Trials & Litigation

Divided federal appeals court affirms ruling against former state justice regarding juror's Twitter use

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An en banc federal appeals court split 6-6 Thursday in an appeal by a former West Virginia Supreme Court justice who was seeking a hearing on a juror’s Twitter use during his fraud trial.

The split had the effect of affirming a ruling against former Justice Allen H. Loughry II, report and the West Virginia MetroNews.

How Appealing linked to the May 20 order by the 4th U.S. Circuit Court of Appeals at Richmond, Virginia, that affirmed the prior judgment. Three appeals judges did not participate in the case.

Loughry was sentenced to two years in prison in February 2019. He was convicted for using state credit cards to buy gas for personal travel and for lying to the FBI. The FBI lies concerned Loughry’s use of state vehicles and about his knowledge of the origins of a desk that he took from the court to his home.

Loughry has already served his federal sentence, according to the West Virginia MetroNews.

Loughry’s appeal concerned Twitter use by “Juror A” before and during the trial, according to West Virginia MetroNews. The juror had liked some tweets about Loughry’s legal problems before the trial. During the trial, Juror A visited Twitter, raising the possibility that the juror had seen tweets about the trial by two reporters she followed.

The judge overseeing Loughry’s trial had warned jurors to stay off social media.

The appeal had contended that Loughry was entitled to an evidentiary hearing under the 1954 U.S. Supreme Court decision Remmer v. United States. That decision said a defendant is entitled to a hearing when they present a credible allegation about a juror’s contact with a third party about the pending criminal matter.

Loughry’s lawyer, Elbert Lin, told West Virginia MetroNews that the split appellate decision was disappointing.

“Social media poses a growing threat to a criminal defendant’s Sixth Amendment right to an impartial jury,” Lin said. “District courts cannot protect against that threat without first understanding how social media platforms work and then having clear guidance from appellate courts.”

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