August 12, 2013
In the age of Facebook, Twitter, and round-the-clock news coverage, it's hard not to hear information about a highly publicized case.
The constant access to news and commentary might be useful for the general public, but it has caused enough concern among Connecticut judges to warrant immediate action.
In an effort to keep juries unbiased, the state Supreme Court has issued a ruling that will require all trial judges to instruct jurors — immediately upon their selection to serve on the jury – to avoid all media accounts of the particular case they will decide. This includes news media accounts as well as social media.
Jurors cannot discuss the case on Facebook, Twitter, or follow anyone else who is discussing the case through social media.
By doing so, "the trial court can assure itself that an order to avoid publicity and outside communications about the case has been given before any likely exposure to such publicity or communications has occurred," wrote Justice Dennis G. Eveleigh in a ruling to be officially released this week in the case of David Kervick v. Silver Hill Hospital et al.
Previously, there was less uniformity in how different court jurisdictions handled the instructions, according to trial lawyers. Sometimes a court clerk might warn the juror, rather than the judge. Once the trial begins, judges routinely tell jurors to avoid media accounts of the case.
"…We consider the issue of potential juror exposure to media coverage of a case extremely important, particularly in light of the twenty-four hour news cycle of today's world," wrote Eveleigh. "Accordingly, we conclude that the important issue presented in this case warrants the use of this court's supervisory authority in order to minimize the probability of juror exposure to media coverage of a case."
According to lawyers involved in the case, despite applying the ruling in a civil dispute, the state Supreme Court's ruling was broad enough to also apply to the criminal courts.
Specifically, the state Supreme Court justices ordered the state's trial judges to issue a written or verbal instruction to each selected juror. If in writing, the juror must read and sign the form before leaving the courthouse. A footnote at the bottom of the Kervick decision provides a sample written instruction to be given to jurors.
Douglas P. Mahoney, a trial lawyer from Tremont Sheldon Robinson Mahoney in Bridgeport who is the current president of the Connecticut Trial Lawyers Association, explained that at jury selection for a civil trial, the judge is typically not present in the courtroom, unlike in a criminal case.
Further, he said as recently as four or five years ago (when the Kervick case went to trial), temporary assistant court clerks would be present for jury selection and they would inform selected jurors to avoid media coverage of the case. However, he said budget cuts have eliminated the use of the per diem court clerks.
"Now most civil juries are picked without even a clerk being present," said Mahoney. "The lawyers sort of pick the juries on their own. The state doesn't have the resources to pay the clerks like they used to."
The justices further instructed that if a juror is exposed to media coverage despite their best efforts not to, they must inform the judge of this in writing without notifying the other jurors. That way, the judge can figure out the best course of action to protect the parties' rights to a fair trial.
All of this instruction by the justices stemmed from an appeal in a sordid case involving sexual abuse and suicide.
David Kervick, a New Jersey lawyer and former public defender, filed a malpractice lawsuit against Silver Hill Hospital in New Canaan as executor of the estate of former Westport librarian Ruth Farrell who committed suicide in 2002 at the well-known psychiatric and drug abuse facility.
Kervick met Farrell at the facility years earlier while treating for drug problems and bipolar disorder. Celebrities like Billy Joel, Catherine Zeta-Jones and Mariah Carey have received treatment there.
Farrell, who was repeatedly abused as a child and developed multiple personalities, was treated by a psychiatrist there named Ellyn Shander. Shander was also named in the lawsuit.
The lawsuit contended that the facility should have prevented Farrell from hanging herself while she was staying there.
A jury sided with the defendants but the state Appellate Court in 2011 ordered a new trial on grounds that the trial judge, David Tobin, had failed to find out if jurors had read a New York Times article about the case that came out after the jury was selected but before evidence in the case began.
The state Supreme Court, besides using its supervisory authority in its decision, also overturned the Appellate Court ruling and reinstated the jury's defense verdict. The state Supreme Court ruled that the court clerk's instruction to the jury to avoid media coverage of the case was suffice, especially since the plaintiffs did not object to it at the time.
Lawyers for Silver Hill Hospital and Dr. Shander were pleased with the ruling.
"Every single fact in that [New York Times] article came into evidence at trial," said Robert C.E. Laney, of Ryan Ryan Deluca in Stamford, who represented the hospital in the state Supreme Court appeal. "So even if someone had read it, it's hard for me to envision how it would've unfairly tainted [the jury.]"
"There was no evidence jurors even knew the article existed," continued Laney. "That was always something that bothered me about the Appellate Court decision."
Laney said jurors were warned during the trial 32 times by the judge to avoid media coverage of the case and only rely on evidence presented in the courtroom.
"In light of that background, the idea that a jury read this article seems a little far-fetched," said Laney. "The idea that the jury read the article and would not report it to the court is even more far-fetched to me."
Attorney Sandra Akoury represented Kervick, the New Jersey lawyer plaintiff. Akoury did not return repeated calls for comment last week.
David J. Robertson, of Heidell, Pittoni, Murphy & Bach's Bridgeport office, said his client, Dr. Shander, was pleased to have the case finally resolved.
Despite their pleasure with the ruling from their client's perspective, Laney and Robertson said the use of the state Supreme Court supervisory authority was the big issue going forward that impacts the Connecticut legal community.
"It's the new challenges we have with jury trials," said Robertson, regarding the new reality of 24-hour news channels and social media. "You didn't have to worry about that 20 years ago."
An example of such a challenge, according to Robertson: A juror hears a medical term during testimony that he or she does not understand. So the juror wants to "Google it" and find out what it means. That's a no-no, per the court's rules.
"The whole idea of instantly getting information, as a juror you're put in a different atmosphere," said Robertson. "You can't do that. You must wait for it to come at some point during the trial."
All-in-all, trial lawyers seemed to think the ruling was a good idea.
"I'm sure anytime you take steps to make sure jurors are deciding the case just on the evidence, it's always a good thing," said Mahoney.
Mahoney recalled reporters tweeting continuous updates from the courtroom during the St. Francis Hospital child sex abuse trial in 2011.
"It is a concern when you have that type of media coverage jurors are [potentially] being exposed to, so anytime you can mitigate that, it's a good thing," said Mahoney.
Article by Christian Nolan, Connecticut Law Tribune