A Prosecutor’s Right to Tweet?

On December 17, 2013, the Missouri Court of Appeals, Eastern District, held that a prosecutor’s public twitter comments—even where arguably inappropriate and improper pursuant to the Missouri Supreme Court Rules of Professional Conduct—do not justify reversal of a verdict when there is no evidence that the jury is aware of or influenced by those comments.

Defendant David L. Polk, convicted by a jury in the Circuit Court of the City of St. Louis of forcible rape and forcible sodomy, filed motions to dismiss and to strike the jury panel upon learning that Circuit Attorney Jennifer M. Joyce made seemingly inappropriate public comments about Polk’s case via Twitter. Specifically, during trial Joyce tweeted, “Watching closing arguments in David Polk ‘cold case’ trial. He’s charged with raping 11 yr old girl 20 years ago,” and “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.” Once the case was submitted to the jury, Joyce continued, “Jury now has David Polk case. I hope the victim gets justice, even though 20 years late.” Polk contended that these comments prejudiced the jury against him and violated Missouri Supreme Court Rule of Professional Conduct 4-3.8(f).

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The trial judge denied Polk’s motions and the appellate panel affirmed the trial court’s decision. While acknowledging the apparent impropriety of Joyce’s twitter comments, Judge Van Amburg concluded that “the test is the fairness of the trial, not the culpability of the prosecutor” and that the prosecutorial misconduct must rise to the level of “substantial prejudice” where the question becomes “whether the misconduct substantially swayed the judgment.” Here, the court held that Joyce’s prosecutorial misconduct did not substantially sway the judgment because the potential jurors stated during voir dire that they did not follow the prosecutor’s social media postings, and because the trial court instructed the jury not to conduct any independent research or use social media such as Twitter or Facebook. Click here to read the opinion.

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