Rock County case highlights question: Fair trial in the age of the Internet?

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Frank Schultz
September 18, 2015

JANESVILLE—Does the power of electronic communications make it more difficult for people to get a fair trial?

The question was raised in a Rock County prostitution case Friday, and it's likely to be a mandatory consideration for lawyers and judges as they consider justice in the age of the Internet.

The case was that of Katrell T. Smith, 34, of 5½ N. Henry St., Edgerton, who was charged in May with keeping a place of prostitution and maintaining a drug trafficking place in Edgerton.

Smith has pleaded not guilty.

Smith's attorney, Robert Howard, cited what he called “negative press,” including coverage by three TV stations, The Gazette and WCLO Radio.

Howard also cited a “rather disturbing” mention of Smith's case on an Internet discussion forum that carries racist content.

The name of the forum's discussion thread refers to black people with a highly offensive term.

The forum post itself was simply a copying of mugshots and an article by Channel 3000, which is a part of Channel 3 TV of Madison. The thread contains numerous Wisconsin cases in which black people—and one Jew—are the suspects. Some of the postings include derogatory comments, but the Smith posting does not.

Whether Smith could get a set of 12 jurors who would not prejudge his case is unknown, but social media did figure in jury selection in another recent Wisconsin case.

A St. Croix County judge in July granted a motion for a jury to be brought in from another county because of pretrial publicity in a reckless homicide case.

St. Croix County Judge Molly GaleWyrick ruled news coverage of the fatal stabbing of a fisherman had been neutral, but comments posted on social media had been “inflammatory and could impact jurors,” according to news reports.

Cecelia Klingele, a professor at the UW Law School, said the solution to the proliferation of negative information about a defendant is the traditional “voir dire” process, in which attorneys and judges choose the jury.

The process should weed out jurors who come into the case with opinions that could interfere with their ability to return a fair verdict, Klingele said in an email response to Gazette questions.

Klingele noted that a separate problem occurs when jurors who are already selected read about the case on social media. She noted that judges warn jurors not to do so.

So should lawyers be searching the Internet to check what's being said about their clients? In old days, a change of venue might have helped find jurors who had not read about a case, but the Internet is everywhere.

“The reality is that the Internet is big, and it's impossible for prosecutors and defense lawyers to search every profile, chat room, blog comment, or other virtual location where improper discussions might be had,” Klingele said. “In the end, we usually instruct jurors about what is expected of them, and trust them to take their duty seriously.”

Smith's attorney had asked for a jury to be brought in from another county, but he suggested another possibility Friday.

Howard said that in a highly publicized case he handled in Green County, a questionnaire was sent to about 100 potential jurors weeks before the trial in an effort to weed out those unfairly influenced.

Assistant District Attorney Mary Bricco said state statutes allow outside juries only when pretrial publicity is prejudicial, and she said the news reports she had read have been nothing but objective.

“It's clearly not enough,” Bricco said.

Howard said he wasn't accusing news media of going too far, but he said news coverage should be judged in context.

“You need to take it in context to the size of the community and the reaction of the community,” Howard said.

Judge Michael Haakenson said he would wait to see how the case progresses before making a ruling on Howard's motion.

A Gazette search on Friday did not turn up any other mentions of Smith's case on any other nontraditional media, except for one: He was listed on the Rock County Sheriff's Office's “most wanted” web page.

Smith, who had been wanted on a felony bail-jumping charge, was later arrested. He was still being held at the Rock County Jail on Friday.

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