No New Trial For Convicted Chief Justice Because Of Tweeting Juror

The United States Court of Appeals for the Fourth Circuit has affirmed the denial of a motion for new trial and an evidentiary hearing sought by a former chief justice of the West Virginia Supreme Court of Appeals

After the former Chief Justice of the Supreme Court of Appeals of West Virginia, Allen H. Loughry II, was convicted of mail fraud and wire fraud for the misuse of public assets, he filed a motion challenging the fairness of his trial on the grounds that a juror — referred to by the district court and the parties as Juror A — allegedly engaged in misconduct and was biased. He requested a new trial or at least a hearing on his motion.

The district court denied Loughry’s motion, concluding that the evidence Loughry presented was insufficient to sustain his claims or even to justify a hearing.

The court thereafter sentenced Loughry to 24 months’ imprisonment, imposed a $10,000 fine, and ordered restitution.

From the district court’s judgment dated February 25, 2019, Loughry filed this appeal, alleging only that the district court abused its discretion in denying his request for an evidentiary hearing to investigate Juror A’s potential misconduct and bias.

For the reasons that follow, we affirm.

The criminal charges

In October 2017, the news media in Charleston, West Virginia, began investigating and reporting about lavish spending of public funds by justices of the West Virginia Supreme Court of Appeals for renovation and refurbishing of their offices, and shortly thereafter a federal investigation ensued. The investigation led to evidence that Loughry removed a historical desk from the court to his home; that he improperly used state vehicles and gas credit cards for personal use; and that he obstructed justice during the course of the investigation. The historical desk, which became prominent in the news coverage, was one that was selected for use in the courthouse in the 1920s by Cass Gilbert, a prominent architect who designed the West Virginia State Capitol, the United States Supreme Court building, the Woolworth building in New York, and other well-known buildings. The desk was thus referred to as the “Cass Gilbert desk.”

In June 2018, a grand jury returned a 25-count indictment charging Loughry with mail fraud, wire fraud, and related crimes. During the same period, the West Virginia Judicial Investigations Commission filed a complaint against Loughry, alleging numerous violations of the state Judicial Code of Conduct, and the Judiciary Committee of the West Virginia House of Delegates began impeachment proceedings against Loughry, as well as three other sitting justices of the West Virginia Supreme Court

The alleged juror misconduct involved Twitter “likes” and retweets

The district court also rejected Loughry’s separate claim that Juror A engaged in misconduct by using Twitter during trial. The court explained that it had never admonished the jurors to make no use of social media during trial. “Rather, the jury was informed repeatedly that the jurors were not to use social media to learn or discuss anything about ‘this case,’” and Juror A’s Twitter activity does not show that she read tweets about “this case.” (Emphasis added).

The court concluded that “[w]ithout even a threshold showing of juror misconduct,” it would not “expend its resources to allow the defendant to pry into a juror’s pretrial conduct and fish for evidence of bias.”

The court

At bottom, we conclude that the district court did not abuse its discretion in denying Loughry’s motion for an evidentiary hearing under Remmer because Loughry failed to make a credible allegation that an improper contact occurred.

The court also affirmed the finding that the juror was not dishonest in voir dire responses.

The long and short of this case is that evidence indicates that Juror A had some pretrial exposure to news of the investigations of the West Virginia Supreme Court justices and participated modestly in the public dialogue via a few “likes” and retweets on Twitter. But evidence further indicates that she engaged in no prohibited contacts or communications during trial. As we have noted, social media does heighten the risk that jurors will be exposed to external information about the case, but here Loughry has failed to make a threshold showing that that risk was realized. In this case, all the evidence points to a fair trial. The jury, including Juror A, assured the court that it was “capable and willing to decide the case on the evidence before it.” McDonough, 464 U.S. at 554 (quoting Phillips, 455 U.S. at 217). And its verdict reflects just that, as the jury acquitted Loughry on several charges.

At bottom, we conclude that the district court, which carefully scrutinized the evidence advanced by Loughry in support of his motion, did not abuse its discretion in denying Loughry’s request for an evidentiary hearing.

Circuit Judge Diaz dissented

The district court—and my friends in the majority—fault Loughry for failing to prove with certainty that Juror A saw the reporters’ tweets. But again, there’s simply no way Loughry could do so without being allowed, at minimum, to question Juror A about  her Twitter use during the trial…

My colleagues also express concern that granting Loughry’s request for a Remmer hearing would open the floodgates to a hearing any time a defendant presents evidence that a juror used social media during a trial. Not so. The mere fact that Juror A used Twitter during the trial isn’t what warrants a hearing here. Rather, Loughry is entitled to hearing because of Juror A’s past Twitter activity, coupled with who she follows (reporters) and the fact that those reporters used Twitter repeatedly to report and comment on Loughry’s trial.

(Mike Frisch)