Sacto 9-1-1
February 4, 2011
Sacramento judge orders juror to OK release of Facebook records

By Andy Furillo
afurillo@sacbee.com

A judge ordered a juror today to allow Facebook to turn over his in-trial postings to the court to determine if the panelist was prejudiced in a recent Sacramento gang-beating trial.

Sacramento Superior Court Judge Michael P. Kenny said in his order that he "must investigate" the postings as a result of the juror's misconduct of discussing the case publicly in violation of a judicial admonition not to do so.

Kenny's order circumvents a constitutional issue that arose in his courtroom. Facebook had contended that it was precluded by the federal Stored Communications Act of releasing the postings without the juror's consent. Attorneys for the defendants in the Killa Mobb gang trial said the company's position ran up against their clients' right to a fair trial.

The judge's order told the juror to "execute a consent form" within 10 days "allowing Facebook to supply the postings" he put up during the trial.

"These postings should be supplied directly to the court, as would occur under a criminal subpoena," Kenny's order said, "and the court will redact, if necessary, to insure that no content except that related to the trial is enclosed."

Ken Rosenfeld, the court-appointed attorney for the juror, said he will appeal Kenny's ruling. Rosenfeld had filed a motion to quash the defense attorneys' subpoena of the juror's Facebook postings.

The juror's previously disclosed name has been withheld from court filings to ensure his safety. He had said in interviews with The Bee and other media outlets, including television, that the postings were for the most part innocuous. The transcript of one that was made public quoted the juror as saying that the court proceedings on particularly day were "boring."

Five reputed Killa Mobb members convicted in the 2008 gang beating case are awaiting sentencing. They are seeking a new trial based on the juror's misconduct.

Kenny continued until Feb. 25 a hearing on the new trial motion.

The judge also put over until then Facebook's motion to quash the subpoena served on it by the defense lawyers to get the records. That issue that now appears to be moot as a result of the judge's order that the juror give his consent to the company to produce the postings.

Even though the constitutional issue appears to have been put to the side, Kenny said he still has "some concerns" about Facebook's failure to respond to two court orders he signed earlier in the proceedings to turn over the juror's writings.

Facebook attorney McGregor Scott apologized at an earlier hearing for what he said was the company's "inadvertence." Scott said today that "this matter has clearly drawn the attention of my client and they have taken remedial measures and will continue to do so and take very seriously this oversight on their part."

Call The Bee's Andy Furillo, (916) 321-1141.

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