize any juror who has taken two weeks away from his or her job and family to do his civic duty of serving on a jury," said Coward.
But claiming the court's instructions were not clear regarding social media may not be a viable defense for Duff. In copies of pre-trial instructions obtained from the court, Judge Munyon told jurors, "You must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all."
According to Dr. Cynthia Cohen, Ph.D., a trial consultant with Verdict Success, the feelings expressed by Duff are nothing new for jurors, but the use of social media increases their chance of getting caught. "Whatever happened around your dining room table twenty years ago, they (the court) didn't know about," said Cohen. "You have drawings of juries from hundreds of years ago, and there are people sleeping."
However modern jurors face much closer scrutiny, since according to Cohen monitoring the social media activity of jurors is standard for almost any trial team. It would certainly take place on a trial of this scale, she said, which is how Duff's comments were first noticed. Usually when jurors communicate online about a trial, they often simply are not aware of the real impact social media activity can have in the courtroom, said Cohen. "Most of the time they're not even realizing it."
Duff's arraignment is set for August 31, which at least gives him enough time to update his privacy settings.
The original trial, which was webcast in full by Courtroom View Network, is Peggi Gunshanan v. Pulmonary Practice of Florida, et al., 2007-CA-010988-O, 9th Circuit Court of Florida.
Read the Court's show-cause order for indirect criminal contempt. The arraignment is scheduled for August 31, and the show-cause hearing for October 7.