Forget judges, what if jurors had blogs?

Earlier this week, several bloggers discussed a recent column by Howard Bashman about the propriety of appellate judges reading blawgs which discuss a case pending before the judge. The general consensus seems to be that there's nothing wrong with it.

But now, courtesy of Fern at Legal Miscellania, we learn of a bigger problem: jurors with blogs. A convicted rapist, Stephen Goupil, has asked that his conviction be overturned after discovering blog postings made by the foreman of his jury, a local school board member named Scott Vachon, postings which suggest that Vachon may have had an improper understanding of the law.

According to the defendant, Vachon "posted a statement in which he said he was frustrated to have to serve on a jury that would require him to spend time listening to defendants trying to prove they were innocent." The defendant points out that this reflects an improper understanding of the law, leaving the distinct possibility that the jury voted to convict because it felt that defendant had failed to prove he was innocent, rather than because it felt that the prosecution had proved the case beyond a reasonable doubt. According to the state's attorney, these posts were made before the start of the trial, and that the juror in question properly applied the law as given by the judge. The trial court, after questioning each juror, agreed, and upheld the conviction. The case is now before the New Hampshire Supreme Court. If the state attorney is correct, and the postings were made before the trial, before the judge gave legal instructions to the jury, then the conviction will probably be upheld.

Prosecutors loathe having jurors who give interviews or otherwise discuss deliberations after the fact, for precisely this reason. Defense attorneys will (understandably) seize on any off-hand remark by a juror as evidence of improper activity in the jury room and use it to try to reverse the conviction. This very rarely happens, because the law imposes a very strong presumption that jurors do their job in the secrecy of the jury room. The new prevalence of blogs will simply add one more thing for prosecutors to worry about.

UPDATE: Eventually, the court of appeals [pdf] upheld the conviction, after carefully scrutinizing the jurors' blog postings. I would urge any blogger called for jury duty to disclose the existence of their blog during the voir dire process.