The Legal Eagles Guide for Children's Advocacy Centers, Part II: Soaring Confidently in the Courtroom

Published in 2010

This second edition collection of Legal Letters written by Attorney Andrew Agatston to Children’s Advocacy Centers,  and those affiliated with CACs – the executive directors, the forensic interviewers, the forensic evaluators, the child and family advocates, the counselors, the medical professionals, and the detectives who investigate the alleged crimes, builds up on the 2009 book, The Legal Eagles of Children’s Advocacy Centers: A Lawyer’s Guide to Soaring in the Courtroom. It is critical for Children’s Advocacy Center professionals and others who work on behalf of children who have allegedly been sexually abused to have a thorough understanding of the legal system and the legal rules and requirements that directly affect their professional responsibilities as they are often called upon to testify in court in these critically important cases.

When Andrew was on the Children’s Advocacy Centers of Georgia Board of Directors, he noticed that many of the Children’s Advocacy Centers in Georgia did not have qualified legal counsel to assist them in their legal needs related to legal cases which involved them.  Upon further research, Andrew found that many Children’s Advocacy Centers across the United States were in the same situation.  So in 2008, he began researching legal cases that impacted CACs, and provided written summaries of those cases to CAC professionals in Georgia. Pretty soon, CAC professionals in other states found out about the free service, and requested to be added to the list.  Now, there are 900 professionals affiliated with Children’s Advocacy Centers who are on Andrew’s listserv across the country.

The articles written and sent to CAC professionals and those affiliated with CACs make up a collection of four books:

1. 2009 book, The Legal Eagles of Children’s Advocacy Centers: A Lawyer’s Guide to Soaring in the Courtroom;

2. 2010 book, The Legal Eagles Guide for Children’s Advocacy Centers, Part II: Soaring Confidently in the Courtroom;

3. 2012 book, The Legal Eagles Guide for Children’s Advocacy Centers, Part III: Soaring for Advocacy and Justice;

4. 2014 book, The Legal Eagles Guide for Children’s Advocacy Centers, Part IV: Soaring Higher for Children and Families;

Today, Andrew continues to send out Legal Letters to his "Legal Eagles."  He also is a frequent trainer at the state, regional and national levels.  CACs and their statewide organizations can contact Andrew at [email protected] to schedule trainings, or inquire about the "Legal List" listserv.

Below is an excerpt from a chapter of the 2010 book, "The Legal Eagles Guide to Children’s Advocacy Centers, Part II: Soaring Confidently in the Courtroom."

The Google Mistrial

Legal Eagles – Our goal is to keep up with the legal trends in the Court of Appeals and Supreme Court opinions regarding child molestation cases.  Case law trends tend to move slowly, very slowly.  The goal of those who lay down our legal rules is to ensure that there is consistency from year to year to year, so that society can understand and rely on settled “rules of the road” so to speak.

But in order to be effective witnesses at trial, it’s also important to stay up on societal trends that can impact the trial process.  After all, the decision-makers – the jurors – are involved in these changing societal trends.  Societal trends can change at the speed of light when compared to settled legal rules.  Societal trends push the envelope of the future; legal rules are designed to maintain the status quo.

We know that when the past and the future collide, it can get interesting in our world, and the courtroom is no exception.  There’s one societal trend that is scaring the heck out of lawyers, and making judges snorting mad.  You may have seen the story on a recent federal drug case that was in the news:  they’re calling it the “Google Mistrial.”

First, let me give you the status quo instructions that judges provide to jurors prior to the start of a trial.  It’s usually the last instruction that jurors hear from the judge before they go on their journey of hearing the evidence.

“I instruct you, ladies and gentlemen, that you must decide this case for yourself solely on the testimony you hear from the witness stand and the exhibits admitted into evidence.  You may not visit any scenes depicted by the evidence.  You may not utilize any books or documents not in evidence during your deliberations.  You may not read or listen to any accounts of the trial that might appear in the news media.  You may not discuss the case with anyone other than your fellow jurors during deliberations.”

Let’s fast forward to the Google Mistrial case, and I’ll take the primary thought from the above jury instruction to see whether it would have been followed in the Google Mistrial.

1) You must decide this case for yourself solely on the testimony you hear from the witness stand and the exhibits admitted into evidence.  Preliminarily, the Google Mistrial involved a federal drug trial in Florida that had gone on for EIGHT (8!) WEEKS.  Then, eight weeks into the case, one of the jurors admitted to the judge that he had been doing secret internet research on the case.

The legal rule that jurors only decide cases based upon the evidence produced in the courtroom dates back (at least in the U.S.) to the beginning of our country.  The theory goes that lawyers and the litigants need the certainty that these established legal rules will be followed in each case, which helps to ensure a fair trial for all.  Several of these established legal rules are set out in the judge’s instruction that is set forth above.  When the only evidence or information is presented in the courtroom, it allows both sides to either champion it or scrutinize it.  That’s the adversary system.  When jurors go outside the box and consider information not directly produced in the courtroom, the adversary system can crumble.  It sure did in this federal drug case.

In the Google Mistrial case, not one, but eight jurors had been researching the internet as part of the case.  They looked up news articles on the case; they checked definitions on Wikipedia; they searched for evidence that had been specifically excluded by the judge.  One juror told the judge that he researched on the internet because he was curious.

This is not limited to the Google Mistrial.  If you Google “Juror Misconduct” you can find links and articles to jurors who are Twittering during trial, posting Facebook comments between trial days, and posting on other social networking sites.

What about Georgia?

Case:  Brown v. State, Georgia Court of Appeals [official cite:  275 Ga. App. 281 (2005)].

Facts:  Defendant was convicted of 14 counts of child molestation and 11 counts of aggravated child molestation.  The Defendant appealed on multiple grounds, including allegations of juror misconduct during jury deliberations.

The alleged juror misconduct came up during a post-trial contempt hearing against the jury foreman, who, it was learned, had offered to sell the Defendant information that he said would be helpful in securing a new trial.  During the foreman’s contempt hearing, the trial court learned additional information that one of the other jurors in the same case used his cell phone to access MapQuest on the internet to calculate the distance between two points that was pertinent to the trial.

Armed with the additional MapQuest information, the trial court scheduled additional hearings, and ordered that the remaining jurors testify about it.  During these additional hearings, the juror who performed the MapQuest search said it was essentially the same as the distance testified to at trial.  All of the 11 jurors (not including the foreman who was already in hot water) testified that this information did not influence their decision.

The rule in Georgia related to juror misconduct is, “To upset a jury verdict, the misconduct must have been so prejudicial that the verdict is deemed inherently lacking in due process . . . There must be reasonable probability that the misconduct contributed to the conviction.” 

The Court of Appeals found in the Brown v. State case that the trial court painstakingly questioned every juror to see whether the MapQuest search influenced their decision, and also found that the MapQuest information was cumulative of evidence already introduced in trial .

. . .

End of Excerpt.

© Andrew H. Agatston, taken from "The Legal Eagles Guide to Children’s Advocacy Centers, Part II:  Soaring Confidently in the Courtroom"

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