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#Benchslap: Appeals court slams St. Louis circuit attorney for tweets

St. Louis Circuit Attorney Jennifer Joyce does something rare for a Missouri prosecutor: She tweets prolifically.

Jennifer Joyce

Jennifer Joyce

Joyce said she views Twitter posts as a way to “engage the citizens” and let them know what happened after initial news reports on a crime.

But a Missouri appeals court said last week that Joyce’s tweets in a 2012 child-rape trial came too close to crossing an ethical line. That line, drawn in Missouri Supreme Court rules, includes one aimed specifically at prosecutors. It is meant to prevent outside information from influencing juries.

The three judges on a panel of the Missouri Court of Appeals Eastern District upheld the conviction for the 1992 rape of an 11-year-old girl but said they were “troubled” by Joyce’s tweets, particularly their timing.

“I have respect for attys who defend child rapists. Our system of justice demands it, but I couldn’t do it. No way, no how,” Joyce tweeted during the trial, among other remarks, according to the opinion.

“Broadcasting such statements immediately before and during trial greatly magnifies the risk that a jury will be tainted,” Judge Lisa S. Van Amburg wrote. Judges Patricia L. Cohen and Gary M. Gaertner Jr. agreed with the opinion.

But Polk “failed to present evidence that the jury was substantially swayed” by Joyce’s comments, according to the opinion.

Joyce’s Twitter feed already spurs St. Louis District Defender Mary Fox to ask potential jury members if they follow Joyce’s tweets and request that they be struck from the jury if they do.

The ethical question raised in the opinion also could provide fodder for bar complaints.

“I think we will need to evaluate whether to file a bar complaint or ask our client if he chooses to file a bar complaint” if Joyce comments on a case, said Fox, of the Missouri State Public Defender System.

An attorney from Fox’s office represented Polk in trial, but Fox declined to comment on Polk’s case.

Joyce said she’s careful to avoid any comment that could influence a jury.

“I take very seriously my obligation to uphold the defendant’s right to fair trial,” Joyce said in a phone interview. “I also take seriously my obligation to let citizens know what’s going on.”

Since Polk’s trial, Joyce has made one change to how she approaches tweeting. She hasn’t tweeted during a trial for more than a year, she said. It’s not that she thinks it’s inappropriate, but she doesn’t want to create a “distracting issue,” she said.

‘Taint the jury’

Joyce’s tweets on David Polk’s June 2012 trial at first included only facts.

Joyce announced the upcoming trial with this post: “David Polk trial next week. DNA hit linked him to 1992 rape of 11 yr old girl. 20 yrs later, victim now same age as prosecutor.”

Joyce ratcheted up the opinion content when the jury went into deliberations, tweeting, “I hope the victim gets justice, even though 20 years late.”

Post-verdict, Joyce tweeted about the “brave victim” and the “man who terrorized her,” according to the opinion. Polk received a 15-year sentence.

“Broadcasting such statements immediately before and during trial greatly magnifies the risk that a jury will be tainted.”

The appeals court opinion acknowledged that the basic facts underlying Joyce’s comments were contained in the felony complaint and probable cause statement and were part of the public record.

“However, extraneous statements on Twitter or other forms of social media, particularly during the time frame of the trial, can taint the jury and result in reversal of the verdict,” Van Amburg wrote.

In the phone interview, Joyce said she tweeted that the trial was coming up, as is permissible under ethical rules, but she held off, as she always has, on saying anything about a case until a jury has been sworn in and instructed not to seek outside information.

“The reason I do that is because I didn’t want to do anything to interfere with Mr. Polk’s right to a fair trial,” Joyce said. “And I didn’t.”

The idea that statements can be made because a jury has been admonished not to look for outside information is an “arguable position,” said Sara Rittman, a Jefferson City attorney with a legal ethics practice.

“But not one that is necessarily a completely safe position,” said Rittman, who is the former Missouri legal ethics counsel.

In the Polk case, that position helped win the upholding of the verdict. None of the potential jurors said they followed Joyce’s social media postings, and the judge told them not to conduct any independent research and to refrain from using social media, the opinion said. Polk presented no evidence that the jury was aware of or influenced by Joyce’s tweets.

“Though we do foresee how comments like Joyce’s could taint a jury, we cannot conclude that the jury in this case was substantially swayed based on the mere potential for prejudice,” Van Amburg wrote.

A juror could be influenced by information that is “out there” before he knows that he’s going to serve on a case, defender Fox said. That juror might not remember the information during jury selection but recall it during deliberations, she said.

“The justice system is set up so jurors get the information the court thinks is relevant,” Fox said. “Not information Jennifer Joyce thinks is relevant.”

Same principles

Twitter has been around for nearly eight years but still is considered a fairly new medium in parts of the legal world (the appeals court helpfully provided an explanation of Twitter in a footnote).

Matt Selby, Stone County prosecutor and president of the Missouri Association of Prosecuting Attorneys, said he didn’t know how many prosecutors’ offices were using Facebook and Twitter. It would make sense to use them to keep constituents informed, Selby said.

Ethical rules restrict information to the nature of charges, court dates, and other information in the public record, and the same principles would apply regardless of the communication method, he said.

“I don’t know the difference between putting that out on a tweet and putting it out in a press release,” Selby said.

An American Bar Association Commission of Ethics group has examined social media issues in recent years, but Missouri’s Rules of Professional Conduct on publicity aren’t tailored specifically to social media, Rittman said.

“For the most part it does seem like there are ways to analogize social media and general online communication to older forms of communication,” Rittman said. “That’s been the basic approach so far is just to see how it applies.”

Tweeting is not a “real common thing,” Selby said.

“I would suspect after this case that would be something that will be discussed,” Selby said.

For her part, Joyce agreed with the appeals court upholding the trial result but disagreed with some of the language of the opinion, particularly a sentence saying that the judges “doubt that using social media to highlight the evidence against the accused and publicly dramatize the plight of the victim serves any legitimate law enforcement purpose.”

An engaged citizenry is helpful in fighting crime, and the public doesn’t often hear what happens after initial news reports on a crime, Joyce said.

“They never hear the rest of the story,” Joyce said. “They don’t hear that 20 years later we’re going to hang in there and we’re going to prosecute this guy.”