Commonwealth v. Werner, 81 Mass. App. Ct. 689, 967 N.E.2d 159 (2012):

After the defendant, Clare Werner, was convicted at a jury trial of twelve counts of larceny in excess of $250, in violation of G. L. c. 266, § 30(1), her defense counsel visited Facebook, a social networking Web site, and reviewed public postings by two jurors made during and after the trial concerning their jury service, as well as the responses to those postings. The primary argument in this consolidated appeal from the defendant's convictions and from the denial of her new trial motion is that the Facebook postings and responses raised the possibility that the jurors may have been exposed to extraneous influences. In particular, the defendant argues that the judge should have waited for Facebook to provide information pursuant to a subpoena before denying her motion for a new trial. We conclude that the judge did not abuse her discretion in denying the motion for a new trial after an evidentiary hearing. ***

The evening after the guilty verdicts were returned, defense counsel, having previously read general media reports about improper use of social media by jurors, attempted to look up the jurors on Facebook. Two of them, Juror A and Juror B, had open profiles, meaning that their profiles were accessible to any Facebook member. Defense counsel discovered that on March 30, 2009, while jury selection was ongoing, Juror A had posted: "[I] had jury duty today and was selected for the jury . . . . Bleh! Stupid jury duty!" Juror A had received three responses, one of which stated: "Throw the book at 'em." As the trial progressed, Juror A posted about sitting for long hours and her desire to complete the trial. At one point another juror in the trial, Juror C, who had been "friended" by Juror A during the trial, responded to her, saying, "[H]opefully it will end on [M]onday . . . ."

Also during jury empanelment on March 30, Juror B posted at 8:05 A.M.: "Waiting to be selected for jury duty. I don't feel impartial." A person responded, "Tell them 'BOY HOWDIE, I KNOW THEM GUILTY ONES!" Later that day at 4:54 P.M., Juror B posted again: "Superior Court in Brockton picks me . . . for the trail [sic]. The[y] tell us the case could go at least 1 week. OUCH OUCH OUCH." Juror B's wife replied to this at 9:37 P.M., "Nothing like sticking it to the jury confidentiality clause on Facebook. . . . Anyway, just send her to Framingham quickly so you can be home for dinner on time." Later that evening, another of his friends responded: "I'm with [Juror B's wife] . . . tell them that you asked all your F[ace] B[ook] friends and they think GUILTY."

Footnote 4. After the jury returned its verdicts, Juror B posted a lengthy note, similar to a Web log or "blog" entry, entitled "Life in the Jury Box." The posting described how he had previously been excused from jury duty when he "told the story of how [he] was held at gun point behind a TJ Maxx by some young robbers in Lawrence MA" and how this time he had "decided to not build any elaborate excuses or even try to get out of" jury service. The posting also said that he had been "a law breaker." Prospective jurors in the case at issue had completed a "Confidential Juror Questionnaire," which asked, inter alia, whether the juror or anyone in the juror's household or family had been "arrested, been sued . . . been charged with a crime . . . been a witness in a civil or criminal case . . . [or] been a crime victim . . . ." He had answered negatively. The blog note also stated that the evidence of guilt was overwhelming "[d]espite our efforts to try to find at least ONE charge we could say Not Guilty on." The defendant has not argued on appeal that Juror B's statements or omissions on the questionnaire, or his postings during or after the trial, demonstrated bias. This claim was raised and rejected below.

After finding these postings, defense counsel filed a motion for a new trial and sought to subpoena records from Facebook concerning postings and messages to and from these two jurors regarding their jury service. The trial judge, who also heard the motion for a new trial, decided to hold an evidentiary hearing at which Juror A and Juror B would testify. The judge also issued a subpoena to Facebook. Prior to the hearing, however, Facebook had not responded to the subpoena or telephone calls from the court. The evidentiary hearing was held on June 29, 2009.

Footnote 5. Defense counsel had discovered that Juror A had "friended" Jurors B, C, and D. His motion also requested that the Facebook records of Jurors C and D be provided, and that they be questioned at the evidentiary hearing. The defendant does not appeal from the judge's denial of the motion as to the records of Jurors C and D, and her decision not to call them for questioning.

At that hearing, Juror A was asked whether "during the very beginning of the case, that is impanelment, through the receiving of the jury verdict, you may have gone online and posted some information regarding this case." She responded, "I don't believe I did." She was then shown the posting that described her feelings about being selected and she recalled the posting and the responses. She explained that the postings were from people "sympathizing with . . . having to spend time sitting on a jury." She acknowledged "friending" Juror C and another juror but said she had not sent any electronic mail messages (e-mails) or instant messages to them during the trial.

Juror B testified that he was the author of the postings. He also testified that he did not recall seeing the "BOY HOWDIE" response to his 8:05 A.M. posting or any other responses to that posting. When asked about his wife's response to the 4:54 P.M. post, he denied that he had told his wife "the details of the case, the name of the defendant, anything that was presented as evidence." He suggested that she may have learned about the case through "public records." He also testified that he did not reply to any of the responses to his 4:54 P.M. posting, although he did see the first three responses. Nor could he specifically recollect going back to Facebook between the 4:54 P.M. posting and the end of the trial. He testified that "after the trial when I became aware of the controversy, I deleted my wall."

Footnote 6. His Facebook "wall" contained his public postings.

The trial judge found that none of the responses to any of the postings contained extraneous matters. She further found that "no evidence adduced at the hearing supports the defendant's claim that either Juror A or Juror B was exposed via the Internet to any extraneous matter." In denying the motion for a new trial, the judge rejected the request by the defendant to leave the hearing open until Facebook responded to the subpoena. The judge found: "The credible testimony given at the evidentiary hearing leads the Court to conclude that the records subpoenaed are unnecessary in these circumstances. Put differently, were the Court to have had the benefit of that testimony ex ante, the Court would not have . . . exercised its discretion under Mass.R.Crim.P. 30(c)(4) to grant postconviction discovery."

*** A trial judge "may grant a new trial at any time if it appears that justice may not have been done." *** A judge may also order appropriate discovery after the verdict if the defendant makes "a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial." ***

More specifically, when a defendant claims she was prejudiced by a juror's communications with outside parties during trial, she "bears the burden of demonstrating that the jury were in fact exposed to . . . extraneous matter." ***

In the instant matter, the defendant does not contend that, on the record before the judge when she decided the new trial motion, there was sufficient evidence to establish that the jury learned of relevant "information not part of the evidence at trial." Commonwealth v. Guisti, 434 Mass. 245, 251, 747 N.E.2d 673 (2001) (Guisti I). See Commonwealth v. Guisti, 449 Mass. 1018, 867 N.E.2d 740 (2007) (Guisti II). The defendant acknowledges that the postings, responses, and testimony of the jurors reveal no extraneous information. The defendant instead argues that she was deprived of the opportunity to develop evidence of an extraneous influence when the judge ruled on the new trial motion prior to receiving the materials subpoenaed from Facebook. The defendant suggests that the case law compels the judge to undertake further investigation because the jurors' Facebook postings cast doubt on the truthfulness of their testimony at the evidentiary hearing.***

Where there is a colorable showing of extraneous influence, the judge is neither compelled to go beyond juror questioning nor curtailed from doing so. *** The scope of the judge's postverdict inquiry is determined by the postings and responses themselves, the medium in which the postings appeared, the evidence of extraneous influence uncovered, if any, and the credibility of the testifying juror, as determined by the evaluating judge. The judge retains the discretion to determine what additional evidence "from sources other than her questioning of the juror" is "necessary and appropriate . . . to determine fully the facts" relevant to resolving the extraneous influence inquiry. ***

The judge did not err in concluding that the postings contained no evidence of extraneous influence. Instead, the postings involved the type of "attitudinal expositions" on jury service, protracted trials, and guilt or innocence that fall far short of the prohibition against extraneous influence. See Commonwealth v. Fidler, 377 Mass. at 199. See also Guisti I, supra at 252 ("'Just say he's guilty and lets [sic] get on with our lives' does not involve an extraneous matter"); Commonwealth v. Scanlan, 9 Mass. App. Ct. 173, 183, 400 N.E.2d 1265 (1980) (fellow juror's statement, "Why doesn't [the defendant] just get up and plead guilty and save us all the time and money?" did not warrant further inquiry). The postings do not in any way reveal "specific facts not mentioned at trial concerning one of the parties or the matter in litigation." Commonwealth v. Fidler, 377 Mass. at 200. Moreover, the postings made during the trial contained no case-specific information whatsoever. See United States v. Fumo, 655 F.3d 288, 306 (3d Cir. 2011) (postings were "so vague as to be virtually meaningless[; juror] raised no specific facts dealing with the trial"). Anyone viewing the jurors' postings on Facebook would have had no idea of the name of the defendant, what crime she was accused of committing, or what the trial was about. Thus, it is not surprising that the responses were equally nonspecific.***

In sum, (1) review of the Facebook postings and juror testimony revealed no evidence of extraneous influences on the jury; (2) there was overwhelming evidence of guilt; (3) the posts that were made during the trial were general complaints about jury service and silly nonspecific responses to those complaints; (4) although the posts examined by the judge appeared on open profiles on Facebook, and were thus accessible by any of the millions of Facebook members, there was no identifying information in any of the posts about the particular defendant or crime; and (5) the judge credited the jurors' testimony that they had not been exposed to any extraneous information in any other postings or responses. The defendant, therefore, could offer only unsupported speculation that the desired subpoenaed documents might include previously undisclosed communications of extraneous information to the jurors. It was therefore within the judge's broad discretion to deny the motion for new trial without awaiting Facebook's response to the subpoena. See Guisti II, supra at 1019-1020 ("[T]he trial judge's conclusion that the jury were not exposed to extraneous influences was amply supported by the evidence and her findings. Neither a new trial nor further proceedings are warranted").