By Andy Furillo
afurillo@sacbee.com
A Sacramento judge held off today in taking action against Facebook over the postings of a juror during a trial last year in which several reputed street gang members were convicted.
Superior Court Judge Michael P. Kenny, however, directed some pointed questions at the attorney who represented the social networking company in a hearing that covered several issues, including whether Facebook should be held in contempt for not responding to two court orders to turn over the postings.
McGregor Scott, the lawyer who represented Facebook, said the Palo Alto firm receives "thousands" of subpoenas and that it was an "oversight" that it did not respond to the court orders.
Kenny said he could understand Facebook failing to respond to one court order. But the judge suggested that the "double oversight" in the Sacramento case reflects a problem in Facebook's internal process on how it handles subpoenas.
Scott said he was at a loss to explain why it happened twice.
The company was subpoenaed by defense lawyers for the accused members of the Killa Mobb gang in Sacramento, who were convicted in the beating of a man at a gas station near the Arden Fair Mall on Halloween Night 2008.
After the convictions, the defense attorneys learned that one of the jurors had been posting some of his thoughts about case during the trial on his Facebook page.
The lawyers then subpoenaed Facebook to retrieve the juror's postings as well as correspondence he received from his friends that may have involved the trial.
Scott said the company is precluded by 1986 Stored Communications Act from supplying the postings but that Facebook can turn them over with the consent of the juror. The law was designed to protect the privacy of internet users.
Mike Wise, the defense lawyer who has taken lead on the subpoenas, said the law is unconstitutional if it blocks criminal defendants from obtaining information that might be relevant to their cases.
In today's hearing, Kenny put over any ruling on the juror's postings, his order to show cause on why Facebook should not be held in contempt and the defendants' motion for a new trial. The next hearing in the case is scheduled for Feb. 4.
Kenny, however, did order that a lawyer be appointed for the juror whose postings have become an issue.
Call The Bee's Andy Furillo, (916) 321-1141.
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