Can Barry Bonds Get an “Impartial” Jury?

Right now, Judge Susan Illston, the well-respected judge presiding over Barry Bonds’ perjury case, is considering whether to have an anonymous jury.  This would be a drastic move in a society that values open court proceedings, but problems with the jury are not likely to end there.

According to an article last week on TechDirt.com, the attorneys for Barry Bonds are requesting a preliminary jury instructions that would specifically order jurors not to discuss the all-time home run record holder’s case on online social networking media.

The jury instructions that Bonds’ attorneys have proposed single out several services where abuse would be most likely to occur:

“[Y]ou must not communicate with anyone about the case by any other means, direct or indirect, such as: a writing, the telephone, e-mail, Facebook, MySpace, Twitter, instant messaging, Blackberry messaging, I-Phones, I-Touches, Google, Yahoo, any internet search engine or any other form of electronic communication for any purpose whatsoever.”

Of course, this type of explicit jury charge is not completely new.  There has been a consistent movement in many jurisdictions to adopt more specific language, naming sites such as Facebook, Twitter, and MySpace, sites where jurors are often tempted to discuss or post updates about their case.

However, while many courts use language in their pattern jury instructions similar to the language Bonds’ attorneys are requesting, the Northern District of California, where the case is being held, has not yet gone to a narrower instruction.  The California federal court follows the model jury instruction of the Ninth Circuit, which provides a general recitation of prohibited improper contact:

“Do not communicate with anyone in any way and do not let anyone else communicate with you in any way about the merits of the case or anything to do with it.  This includes discussing the case in person, in writing, by phone or electronic means, via email, text messaging, or any Internet chat room, blog, website or other feature.”

The baseball player’s widespread popularity has also raised concern about court management.  There is an official USA v. Bonds Guide for Journalists.  And to deal with the potential flood of media and fan inquires, the district court has set up a website where the public and media can access all court documents, including those dealing with evidentiary motions.

In the past several weeks, it has been widely reported that Bonds’ attorneys are attempting to exclude all sorts of evidence.  Last week, attorneys successfully barred 2007 Playboy photos of Bonds’ ex-mistress, although Bonds lost a motion to keep the article and the ex-mistress’s testimony out.

While the purpose of excluding evidence is to prevent the jury from hearing and considering it, all motions, responses and decisions are being made available on the court’s USA v. Bonds page.  Incidentally, the court’s Bonds page comes up first in a Google search for “USA v. Bonds.”

With a computer and an Internet connection, any overly curious juror can do his or her own research on the case, notwithstanding the evidence properly admitted or excluded from trial.  In light of such easy and swift digital access, it is easy to understand the greater specificity of Internet-related jury restrictions that Bonds’ attorneys are requesting.

High-profile cases such as USA v. Bonds highlight the impact that Internet and social media are having on the ability to get an impartial jury and a fair trial.  However, as Caren Myers Morrison has pointed out in her article, “Jury 2.0,” forthcoming in the Hastings Law Review, the idea of “impartiality” does not necessarily require an ignorant or passive jury.

Professor Morrison, who teaches law at Georgia State University, points out that in the Nineteenth Century, the meaning of an impartial jury was more open to debate.  To say a juror was “impartial” simply meant that he or she had no manifest conflicts of interest, i.e. the juror was not family, friend, or enemy of the parties.  And it was not uncommon for jurors to have personal knowledge of the events and people involved.

As this country moved into the Twentieth Century, the idea that jurors should be ignorant of the facts and parties became solidified.  As a result, today’s jurors are dismissed with regularity for simply having familiarity or acquaintance with a defendant.

With Bonds’ widespread popularity, the publicity of his case, and the swift ease of online research, all this begs the question:  Can Bonds get an “impartial” jury, especially in San Francisco where Bonds played for 14 years, breaking numerous records and garnering worldwide fame?  Or does the jury system need to bend back in time to give the home run hitter his day in court?

Voir dire in the Bonds case – the process by which the attorneys question potential jurors to select a jury – is set to begin on Monday, March 21, 2011.

Christopher Dize is a third year law student at Seton Hall Law. After graduation, he will clerk for a judge of the Superior Court of New Jersey, Appellate Division. He has interned in the United States District Court and works for a litigation firm in New Jersey.

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