Just Sit Right Back and You’ll Hear a Tale . . . of a Lawyer and His Facebook Page

An attorney friend of mine e-mailed me this story with the subject line, “What else could go wrong?”—and, boy, that pretty well sums it up. This story has all three of the hot points when it comes to troubling use of social media in the courtroom: (1) jurors’ use of mobile technology during deliberations; (2) legal counsel’s discussion of the case via a social-networking site (i.e., Facebook); and (3) inappropriate contact between a deputy and jurors during deliberations.  The only thing missing was a judge who crossed the line.

Although each of the three stories is fascinating, it’s the lawyer’s tale that is most shocking, so I’ll talk about that one and you can read the original story in the Sun Sentinel for the details on the other two.  And if you want to learn more about jury instructions that directly address juror’s use of social media and the Internet during a trial, be sure to see the Social Media Research Repository, which contains links to state and federal instructions from around the country.

Assistant State Attorney Brandon White was second chair for the prosecution in the trial of Antonio D. Hill.  After the trial had ended and just after the jury concluded its deliberations, White posted his “thoughts” about the case to his Facebook page. 

His “thoughts” took the form of a poem set to the theme song for the television show, “Gilligan’s Island.”

Just sit right back and you’ll hear a tale, a tale of a fateful trial that started from this court in St. Lucie County. The lead prosecutor was a good woman, the 2nd chair was totally awesome. . . . Six jurors were ready for trial that day for a four hour trial, a four hour trial.

The trial started easy enough by then became rough. The judge and jury confused, If not for the courage of the fearless prosecutors, the trial would be lost, the trial would be lost. The trial started Tuesday, continued til Wednesday and then Thursday With Robyn and Brandon too, the weasle face, the gang banger defendant, the Judge, clerk, and Ritzline here in St. Lucie.

White’s boss, Chief Assistant State Attorney Tom Bakkedahl, described White’s indiscretion as a "training moment.”  Not exactly the understatement of the year but not too far off.  According to the Sentinel, "Bakkedahl down played White’s remarks as harmless joking among family and friends who believed it would remain private, but stressed it’s not a behavior they’ll encourage.” 

“Harmless” may not be accurate, especially if the Florida State Bar Association has anything to say about it.  I’d guess that White’s posting triggers some concerns for the state agency with responsibilities for enforcing the state’s rules of professional conduct.  Specifically, I’d be willing to guess that there may be two concerns.

First, confidentiality.  An example of a similar situation occurred when a former pubic defender in Illinois with 19 years in the position, was removed when it was discovered that she had posted information about cases and clients on her blog. 

Second, professional courtesy.  These standards vary but, by way of example, Broward County, Florida, maintains rules of professional conduct, including the following:

3.1 Attorneys should refrain from criticizing or denigrating the court, opposing counsel, parties or witnesses, before their clients, the public or the media, as it brings dishonor to our profession.

One could argue that White’s “weasel face” comment, which, presumably meant to describe his opposing counsel, may not comply with Rule 3.1.

Despite Bakkedahl’s relaxed approach to White’s poem, the posting is yet another example of the type of poor judgment that attorneys can exercise in the social-media context.