Last month, two Bronx convictions for criminally negligent homicide were overturned for evidentiary reasons. Firefighters responded to a fire in an apartment building in which tenants had created partitions in apartments to create extra rooms. The new rooms, however, were cut off from both hallways and fire escapes. Due to the lack of escape routes, two firefighters were tragically killed during the fire. A jury convicted the building owners for criminally negligent homicide. Those convictions have now been overturned because, according to the judge, there was insufficient evidence that the defendant building owners actually knew about the illegal partitions.
Another aspect of this recent decision examined a particular juror’s behavior during the trial. One of the jurors, Karen Krell, sent a Facebook “friend request” to a testifying witness, Firefighter Brendan Cawley, during the trial. In her decision, Judge Margaret Clancy found that these actions by Ms. Krell constituted a “serious breach of her obligations as a juror”, but did not quite rise to the level of misconduct that would require overturning the convictions. As it turned out, the convictions were overturned for other reasons, as mentioned above.
Still, scenarios such as this one should compel judges to expand their jury instructions before and during trial. Judges generally instruct jurors not to speak to the witnesses or lawyers in the halls or outside the courthouse during the trial, so as to not create even the appearance of impropriety. Given that we are now in a digital age, judges would be well advised to expand those jury instructions from courthouse space to cyberspace, charging jurors to refrain from contacting any witness by any means, electronic or otherwise, thereby avoiding potentially costly appeals.
While avoiding such cyber-contact with a witness during a trial may (and should) strike potential jurors as common sense, this case illustrates that common sense is often uncommon, and courts should offer more specific and explicit instructions to the jurors.
Thanks to Brian Gibbons for his contribution to this post.