Juror Secrets Are Few as Lawyers Mine Online Treasure TroveBy
Facebook, Instagram provide insight into jurors’ personalities
Some judges push back against internet background searches
As in any U.S. trial, jurors in the case of a Turkish banker accused of laundering money for Iran will be warned to stay off social media and not to do internet research on the case.
What they won’t be told is that lawyers might use those same tools to dig into their background.
The trial of Mehmet Atilla is being closely watched from Istanbul to Washington, with the mystery surrounding the case spurring conspiracy theories and political intrigue. It’s all on view on the internet. So, a Manhattan judge will ask jurors what they’ve heard, seen, read or what biases they might have formed.
But the answers the lawyers get may be just the tip of the iceberg. They could try to go deeper.
With people living more of their lives online, Facebook, LinkedIn, Instagram, Twitter, and just quick Google searches provide a wealth of information on individuals. Trial lawyers find that hard to resist. Though the practice has sparked controversy, and some judges have clamped down on what they see as an invasion of privacy, the wealth of tidbits of information is useful in picking jurors or even tailoring closing arguments.
"It’s just a treasure trove of information," said criminal defense lawyer Sally Butler, who is not involved in the Atilla case. In closings, "if you can even use some of their favorite terms, kind of gently, you can persuade jurors without them even realizing it."
Going far beyond the basic biographical notes yielded in jury-selection hearings, lawyers say they can find telling specifics, such as whether a juror is a homeowner or a renter, what their friends do for a living, religious or organizational affiliations, or even how they voted. (Pro-Trump or anti-Trump sentiments on Facebook and Twitter pages are especially useful, offering hints as to how jurors feel on a wide range of issues, lawyers say.)
Poking around the internet helped a lawyer in a Brooklyn trial who was worried an academic on a jury might have been leaning against his client, a man accused of armed robbery. James Kousouros said he turned up articles the professor had written that suggested he was pretty open minded.
"He was my guy," Kousouros said. "He hung them up," and the trial ended with jurors deadlocked.
Lawyers often prefer not to discuss their jury selection strategies for fear of tipping their hand or upsetting the judge. But Claire Luna, an Irvine, California-based jury consultant, says she always recommends internet searches.
Luna said when she was assisting in jury selection she once discovered a potential juror had a felony conviction that he didn’t disclose in court. He was removed from the pool.
Bar associations generally permit such practices, as long as lawyers don’t contact jurors, even indirectly, such as "friending" them on Facebook.
Atilla’s trial, which was scheduled to begin Monday with jury selection, was postponed a week for unspecified reasons. His lawyers declined to comment on their jury-selection tactics, but other attorneys say they’re probably interested in whether jurors show biases about Muslims, people from Iran or Turkey, or Trump’s administration, which has become entangled in intrigue surrounding the case. Atilla, a deputy chief executive officer at Turkiye Halk Bankasi AS, denies participating in a money-laundering scheme to avoid sanctions.
Having a client associated with a notorious character also raises concerns for lawyers. That’s the case of Evan Greebel, a former lawyer for Martin Shkreli’s companies. Shkreli was known as the most hated man on the internet for having raised the price of a life-saving drug by 5,000 percent. He was convicted of fraud and is awaiting sentencing. Greebel is accused of enabling the fraud.
Greebel’s lawyers told a judge they would conduct internet searches on jurors both during selection and throughout the trial, which is now entering its sixth week in Brooklyn federal court.
While popular, scrubbing the internet for juror information does face push-back. Last March, U.S. District Judge William Alsup in San Francisco restricted lawyers in a copyright case, ironically involving Google, from unfettered searches.
"They are not celebrities or public figures," Alsup said in a written opinion Mar. 25, 2016. "The jury is not a fantasy team composed by consultants, but good citizens commuting from all over our district, willing to serve our country, and willing to bear the burden of deciding a commercial dispute the parties themselves cannot resolve."