State v. Madden: The Effect of Judges on Social Media and the Constitutionality of Jury Questions
On appeal, Joe is asking the court to grant Ms. Madden a new trial primarily based on two contentions: (1) that the trial judge should have recused himself (removed himself from the case) due to his connections to Middle Tennessee State University and the District Attorney's Office on social media; and (2) that juror questions, in their entirety and in their imposition at trial, denied Ms. Madden her constitutional right to a fair trial. Click Here to read the brief in its entirety.
Both of these issues, judges on social media and the effects of jury questions, may eventually draw national attention, as different courts in different jurisdictions have reached different conclusions on each. For the reader, here is a brief summary of why each issue is important and the position that Joe Brandon, Jr. maintains on appeal in State v. Madden.
Judges on Social Media
During the Madden trial, Joe Brandon, Jr. filed a motion for the trial judge to recuse himself (remove himself from the trial) in part based on the friends and activities on the trial judge's personal Facebook page. Joe and the trial judge exchanged words over the extent to which the trial judge was connected with Middle Tennessee State University and its women's basketball program, as well as the extent to which the trial judge was connected to various local attorneys and prosecutors. In the end, the trial judge denied the motion to recuse himself and presided over the trial.
The Madden trial took place in May 2012. In that case, there were several heated exchanges surrounding the trial judge's use of Facebook and his personal Facebook account. In October 2012, months after Ms. Madden was found guilty of second degree murder, the Tennessee Judicial Ethics Committee issued an Advisory Opinion, No. 12-01, which specifically addressed "whether judges may utilize social media such as Facebook…and, if so, the extent to which they may participate."
The laws, regulations, opinions, and comments on judges and social media vary wildly throughout the country, but most stop short of an outright prohibition on social media. Instead, most laws merely discourage judge's using social media or emphasize that judge's must balance the risks and rewards of using such platforms.
On appeal, Joe Brandon, Jr. is asking the Tennessee Court of Criminal Appeals to evaluate the Tennessee laws on judges and social media and come to a conclusion on its allowance in the state; thereby achieving uniformity in policies throughout the state.
One of the most recent pieces of scholarship on this issue comes from recent law graduate Daniel Smith in the Case Western Reserve Journal of Law, Technology, & the Internet. Mr. Smith eloquently describes the inherent conflict between judges using social media and the judges' purported appearance of impropriety.
Continuing to allow Facebook use places judicial ethics jurisprudence on a convoluted path that may last for decades. Even if the ABA refrained from discouraging Facebook use, several states have already voiced concerns about judges and social networking. History suggests it is only a matter of time before judges begin facing disciplinary action for their Facebook usage. Courts may need years to develop the appropriate appearance of impropriety standard in the social-networking context. Furthermore, without clarity and direction, the courts will continue to struggle to create a doctrine that is workable for the countless scenarios that may arise. The only reasons courts have suffered through such a process with real-world relationships is because, as a practical and constitutional matter, states cannot ban judges from socializing. We do not have to go down the same road with Facebook use. If the ABA makes it clear that being a member of social networking sites can create ethical problems under the appearance of impropriety standard, the vast majority of judges would close their Facebook accounts upon taking judicial office. As a result, we would have a judiciary that is both actually and apparently less biased. We do not need another century of uncertainty surrounding the appearance of impropriety. The ABA should take this opportunity to resolve this issue immediately.see Daniel Smith, "When Everyone is the Judge's Pal: Facebook Friendship and the Appearance of Impropriety Standard," 3 Case Western Reserve Journal of Law, Technology, & the Internet 66 (March 2012). Available at http://law.case.edu/journals/JOLTI/Documents/Smith%20-%20new.pdf.
During the Madden trial, Joe Brandon, Jr. filed a Motion to Object to Juror Questioning. On numerous occasions during the trial, the jury was allowed to ask questions of various witnesses. Joe renewed his objection so often that at one point the trial judge snapped "I got that the first twenty times.... I'll put it on the record that Mr. Brandon objects to every single question asked by every juror in every situation" (from the record of proceedings, XVI,230,8-231,14).
Tennessee Rule of Criminal Procedure 24.1(c) permits jurors to ask questions, in the trial court’s discretion. Questions must be in writing, anonymous, and submitted at the end of a witness’ testimony. The Advisory Comment to Rule 24.1(c) indicates that the purpose of the practice is to “assist jurors in their understanding of evidence and to make them feel more involved in the trial process. Most jurisdictions allow jurors to ask questions, but this is misleading because the practice is usually discouraged. The United States Court of Appeals for the Sixth Circuit has weighed in on the issue, opining that juror questions are within the trial judge's discretion, but should be discouraged.
Some states have outright banned juror questions. The Mississippi Supreme Court, for example, observed that the most obvious problem with juror questions is that the jurors are not familiar with rules of evidence. In Minnesota v. Costello, 646 N.W.2d 204, 213 (Minn. 2002), the Minnesota Supreme Court flatly stated:
In sum, our concern about allowing jurors to question witnesses is two-fold. First, the opportunity to pose questions may prevent jurors from keeping an open mind until all the evidence has been presented. Second, the opportunity to pose questions may upset the burden of production and persuasion in a criminal trial. We believe the passive-juror system minimizes these problems because jurors are (1) not enticed to form hypotheses or judgments about missing testimony; and are (2) prevented from affecting the production of evidence.On appeal, Joe Brandon, Jr. is asking the Tennessee Court of Criminal Appeals to recognize the constitutional implications of allowing jurors to question witnesses. Jurors are not lawyers. Jurors are not investigators. Jurors are supposed to be impartial fact finders. To encourage the jury to investigate and ask questions distracts them from their true purpose, which is to be the ultimate fact finder in the criminal justice system.