Internet Law

Ill-timed tweets by prosecutor don't merit reversal, appeals court says

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A prosecutor’s tweets during the trial of an accused child rapist may have been ill-timed, but there is no evidence jurors were aware of them and no need to overturn the conviction, a Missouri appeals court has ruled.

The court ruled in the case of David Polk, who was charged as a result of a DNA match nearly 20 years after the rape of the 11-year-old victim, report the St. Louis Post-Dispatch and Missouri Lawyers Weekly (sub. req.). Polk was convicted of rape and forcible sodomy in June 2012 and sentenced to 15 years in prison.

On appeal, Polk argued the trial court should have dismissed the case or replaced the jury panel because of tweets by Circuit Attorney Jennifer Joyce. According to the opinion, available here, Joyce tweeted:

• “David Polk trial next week. DNA hit linked him to 1992 rape of 11 yr old girl. 20 yrs later, victim now same age as prosecutor.” (Tweeted days before jury selection.)

• “Watching closing arguments in David Polk ‘cold case’ trial. He’s charged with raping 11 yr old girl 20 years ago.”

• “I have respect for attys who defend child rapists. Our system of justice demands it, but I couldn’t do it. No way, no how.” (Tweeted during trial.)

• “Jury now has David Polk case. I hope the victim gets justice, even though 20 years late.”

• “Finally, justice. David Polk guilty of the 1992 rape of 11 yr old girl. DNA cold case. Brave victim now the same age as prosecutor.” (Tweeted after the verdict.)

• “Aside from DNA, David Polk’s victim could identify him 20 years later. Couldn’t forget the face of the man who terrorized her.” (Tweeted after the verdict.)

Though the appeals court did not overturn the verdict, it did express some concerns. “We recognize that the basic facts underlying Joyce’s comments are contained in the felony complaint and probable cause statement and, as such, are part of the public record,” the court said. “However, extraneous statements on Twitter or other forms of social media, particularly during the time frame of the trial, can taint the jury and result in reversal of the verdict.

“We doubt that using social media to highlight the evidence against the accused and publicly dramatize the plight of the victim serves any legitimate law enforcement purpose or is necessary to inform the public of the nature and extent of the prosecutor’s actions. Likewise, we are concerned that broadcasting that the accused is a ‘child rapist’ is likely to arouse heightened public condemnation. We are especially troubled by the timing of Joyce’s Twitter posts, because broadcasting such statements immediately before and during trial greatly magnifies the risk that a jury will be tainted by undue extrajudicial influences.”

Joyce issued a statement saying she was entitled to inform the public of the upcoming trial via Twitter, and her additional tweets were posted after jurors had been warned they could not read external news sources, including social media. She said Twitter, Facebook and other social media are valuable ways for law enforcement officials to communicate with the public.

Joyce told Missouri Lawyers Weekly that she no longer tweets during trials because she wants to avoid the “distracting issue.” Her last trial tweet was more than a year ago, she said.

Updated at 11:09 a.m. to include coverage by Missouri Lawyers Weekly.

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