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Law students working with Emerson

10:53 AM  Apr 23rd, 2018
by Danielle Damon ’18

“Traditional classes in law school focus on applying a set of cases and determined outcomes,” said Christine Carney, associate general counsel for Emerson’s Commercial & Residential Solutions business. “Many of the questions we are asking are new legal questions without defined answers.”

Carney and UD School of Law professor Thaddeus Hoffmeister co-teach the course Law and Internet of Things (IoT) at Emerson’s Helix Innovation Center in Dayton.

Not only the name of an academic course, IoT is a universal term that describes the network of physical devices (ie: cellphones, cars, home appliances, etc) that are connected to the internet collecting and exchanging data with one another. Essentially, any device that can be connected to the internet becomes part of the IoT.

In an ever-growing digital society, countless legal issues can arise, such as consumer privacy. In April 2016, The Helix Innovation Center opened with a vision for UD students, faculty and researchers to collaborate with Emerson professionals to develop solutions to such industry challenges.

The course’s seminar approach deviates from the typical law school approach. Students are asked to apply information learned in previous courses to in-class discussions and simulations prepared by Emerson professionals like Carney and guest speakers from the Emerson law department.

“For today’s simulation, think of yourself as in-house counsel,” Carney said to her class on March 23. “You can’t Google it and find the answer; this is the real-life version. You have to think on your feet and be part of the solution.”

Instructors introduce real-time issues, such as the self-driving Uber accident in Arizona, and task students to work under strict deadlines. In this particular class, students had one hour to research and develop a statement to deliver to the “press” while representing their respective “client.” Students then had to defend their statement during a simulated press conference.

“In classes like IoT and Social Media Law, it’s mostly theoretical because it hasn’t been around long enough to really get ingrained in our legal system,” said UD law student Meghan Pratschler. “Partnering with Emerson gives us a practical perspective on the ramifications of both new laws and no laws, and their effect on the business sector.”

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What came first, the law or the right?

10:39 AM  Apr 6th, 2017
by Erin Frey ’18

Professor Camilo Pérez-Bustillo began class by asking his law students, “What does the world look like?” His students looked around blankly, so Pérez-Bustillo countered with another question, “Where do we (the United States) fit in terms of human rights?”

The answer he gave left a blanket of silence — possibly awe — over the room.

“The U.S. has been leading the global retreat of human rights since 9/11.”

The International Human Rights Law class is new this year and is co-taught by Pérez-Bustillo, executive director of the Human Rights Center and research professor of human rights and law, and Adam Todd, associate professor in the UD School of Law. The course challenges law students to analyze current laws to determine if they are in violation of human rights.

“The students studying human rights in this class will be the next generation of lawyers doing similar actions on behalf of peoples’ rights on the front lines of preserving liberty in this and other countries across the globe,” Todd said.

Pérez-Bustillo refers to the current immigration situation in Europe as, “the second biggest humanitarian crisis in terms of displaced migrants since the second World War.”

“Thousands of people have died in the desert or Mediterranean trying to get to Europe,” he continued. “One person has died every day on their way to the U.S. for the past 20 years.”

Recently, the class discussed these facts in light of the several executive orders put in place by Pres. Donald Trump since he took office.

Anita S. Teekah, a lawyer and human rights activist in New York City, started a discussion around analyzing the executive orders regarding security at our Mexican borders and the ban of entry into the country for immigrants from seven predominantly Muslim countries.

Teekah asked, “Is immigration control within the executive branch or under presidential control?”

Her question led to an engaging discussion between students who are writing semester-long papers on immigration law and the travel ban executive order as they relate to human rights.

A student in the class, Emily Feliz, expressed her opinion while questioning the timing of the orders.

“Yes, immigration control is within the president’s jurisdiction, but there are discrepancies in how the orders were handled, errors in reporting and there was no consultation with the department of state which led to confusion on the ground,” she said.

The class will be offered again next fall to allow law students the opportunity to analyze the laws they will one day be upholding.


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Alumni meet with Supreme Court justice

10:52 AM  Mar 21st, 2017
by Mary McCarty

Supreme Court Justice Elena Kagan met with 26 Dayton Law alumni and family members March 6, before they were sworn in to the Bar of the United States Supreme Court.

University law school Dean Andrew Strauss introduced Justice Kagan — his friend and classmate since their undergraduate years at Princeton University — at a breakfast in the Chief Justices Room before the swearing-in. “This is a very meaningful day for our alumni who are being sworn into the Supreme Court Bar and it is truly an honor to have Justice Kagan here to share it with us,” he said.

During her informal conversation with alumni, Justice Kagan described her love for the job. “I try to remember that every day in this job is a privilege,” she said. “I never want to forget the privilege and the responsibility that comes with the job.”

Dianne Weiskittle ’13 called it a “pinch myself” moment: “I feel so fortunate that Dean Strauss had that connection, so we could have this experience.”

Kagan praised the lawyers who argue cases before the Supreme Court. “They are not the kind of lawyers you suffer through,” she said.

She is most impressed with the lawyers who don’t make grand speeches and who aren’t intimidated by the justices: “The thing that makes the great ones is the ability to engage in a conversation with the justices.”

Sutton Smith ’13, staff attorney for the Sixth Circuit Court of Appeals in Cincinnati, said he couldn’t pass up the opportunity to meet Kagan, even though he has a 2-year-old and a newborn. He and his wife Emi traveled to Washington D.C. for the ceremony.

“It was my first visit to the Supreme Court and a cool introduction,” he said. “I thought, ‘I may never get another shot at this. Why not jump in when I can?’”

The next UDSL Supreme Court swearing-in is scheduled for 2019.


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Challenging the citizen

9:47 AM  Oct 5th, 2016
by Madalyn Beban'18

“Ten years ago I was confronted with a question that changed my life.”

Harvard Professor Lawrence Lessig began his remarks to the members of the School of Law Leadership Honors Program on Sept. 21 without understatement.

Discussion at the first event in this year’s Honors Roundtable Series flowed forward from this fundamental question: how are you able to make change in the face of a corrupt system–not as an academic in an isolated field, but as a citizen?

It was a question that spurred an investigation that Lessig brands “a ten year project to understand our system, and ultimately to try to wrestle back our representative democracy.”

In its first year at the University of Dayton, the Leadership Honors Program is intended to provide resources and further leadership training for its students in order to embolden the next generation of successful, civic-minded law professionals.

Its first speaker, Professor Lessig grappled with the need for reform of money’s role in politics; he posited that “competition, usually good, can produce a bad outcome” when Congressional representatives are trapped “on the treadmill”–fixated on funding the next campaign in order to keep the job, rather than performing the job itself.

Attendee and LHP cohort member Brooke Poling, one of a number of students to contribute during the discussion, reflected on Lessig’s evidence, anecdotes, and musings.

“This has given me so much to think about. I feel challenged about what I thought and what I should do in our political system; the discussion was very beneficial.”

With the Leadership Honors Program’s goals in mind, “challenged” may be the perfect word:

Lessig’s work invokes larger inquiries in line with the School’s emphasis on cultivating civically responsible lawyers–as well as citizen leaders.

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Walk a mile in her shoes

9:08 AM  Sep 22nd, 2016
by Courtney Mocklow '17

Despite the looming forecast of heavy rain showers on Sept. 17, the spirit of  Walk a Mile in Her Shoes was not dampened. Hosted collaboratively at the University’s River Campus by the Artemis Domestic Violence Center and YWCA Dayton, the event was dedicated to raising awareness on the issue of domestic abuse.

“Domestic violence is a key issue that both YWCA and Artemis Center are trying to make an impact on,” said Audrey Starr, special events and communications manager at YWCA Dayton. One way that Artemis and YWCA offer support for domestic violence victims is through their shared 24/7 crisis hotline, designed to provide continual help for those suffering.

“Artemis suggested to raise funds for the hotline,” Starr said. “We really wanted to work with students, so we teamed up with the UD School of Law Human Rights Awareness and Advocacy Group, which had hosted the same event the year before, and the UD Women’s Center.”

Walk a Mile in Her Shoes included a 5k run and walk, and red high heels lined the course to symbolize the female victims of domestic abuse. Several UD students were also on hand to participate in the race.

Beth Herdmann, a member of the UD School of Law’s Human Rights Awareness and Advocacy Group, has big expectations for the fundraiser, saying, “We hope this event will continue to grow both in the UD community and in the city of Dayton, occurring annually and continuing to raise awareness.”

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A future lawyer

1:20 PM  Aug 30th, 2016
by Madalyn Beban

“I am welcoming you today to the legal profession.”

This greeting provided Friday, Aug. 26 by Associate Dean Lori Shaw marked the commencement of the School of Law’s annual Oath of Professionalism Ceremony.

The oath itself is a tradition practiced by all incoming University of Dayton law students, with similar ceremonies occurring at law schools across the nation. Uniquely, this year’s oath was written by UD law students themselves; designated Learning Communities within the school submitted drafts and faculty and staff selected the winning version.

Addressed to a gathering of incoming first-year students, relatives, and friends in Keller Hall’s Mathias H. Heck Courtroom, the remarks of Dean Shaw and other esteemed speakers offered a glimpse into the students’ upcoming journeys as they enter the legal field.

Keynote speaker and law school graduate Patrick J. Piccininni spoke passionately to attendees regarding the nature of professionalism: “How you leave your profession and your community at the end of your career must be better than you found it.”

He championed two key virtues, participation and responsibility, through which both legal integrity and true citizenship are realized.

“Law is not practiced in a vacuum,” he warned.

“When you finish your studies and become an attorney you will be entrusted with… a mighty sword and shield. Wield it as King Arthur wielded Excalibur; for truth, justice, and to help your fellow man.”

At the culmination of the ceremony, incoming students were asked to stand and recite the oath, right hands raised. It began with an affirmation that echoed those virtues of commitment and responsibility:

“I am a future lawyer.”

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Tears on My Pillow: The Loss of Dennis Greene

3:05 PM  Sep 10th, 2015
by Merle Wilberding

Who could forget the high school dance in the Grease?  John Travolta and Olivia Newton-John were in the dance competition as Edd Byrnes played a cheap imitation of Dick Clark in winnowing out the losers. Soon the spotlight focused on Johnny Casino & the Gamblers, played by Sha Na Na and the music of “Tears on my pillow, pain in my heart.”

That song has become a dirge for me, for it was Dennis Greene who sang that solo in the movie. Dennis died in early September at the age of 66 from cancer of the esophagus. His death was shockingly sudden. There were not enough pillows to absorb the tears. His death was a loss to his family, to the University of Dayton, and to the Dayton community where he had become a quiet and effective presence who was making a difference, especially in the African-American community.

I had the good fortune to share lots of good times with Dennis during the past 10 years, including having dinner with him a number of times. We also met once at the Harvard Club in New York City as well as seeing shows together at the Victoria (Oliver produced by The Muse Machine) and The Loft (His Eye is on the Sparrow directed by Schele Williams, daughter of Diamond Williams, leader of the Ohio Players). Those times gave me an appreciation for the quality of his life, the goodness in his heart, and the good that he was doing in the community. When “His Eye is on the Sparrow” was sung so beautifully during the Memorial Mass for Dennis, those times came rushing back and I felt like Dennis was watching over me, just like His Eye on the Sparrow.

He grew up in Harlem where his father worked for the post office and his mother was a teacher.  His success in school earned him a scholarship to Hotchkiss School in Connecticut. He then became famous as one of the founding members of Sha Na Na, a group of undergrads from Columbia University.

Early on, Sha Na Na played in lots of venues in New York City, often opening or playing with such legends as Jimi Hendrix or Janis Joplin. They invited Sha Na Na to play at Woodstock. I remember Dennis talking about the rain and the mud at Woodstock, but also talking about the aura of peace and love that permeated Woodstock, adding that not all of it was due to the wafting weed.

After more than fifteen years of success with Sha Na Na, Dennis went back to school and earned a Master of Arts from Harvard, and a juris doctorate from Yale to add to his bachelor’s from Columbia. After a stint as a vice-president for Columbia Pictures, Dennis began his teaching career. At Oregon, he was a colleague of Lisa Kloppenberg, and when Lisa became the Dean of the University of Dayton School of Law, she persuaded Dennis to come to Dayton.  Soon Dennis became an unassuming celebrity as You Tube brought his past back to the present, to the delight of students who howled at seeing their law professor dance and sing in gold lamé suits.

I always admired the quiet side of Dennis, as he sat among friends and shared his life and his views on life. It was no surprise that he loved to discuss movies, not just the stars and the story line, but the real message behind the movie and the real acting skills of its stars. I admired how well he was connected throughout the Dayton community and his ability to relate to everyone.

There were a couple of times when Susan Elliott and I had dinner with Dennis and his brother, Father Michael Greene, on Christmas Eve at C’est Tout. During dinner the two brothers shared their Christmas memories, both family and spiritual.  Susan and I felt blessed to share those magic moments with them.

Dennis Greene was quiet and unassuming to the end. When I heard that his fall law school classes were going to be reassigned so that he could take a medical leave of absence, I reached out to him, and he responded immediately, telling me that he was having a “medical tsunami” and was waiting for the doctors to explain the treatment plan, but that he looked “forward to getting together in the not-too-distant future.”  A week later, Dennis Greene passed away. Tears on my pillow.

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In Memoriam: Law Professor Dennis Greene

10:16 AM  Sep 9th, 2015
by Shelby Quinlivan '06

There was a packed courtroom in Keller Hall Tuesday – but instead of opening arguments, there was an opening prayer in remembrance of professor Dennis Greene.


A “renaissance man,” Greene passed away Saturday, Sept. 5 at the age of 66. He excelled in two very different worlds – one of entertainment as the co-founder of the rock group Sha Na Na and one of law as a graduate of Yale Law School and former vice president of production and features at Columbia Pictures. He began full time at University of Dayton School of Law in 2004, where he taught both law and communication classes.


The prayer service held in Greene’s honor erupted in conversation, with students, faculty and staff from across the campus sharing their memories of the beloved professor. A slideshow provided a glimpse of both gold jumpsuits and cardigans, displaying the contrast of Greene’s two worlds.


“I always ask myself, ‘How would Uncle Dennis deal with this situation?’” Greene’s nephew, Edward Robinson, told the attendees. “The common denominator throughout his life and career was giving back, the pursuit of helping others.”


Down under

12:10 PM  Feb 7th, 2014
by Megan Garrison '14
Before starting his legal studies at UDSL, third-year law student Brandon Stewart traveled the globe, with stops in Costa Rica, the Bahamas, Syria, Israel and Korea.

He continued his exploration by completing his legal externship last summer in Australia.

“I know that the world is bigger than the United States. We may consider ourselves to be the most powerful nation, but that does not mean we have the most effective answers,” Stewart said. “I believe that to have the best legal system you must understand how other countries’ legal systems are structured to see if there is a better way to structure our own to make it better.”

In Australia, Stewart worked for a firm that handled workers’ compensation and common tort law. Sometimes he had the opportunity to conduct research for a family or work on a criminal case. In his first week, he noticed a key difference from the American legal system.

“The Australian legal system uses solicitors and barristers while the American legal system only uses lawyers, which is essentially both a solicitor and barrister in Australia,” Stewart said. “Solicitors work directly with clients as they prepare contracts, wills, probate documents and attend to other paperwork as well as investigating the facts of the matter, writing letters to other parties and preparing paperwork for the courts if the client is involved in a dispute.”

“If a solicitor cannot handle the case, the solicitor will recommend a qualified and experienced barrister appropriate to the budget of the client and the nature of their case to be their advocate to help resolve the case.”

Although he’s studying law, the Jackson, Tenn., native doesn’t see himself becoming a lawyer. A devoted member of his church and member of the Air Force Reserves, he knew he wanted a career that kept him close to his faith and asked himself how he could affect change through his beliefs.

After getting a bachelor’s in English and communication and a master’s in theology, he decided law school was the next step.

“I wanted to be able to see the individuals who didn’t have a voice and be their voice,” said Stewart. “My dream job would be three-fold; I would love to be a mayor back home, work as an Air Force Reserve chaplain and work for a nonprofit organization.”

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Trial by Tweet

3:13 PM  Dec 9th, 2013
by Gene Williams

Pay attention. That’s what jurors promise to do. But what happens to justice when social media provides more compelling evidence?

@JurorNo1: Here we go again. #ihatejuryduty

@JurorNo2: He’s obviously guilty. Wish we could go home.

@JurorNo1: Guilty? With that @justinbieber hair? His barber even started a “Free Willy” Facebook page.

@JurorNo2: LOL #weallhatejuryduty

Imagine this Twitter exchange happening in the jury box during a trial.

Now imagine you’re the defendant and your future depends on the jurors paying attention to the evidence you believe will exonerate you.

But while you’re sitting at the defense table, palms slick with sweat, knees trembling, nervously tapping your foot like Ringo Starr on the drums because you know if you’re found guilty you’re going to prison, maybe for a very long time, the jurors are busy Tweeting and texting and updating their Facebook pages with details about you, your alleged crime, your bad haircut and the awful way your plaid pants clash with your striped shirt.

It could happen.

It has happened.

“Oh yes, it’s happened,” says University of Dayton law professor Thaddeus Hoffmeister. “It’s already been done in the box, in the jury box itself, unfortunately.”

The telltale sign?

“The juror’s head was down all the time,” Hoffmeister says.

If you’re surprised, you shouldn’t be.

Social media is as ubiquitous as naked photos of Anthony Weiner. No matter where you go or where you are — the movies, church, even the urinal — you can find someone texting, Tweeting, Instagraming, Tumblring, Digging, emailing, Facebooking, Amazoning, eBaying or just searching for information on Wikipedia about Miley Cyrus twerking. It has changed the way we work, the way we interact, the way we live.

The difference of course is that, mostly, someone’s life isn’t on the line.


When jurors are sworn in for duty they tacitly agree to listen to all the evidence presented to them when they swear to judge as fairly and impartially as possible. The concern is that all the distractions and, worse, the almost instantaneous ability to gather “facts” not in evidence, compromise a defendant’s ability to get a just and unbiased trial.

“I worry about that, yes definitely,” says Montgomery County [Ohio] Common Pleas Judge Timothy O’Connell ’77.

O’Connell, a 1980 graduate of the UD School of Law, leans back in a leather chair in his cluttered fourth-floor office in the Montgomery County Courthouse, his fingers tented as if in prayer, his brow furrowed as he contemplates the question of jurors going outside the boundaries of the courtroom to gather information they shouldn’t have.

“There have been cases reported where convictions have been reversed, new trials ordered and even dismissals of charges in some instances because of the use of information that wasn’t presented in the courtroom,” he says.

Attorney Jon Paul Rion ’96 remembers a civil case in Dayton that was settled in favor of his client just before closing arguments.

“We spoke to the jury afterwards, before they were discharged, and they’d read all about the case, knew what the judgments were, knew all the information,” Rion says. “It was unbelievable the amount of information they had that was not presented in the courtroom. And they openly admitted about getting the information about the case while the case was ongoing. We were shocked, one, not only by the openness but, two, the amount of information they felt they needed to do their job correctly.

“Clearly when you have information like that coming in through the back door, it’s of great concern. It’s impossible to monitor.”

Therein lies the rub. We live in an instantaneous world. We can connect to each other as well as to huge stores of information in the blink of an eye. Or more precisely, the flick of a finger. We now have the ability to check a defendant’s background, his or her prior record, and read personal comments about the person that may or may not be true. We can go to Google Earth to view crime scenes, check out lawyers, judges, witnesses and fellow jurors, “Friend” the victim, the defendant, their families and friends, and leak details to the public that are supposed to remain confidential.

“I particularly worry about jurors who can fairly easily go online … and go into the clerk’s records and find out about prior charges and prior convictions of the defendant,” O’Connell says.

Hoffmeister, who writes a blog about juries (juries.typepad.com), points to a sexual assault case in Louisville, Ky., where the victim, unhappy with the sentence of the two juveniles convicted of attacking her, went online and named them, even though the court kept their identities sealed.

“She said something to the extent of, if this is all that reporting a rape got me, then I’m mad I reported it,” Hoffmeister says of her reasoning. “There’s a lot of things going on with that particular case, such as can we keep legal proceedings quiet in the age of social media? It’s very hard. There are so many different ways you can get information out to people, courts are going to struggle with that.”


Twitter, Facebook and the like have turned ordinary citizens into what Hoffmeister calls “social media vigilantes.”

In 2009, for instance, an American couple visiting the Bahamas decided they wanted an exotic meal … of endangered iguanas. Like all good Facebookers, they felt the need to document their feast and posted pictures of themselves “cleaning the iguanas, and barbecuing the iguanas, and grilling the iguanas,” Hoffmeister says.

“Somebody saw the pictures on their Facebook page and called the authorities down in the Bahamas and these people were arrested. All because of people watching and seeing what was on somebody’s Facebook page. There’s so many different ways that social media is now impacting criminal law.”

Two years ago, Hoffmeister, who joined the UD law faculty in 2007, didn’t consider Twitter as something viable.

“I thought, 140 characters, how does this work?” he says.

Now he teaches a class on social media and the law and, in early 2014, will have a book, Social Media in the Courtroom: A New Era for Criminal Justice, published by Praeger.

Thaddeus Hoffmeister for UD Magazine.Sitting in his cramped office in the lowest level of Joseph E. Keller Hall, Hoffmeister, dressed in khaki pants, a blue checked shirt and sandals, is practically giddy while talking about the impact of social media on the judicial system. Words spew from his mouth faster than the Twitterverse reaction to Ben Affleck as the Batman.

After it occured to him that almost all his jury blog posts were about the effects of social media on jurors, Hoffmeister began to look at the entire judicial system.

“How are the criminals using (social media)?” he asks. “How are the attorneys using it? How is law enforcement using it? How do judges use it? How do we get it admitted into evidence? How do we get your Facebook page where you either contradicted the statement you made earlier or you foolishly posted a picture with you standing there with the stolen property admitted against you?”

And, as the man who consulted on the jury instructions for U.S. v. Barry Bonds, he understands the fears of a defendant about getting a fair trial.

“They have a valid argument,” Hoffmeister says.

Highly publicized cases such as that of Jodi Arias, who was convicted of brutally murdering her ex-boyfriend, make it virtually impossible to sit an unbiased jury, he says.

In a story about the penalty phase of Arias’ trial, CNN quoted jury consultant Richard Gabriel as saying, “(Social media is) incredibly powerful because it is a juror interacting in their natural environment. It’s them unedited, uncensored and not trying to couch things in way that’s politically correct. So you have a candid view of the juror, and it allows you to see how they view the world and how they express themselves.”

To his point, an alternate juror allegedly ignored instructions by the judge and posted on Facebook something about Arias’ temper.

“If (Arias) does have Latina blood, it may explain a temper lol,” the juror wrote.


Jurors aren’t the only ones with smartphones, of course. Judges and lawyers can also abuse technology — and get in trouble.

Says UD law professor Denise Platfoot Lacey, “Oftentimes it’s personal social media abuses that have gotten them disciplined. For instance, a lawyer asks for a continuance because he’s got too heavy a workload and then posts on social media that they’re really hungover because they were out too late the night before.”

Lacey served for two years as the secretary to the Supreme Court Commission on Professionalism for the Supreme Court of Ohio, investigating complaints against lawyers and judges. Social media now adds more challenges.

“Lawyers and judges have taken an oath to be a part of the system that will be fair and impartial, ” she says. “If there are abuses, people see this and they wonder about the officers of the court to whom we’ve entrusted the system.”

So what can be done about it? Can anything be done about it? As Hoffmeister says, the court system “changes at a glacial pace.”

One thing judges can do is change their instructions to juries — something O’Connell has done — cautioning them to not speak or use social media to communicate with anyone about the case. The Ohio State Bar Association amended its recommendations on jury instructions in 2010 to include just such a social media clause.

But, says Hoffmeister, expecting a juror to keep quiet about a case has never been practical — or realistic.

“I never believed that people went home after jury duty and didn’t talk to their wife or their husband about it,” he says. “You’re kidding yourself if you believe that. I think people always went home to their spouses, they talked about the case, and their spouses responded by saying, ‘Oh, I think he’s guilty’ or ‘not guilty.’ I just think it’s at a higher level now where you can reach out and talk to people outside your immediate vicinity.”

Judges could also confiscate any device — phone, tablet — that could connect a juror to the Internet, or consider something as drastic as sequestration.

Neither is entirely effective.

Sequestration, Hoffmeister and O’Connell agree, is expensive and an invitation for jurors to lie their way out of service.

“It turns people off,” Hoffmeister says.

Meanwhile, seizing phones and tablets could send some jurors into jittery fits.

“I’ve read some stories,” Hoffmeister says, “that say the Internet can be addictive. When you get an email it releases endorphins in your mind. It’s a pleasant sensation to you.”

For some, it’s a sensation they can’t live without. Last fall, the Behavioral Health Medical Center in Bradford, Pa., rolled out a 10-day inpatient program to help users kick their Internet habit. It may not be the same as asking a junkie to quit popping pills, but it’s an acknowledgement that some people just can’t give up their smartphones and tablets without help.

There are more extreme measures for judges, of course, such as sending jurors who violate the social media instructions to the slammer.

“That would be the last solution,” Hoffmeister says. “We in this country don’t punish like they do in England and other common law countries. In England, I’ve seen them give someone six months, which I thought was outrageous, for violating the rules. In England they hammer the jurors. In this country, we don’t hammer jurors.”

O’Connell agrees that sentencing jurors to jail time would be onerous.

“We always try to do the least invasive thing,” he says. “We’re always walking on eggshells now about making things convenient and easy and pleasant, if you will, for jurors.”

Pleasant for jurors, maybe, but not so much for defendants who must not only face the judgment of their peers but also hundreds, sometimes thousands, of anonymous “friends.”

“I know one case,” Hoffmeister says, “where a woman juror in a sexual assault trial took a Facebook poll and said, ‘OK, what do you Facebookers think I should do?’”

Scary, yes, but not the end of the world — or our justice system — says attorney Rion.

“For the most part, I believe jurors, citizens, try to be fair,” he says. “Examples to the contrary are always there, but I think you can rely on the jurors of this county, or any county, to at least try to be fair. Whether that translates into perfection, it never does, but it seems like people are well-intended in our judicial system and there is a great pride people have of it.

“Due to the extent that we have to be careful and watchful of (social media), I agree completely. But it’s not as if we’re in a situation where we need to scrap the jury system and start over. It’s still the best mechanism for justice that we could possibly have.”


Curbing the social media vigilantes

Can there ever be uniform instructions to juries about the dos and don’ts of social media? University of Dayton law professor Thaddeus Hoffmeister doesn’t think so.

“From state to state and county to county, things are different,” he says. “There are just so many jurisdictions, I don’t see how we could come up with a set of standards that everyone could use. There are some approaches you can use, but there is no surefire method.”

Among those approaches:
Better jury instructions. “Ask them if they can do without their phones for days or weeks. If they can’t, excuse them. And tell them why it’s important they don’t use social media. Juries need to know why they shouldn’t be using their phones.”

Attorneys and judges should set an example. “If the judge is using his phone and the attorneys are using their phones, jurors logically ask, ‘Why can’t I use my phone?’”

Use the juror oath to promise to hear the testimony fairly. “I do believe people take that seriously.”

Offer rewards for good behavior. “In one case, the judge promised to keep a journal for every juror with every story written about the case if they stayed off their phones.”

Allow the jurors to ask questions. “If there’s an accident scene and you’re not going to take us there, or you’re going to use legal terms I don’t understand, well, you could get away with that 20 years ago because I wasn’t going to go to the library and look up ‘reasonable doubt’ or ‘respondeat superior.’ Now, I can just ask Siri and she’ll tell me what that means. So let them ask their own questions.”

Even though the standards for social media in the judicial system can’t be consistent, he does say things need to change if courts want jurors to be fair and impartial.

“The law doesn’t want to change,” he says. “The law says we’re going to change at a glacial pace. We are in charge. The judge and the lawyers say, we’ll tell you what you need to know. No, technology is going to force you to change and, in my opinion, it’s empowering jurors.

“I think the rules of evidence, as they are, are too restrictive. I think juries should see more. I think they should see more evidence. I don’t know how much more or where to draw the line. But I think they should see more and I think they will see more because, if we don’t give it to them, they’ll find it themselves.”

Gene Williams is a freelance writer who misses the day when letters were written by hand, calls were made from phones attached to the wall and movies were never interrupted by smartphones too dumb to stay dim in a darkened theater.

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