Allen H. Loughry, II v. United States

In Remmer v. United States, 347 U.S. 227, 229 (1954), the Court held that “any private communication, contact, or tampering directly or indirectly, with a juror during a trial about the matter pending before the jury is . . . deemed presumptively prejudicial” unless made through court-sanctioned channels. Ibid. In light of the proffered evidence of such a contact, the Court required a hearing to determine “what actually transpired, or whether the incidents that may have occurred were harmful or harmless.” Ibid. The issue in this case is whether Remmer will continue to serve as a bulwark for the Sixth Amendment rights of criminal defendants amidst today’s plethora of digital communications and devices. In this direct appeal of a federal criminal conviction, the lower courts refused a Remmer hearing because the defendant had no direct evidence of a juror’s extrajudicial social-media contacts with reporters writing about his high-profile trial. Instead, the defendant had offered substantial circumstantial evidence, including that the juror had shown intense pre-trial interest in Twitter activity that was highly critical of the defendant, had subscribed to the Twitter activity of two reporters who tweeted 73 times about the case during trial, and had accessed social media, including Twitter, multiple times during the six-day trial. This result was directly contrary to the Sixth Circuit’s holding in United States v. Harris, 881 F.3d 945, 954 (6th Cir. 2018). The question presented is: Whether circumstantial evidence of extrajudicial social-media contact with a juror about the case can be enough to entitle a criminal defendant to a Remmer hearing?