State of Iowa v. Theodore Ray Gathercole II

IN THE SUPREME COURT OF IOWA
No. 14–0816
Filed March 25, 2016
STATE OF IOWA,
Appellee,
vs.
THEODORE RAY GATHERCOLE II,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Linn County, Stephen B.
Jackson Jr., Judge.
A defendant in a criminal case contends the district court should
have granted his request to poll the jury after a local newspaper
published a factually inaccurate online report about the case during
trial. COURT OF APPEALS DECISION AND DISTRICT COURT
JUDGMENT AFFIRMED.
Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, Kevin Cmelik and Mary A.
Triick, Assistant Attorneys General, Jerry Vander Sanden, County
Attorney, and Nicholas Maybanks, Assistant County Attorney, for
appellee.
2
HECHT, Justice.
Midtrial publicity is not a new phenomenon. See State v. Walton,
92 Iowa 455, 458–59, 61 N.W. 179, 180 (1894) (concluding when jurors
viewed newspaper editorials about a criminal trial during their
deliberations, “they meddled and interfered with the order of the court in
a very reprehensible and unseemly manner”). But “in this day and age,
our jurors are part of the new electronic world.” State v. Webster, 865
N.W.2d 223, 239 (Iowa 2015). In this case, we apply precedent governing
print materials to that electronic world and determine whether a
factually inaccurate news story published on a local paper’s website
during a trial raised “serious questions of possible prejudice” requiring
the district court judge to poll the jury about possible exposure to it.
State v. Bigley, 202 N.W.2d 56, 58 (Iowa 1972).
I. Background Facts and Proceedings.
On June 15, 2013, Frederick Rottmiller was a maintenance man at
a Cedar Rapids apartment building. Rottmiller, a septuagenarian, was
called to an apartment occupied by Theodore Gathercole and his ex-wife
to inspect a water leak. While there, Rottmiller loaned Gathercole twenty
dollars. Hours later, after midnight, Gathercole knocked on Rottmiller’s
apartment door and asked for more money, claiming he wished to visit
someone in the hospital and needed the funds for a taxi fare. Rottmiller
refused to give Gathercole more money but offered to drive him to the
hospital. Gathercole accepted the ride offer and walked away from
Rottmiller’s door while Rottmiller retrieved his shoes and car keys.
Rottmiller soon walked to the parking lot where his truck was
parked. As he approached the truck to unlock the door, Rottmiller
noticed someone standing near it. Suddenly, Rottmiller was stabbed
with a knife and he collapsed to the ground. Declaring repeatedly, “I’m
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going to prison for this,” the assailant continued the attack as Rottmiller
lay on his back. The assailant fled without taking Rottmiller’s wallet, cell
phone, or any other property.
Later, a passerby discovered Rottmiller on the ground. The
passerby summoned a taxi and prompted the driver to call 911. Police
and paramedics responded to the call, and remarkably, Rottmiller
survived the attack. Physicians surgically removed several inches of
Rottmiller’s intestine and treated other injuries including a chipped
vertebra and spinal cord damage. Although he survived the attack,
Rottmiller lost vision in one eye and was unable to walk for several
months after the incident.
Rottmiller told an officer responding to the 911 call that “a shorter
white male” had assaulted him, that he recognized the assailant, and
that the assailant “lives with a female named Lorrie.” Gathercole’s ex-
wife is named Lorrie, although Rottmiller did not expressly name
Gathercole as the assailant at the time. Rottmiller later selected
Gathercole from a photographic lineup of six possible suspects.
Police arrested Gathercole and charged him with attempted
murder, robbery, and willful injury. Trial began on February 3, 2014.
Jury selection consumed most of the first day. After empaneling the
jury, the court recessed for the day and recited a lengthy jury admonition
that stated, in pertinent part,
Prior to recessing, I’m required to admonish you. While I will
give this admonition to you at this time, I will not go through
the entire admonition each time we recess but will merely
state that you must remember this admonition which has
been previously given to you, therefore, please pay particular
attention to it at this time.
....
4
You must avoid reading . . . , listening to, or watching
news accounts of this trial for sometimes such accounts are
based on incomplete information or contain matters which
would not be admissible in court and could unduly influence
your ultimate decision.
....
As I said earlier, each time we recess I will not give this
admonition in detail, merely I will just state that you must
remember the admonition as it was given to you earlier.
The parties presented opening statements the next morning and began
calling witnesses.
The State’s principal witness, Rottmiller, testified unequivocally
that Gathercole was the assailant. Gathercole’s defense theory disputed
identity, challenged Rottmiller’s perception and memory, and emphasized
the State produced no physical evidence placing Gathercole at the scene
of the crime. The State acknowledged there was no physical evidence
placing Gathercole at the crime scene but contended Rottmiller’s
unequivocal identification of Gathercole supported a finding of
Gathercole’s guilt beyond a reasonable doubt.
After the first day of testimony (February 4), the court reminded
the jury to “stay away from any media accounts that there may be
regarding this case.” After the second day of testimony (February 5), the
court similarly reminded the jury to “stay away from any media accounts
of this case, and be mindful of all the rest of the admonition I gave to
you.”
On February 6, the parties presented closing statements. Again,
the State focused on Rottmiller’s testimony identifying Gathercole as the
perpetrator. Gathercole’s closing statement emphasized the lack of
physical evidence connecting him to the crime scene and the possibility
Rottmiller’s perception and memory were impaired by trauma. The
district court then instructed the jury and deliberations began.
5
As deliberations continued into the morning of February 7,
Gathercole moved for a mistrial or, alternatively, a poll of the jurors
about their possible exposure to a factually inaccurate media account of
the case. While browsing the website of the Cedar Rapids Gazette (the
Gazette) that morning, defense counsel had discovered an article about
this case published on or last modified in the afternoon of February 5.
The article’s headline was “Police try to explain lack of crime scene
evidence in a stabbing.” The second paragraph of the article stated crime
scene investigators had matched a palm print found on Rottmiller’s truck
to Gathercole. Additionally, a sentence near the end of the article stated
the palm print was “the only piece of physical evidence that ties
Gathercole to the scene.” Both sentences were factually incorrect. As
opening statements, trial testimony, and closing arguments established,
the palm print actually matched Rottmiller—which was unsurprising
because he owned the truck.
The record does not reveal how many page views the article had
accrued prior to Gathercole’s motion, how prominently the Gazette
website featured it, or whether an internet reader could access the entire
story without specifically clicking on the headline. The record also does
not disclose whether the article appeared in the print version of the
Gazette—and if it did, the specific section and page where the article
appeared. Furthermore, the record does not tell us whether the article or
its content was syndicated for distribution or actually distributed
through other media platforms or publications that might have wider
readership or exposure than the Gazette alone. However, the printed
copy of the web page version of the article introduced into evidence
shows some modest social media interaction had occurred. Three
unidentified website visitors had “liked” the article on Facebook, two had
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shared a link to the article on Twitter, and three had otherwise shared
the article via email or social media.
Gathercole asserted the Gazette article was prejudicial because it
misstated the evidence and struck at the heart of his defense: The State
presented no physical evidence connecting him to the crime scene.
Gathercole acknowledged the court had admonished the jury to avoid
media reports but expressed concern that any juror who read or heard
about the misinformation in the article might have become confused and
believed they either misheard or misunderstood the evidence presented
in court. He further asserted that if one or more jurors read the article,
believed it, and relied on it during deliberations, such conduct deprived
him of his right to a fair trial and required a mistrial. In the alternative,
Gathercole asserted the possible prejudice from the article at least
required a jury poll probing whether any jurors had seen the article or
read the factual misstatement.
The State resisted both motions, contending there was no reason
to suspect any juror had violated the court’s clear admonition to avoid
media reports. See Bigley, 202 N.W.2d at 57 (concluding the defendant
received a fair trial in part because “[t]here was no reason . . . to believe
jurors had violated [the] court’s admonition”). The State contended the
court should trust that jurors followed the court’s instructions and serial
admonitions. The State further cautioned that it believed the court
should be very reluctant to interrupt the jury’s ongoing deliberations.
The district court denied the motion for mistrial. The court agreed
the article was factually inaccurate but credited several circumstances
tending to prove the article had not prejudiced Gathercole. First, while
the article misstated the evidence, it did not contain facts that were
otherwise inadmissible—for example, evidence excluded under Iowa Rule
7
of Evidence 5.404(b). Second, the court noted, the factual misstatement
appeared in the article’s text, not as part of the headline. Third, no juror
had approached any court staff to reveal he or she had seen or read the
article. Fourth, the court had issued a stern admonition on the first day
of trial and repeatedly referred to it before each day’s recess—including
specific reminders to avoid media accounts of the trial. Finally, the
parties did not dispute that the palm print found on the truck matched
Rottmiller—not Gathercole; thus, the article’s misstatement did not
create a risk that the jury would use the information to resolve a factual
dispute in the State’s favor.
The court also denied the alternative motion to poll the jury. The
court expressed concern that polling the jury might perversely call
attention to the issue and stated it was loath to interrupt the jury’s
deliberations. The court expressed willingness to reconsider or enlarge
its ruling on the jury-polling question if either party filed an appropriate
motion with a supplemental brief containing supportive authority.
Neither party filed a supplemental motion or brief.
The jury ultimately convicted Gathercole on all three charged
counts. Gathercole did not renew his motion to poll the jury after the
verdict, nor did he file a motion asserting the court’s refusal to poll as a
ground for a new trial. At sentencing, the court merged the willful injury
conviction with the robbery conviction and sentenced Gathercole to
consecutive twenty-five-year terms for attempted murder and robbery.
See State v. Hickman, 623 N.W.2d 847, 852 (Iowa 2001) (concluding
willful injury and first-degree robbery must merge).
Gathercole appealed, contending the evidence was insufficient to
convict him and the court should have declared a mistrial or at least
polled the jury after counsel brought the factually inaccurate Gazette
8
article to the court’s attention. We transferred the case to the court of
appeals. The court of appeals affirmed Gathercole’s conviction, finding
the evidence sufficient and concluding the inaccurate Gazette article did
not raise serious questions of possible prejudice under Bigley. See
Bigley, 202 N.W.2d at 58 (adopting a standard that provides if “material
disseminated during the trial goes beyond the record” and “raises serious
questions of possible prejudice, the court . . . shall on motion of either
party question each juror, out of the presence of the others, about his [or
her] exposure to that material” (quoting ABA Standards Relating to Fair
Trial & Free Press 3.5(f) (Am. Bar Ass’n 1968))). Gathercole sought
further review, and we granted his application to explore in more detail
the circumstances when midtrial publicity raises serious questions of
possible prejudice. “Of necessity, this question is a complex one.”
United States v. Herring, 568 F.2d 1099, 1104 (5th Cir. 1978).
II. Scope of Review.
We review the district court’s refusal to grant a mistrial for an
abuse of discretion. State v. Marr, 316 N.W.2d 176, 181 (Iowa 1982).
The parties disagree, however, about the proper scope of review for the
jury-polling question. Gathercole urges de novo review, see State v.
Holly, 201 P.3d 844, 851 n.3 (N.M. 2009), while the State contends the
abuse-of-discretion standard applies.
We agree with the State. Although the Bigley standard creates a
mandatory duty to poll by using the word “shall,” see State v. Frank, 298
N.W.2d 324, 327 (Iowa 1980), the duty only arises if the publicity raises
serious questions of possible prejudice, see Bigley, 202 N.W.2d at 57–58.
“The determination whether the publicity is so prejudicial that further
inquiry is necessary is within the trial court’s discretion.” Brown v.
State, 601 P.2d 221, 232 n.28 (Alaska 1979); accord Marr, 316 N.W.2d at
9
181; Frank, 298 N.W.2d at 327; State v. Jones, 511 N.W.2d 400, 408
(Iowa Ct. App. 1993). Accordingly, we review the district court’s refusal
to poll for an abuse of discretion.
III. Analysis.
Exercising our discretion to select the issues addressed on further
review, we let the court of appeals decision stand as to Gathercole’s
sufficiency-of-the-evidence challenge and proceed directly to the midtrial
publicity question. See Iowa R. App. P. 6.1103(1)(d); State v. Rooney, 862
N.W.2d 367, 370–71 (Iowa 2015).
The court of appeals concluded the Bigley standard contains both
a qualitative component and a quantitative component. In other words,
midtrial publicity only raises serious questions of possible prejudice if
the information is outside the record, might invite the jury to decide the
case on an improper basis, and likely reached one or more jurors. On
further review, Gathercole contests that formulation. He asserts the
Bigley standard contains no quantitative component, or if it does, it
merely requires a showing that the risk of juror exposure is more than
de minimis.
A. Iowa Precedents. In Bigley, “a newspaper article about the
case . . . appeared on the third day of trial” on the sixth page of the local
newspaper. Bigley, 202 N.W.2d at 56. The article
was quite detailed and substantially factual. However, it
noted defendant had previously pleaded guilty to the charge,
was given probation, breached probation, was incarcerated,
and then won his right to trial because of irregularities in
connection with his guilty plea.
Id. The trial court denied Bigley’s motion for mistrial or jury polling
because it had admonished the jury to avoid news accounts of the trial
and found no evidence any juror had violated the admonition. Id. We
10
affirmed on the same basis, but we adopted prospectively “workable
guidelines” recommended by the American Bar Association (ABA) for
resolving claims of prejudice arising from extra-record publicity occurring
during trial. Id. at 58. The relevant ABA guideline extant at the time of
the Bigley trial provided that if
material disseminated during the trial goes beyond the
record on which the case is to be submitted to the jury and
raises serious questions of possible prejudice, the court may
on its own motion or shall on motion of either party question
each juror, out of the presence of the others, about his
exposure to that material.
Id. (quoting ABA Standards Relating to Fair Trial & Free Press 3.5(f)).1
We did not elaborate in Bigley on the definition of “serious questions of
possible prejudice.” See id.We again confronted the problem of midtrial publicity in Frank,
where local newspapers had published several stories during a lengthy
continuance in the trial. See Frank, 298 N.W.2d at 326. The stories
referred repeatedly to witnesses who had left Iowa but were subpoenaed
to return and stated the witnesses had key testimony that was important
to the State’s case. Id. Frank did not request a jury poll but asserted on
appeal that the trial court should have polled the jury sua sponte
1Since Bigley, the ABA has revised Standard 3.5(f). The relevant language now
appearing in standard 8-5.5(d) reads:
If, during the trial, the court determines that information has been
disseminated or otherwise made publicly available that goes beyond the
record on which the case is to be submitted to the jury and raises
serious questions of prejudice, the court may on its own motion or on the
motion of either party question each juror, out of the presence of the
others, about exposure to that information.
ABA Criminal Justice Standards on Fair Trial & Free Press 8-5.5(d),
www.americanbar.org/groups/criminal_justice/standards/crimjust_standards_fairtrial
_blk.html. Because neither party asserts we should modify Bigley, we leave for another
day the question whether to adopt the revised ABA standard.
11
because the published articles’ myopic focus on the missing witnesses
prejudiced her defense. See id. at 327. We concluded “the number and
contents” of the articles were not “of sufficient magnitude to establish a
substantial likelihood of probable jury prejudice” rendering the district
court’s decision not to poll the jury an abuse of discretion. Id. We
declined to find prejudice “from the mere publication or broadcast of
news stories” unless there is “evidence of jury exposure to trial publicity.”
Id. at 327–28. 2
In Marr, a newspaper article containing numerous factual errors
appeared after the jury was empaneled but before any trial testimony
was received. Marr, 316 N.W.2d at 180. The district court conducted a
jury poll upon request but, satisfied that the jurors who had read the
article could remain impartial, denied the defendant’s motion for
mistrial. See id. We found no abuse of discretion in that ruling because
“[a]lthough the article was factually inaccurate . . . , it alone d[id] not rise
to the level of pervasive and inflammatory publicity denying the
defendant” a fair trial. Id. at 181.
The question in this case is a logical extrapolation from Marr:
When does factually inaccurate midtrial publicity endanger a trial’s
fairness and require the court to poll the jury upon request? Two United
States Circuit Courts of Appeals have concluded an isolated
misstatement in a published press report did not present a significant
danger of prejudice. See Booton v. Hanauer, 541 F.2d 296, 298 (1st Cir.
1976) (concluding a trial judge did not err in failing to poll the jury when
2Several years later, the court of appeals concluded counsel’s decision not to
request a jury poll did not constitute ineffective assistance. Frank v. State, 376 N.W.2d
637, 641 (Iowa Ct. App. 1985). Frank’s federal habeas corpus petition asserting the
same ground was also unsuccessful. Frank v. Brookhart, 877 F.2d 671, 674–75 (8th
Cir. 1989).
12
requested because the article published during trial “was inaccurate, but
. . . not substantially misleading”); United States v. McGann, 431 F.2d
1104, 1109 (5th Cir. 1970) (concluding a trial judge correctly declined to
examine the jury because the factual misstatements “were not of a
substantial nature”). The difficulty comes, of course, in determining how
substantial a published inaccuracy must be to raise serious questions of
possible prejudice requiring jury polling upon request. As one court has
noted, “The cases have given less attention to drawing the line between
what is prejudicial publicity and what is not.” United States v. Hyde, 448
F.2d 815, 849 (5th Cir. 1971).
B. The Qualitative Component. The parties agree the Bigley
standard includes a qualitative component. Factors informing the
qualitative analysis include “how closely related the publicity is to the
case” and the tone the article, post, or broadcast displays. Brown, 601
P.2d at 232; see also Herring, 568 F.2d at 1104–05 (considering the
publicity’s effect on any defenses); Harper v. People, 817 P.2d 77, 84
(Colo. 1991) (en banc); Holly, 201 P.3d at 849–50. As the Herring court
summarized,
The court should consider how closely related to the case the
material is. In this connection, the court should also
examine the nature of the defenses raised in order to weigh
the effects of the publicity on those defenses. Another
important consideration is . . . . [whether the] material . . .
not only recounts facts outside the record but also
speculates directly on a defendant’s guilt or innocence.
Herring, 568 F.2d at 1104 (footnotes omitted).
C. The Quantitative Component. While the parties agree the
Bigley standard requires a qualitative analysis of the claimed prejudice,
they do not agree on the question whether the court must also consider a
quantitative component. Many cases applying the ABA standard we
13
adopted in Bigley evaluate the likelihood that the midtrial publicity
reached the jury. See, e.g., id. at 1104–05; Harper, 817 P.2d at 84; Holly,
201 P.3d at 849–50. Courts confronting factually inaccurate midtrial
publicity—but not specifically applying the ABA standard—have done so
as well. See, e.g., Brown, 601 P.2d at 232 (concluding the prejudice
determination includes a consideration of “the likelihood that the jury
was exposed” to the publicity); Lindsey v. State, 295 N.E.2d 819, 824
(Ind. 1973) (noting the court should consider “the content of the
publication and the likelihood of its having come to the attention of any
juror”); State v. West, 350 N.W.2d 512, 519 (Neb. 1984) (stating broadly
that the prejudice determination “is to be resolved by the trial court on
the basis of an independent examination of all the circumstances”). We
concur with these courts that have concluded the determination of
whether the factually inaccurate midtrial publication raises serious
questions of possible prejudice must consider quantitative factors such
as frequency or extent of coverage, Holly, 201 P.3d at 849, and relative
prominence or obscurity, Brown, 601 P.2d at 232. Courts assessing the
possible prejudice arising from the midtrial publication of inaccurate
information and the need for a jury poll should also consider
the nature of the trial judge’s previous instructions on the
matter. Has the court told the jury not merely to disregard
but not to examine at all any external information on the
case, especially that which appears in the news media? Has
the court so instructed the jury on a regular basis, and how
much time has elapsed since the court’s last directive and
the dissemination of the material in question?
Herring, 568 F.2d at 1105; accord Holly, 201 P.3d at 849. Finally, courts
should consider the publisher or broadcaster’s reputation or standing—
in other words, its credibility. Cf. Williams v. Griswald, 743 F.2d 1533,
1539 (11th Cir. 1984) (concluding jurors could not reasonably think
14
midtrial publicity was credible after the trial judge expressly admonished
them that it was false).
Prominence of the published inaccuracy is a multifaceted inquiry
evaluating not only the publication’s prominence in the community, but
also the article’s prominence within the publication. One court refers to
this consideration as “conspicuousness.” See Holly, 201 P.3d at 849.
Depending upon the publication, a particular article within it could be so
conspicuous as to create a strong likelihood that the jurors encountered
the information. See, e.g., United States v. Aragon, 962 F.2d 439, 445 &
n.9 (5th Cir. 1992) (concluding midtrial publicity likely reached the jury
when it “appeared in the front page of the Metro section of the most
widely circulated local paper” and “newspaper vending machines
surrounded the courthouse”); Herring, 568 F.2d at 1103 (“[T]he
headlines, photograph, and article appeared on the front page of Macon’s
leading morning newspaper.”); United States v. Lord, 565 F.2d 831, 838
(2d Cir. 1977) (“The widespread availability of the newspapers as well as
the prominent position occupied by the articles[] created a strong
possibility that some jurors might have been exposed . . . .” (Footnote
omitted.)); Harper, 817 P.2d at 85 (“The article appeared during the
second day of trial in the local newspaper of [Grand Junction, Colorado,]
a relatively small city.”); Holly, 201 P.3d at 850 (“[T]he article was
prominently featured on the front page of a local newspaper in
[Alamogordo, New Mexico,] a small community.”).
But the facts may also indicate the publicity was obscure or
hidden enough as to make it unlikely the jurors encountered it. In other
words, the information may not be conspicuous even if the publication is
prominent. See, e.g., United States v. Bermea, 30 F.3d 1539, 1558 (5th
Cir. 1994) (concluding the likelihood the material reached the jury was
15
low because the allegedly prejudicial portion was “only three short
paragraphs in the middle of a longer article”); Williams, 743 F.2d at 1539(“The entire story was composed of only eight sentences and appeared
once on an inside page of a local newspaper.”); United States v. Goodman,
605 F.2d 870, 883 (5th Cir. 1979) (“[The article] appeared . . . at the
bottom of an inside page of the business and sports section under the
over-the-counter stock market quotations.”); State v. Mucha, 47 A.3d
931, 940 (Conn. App. Ct. 2012) (noting prejudicial content “appeared in
the final three paragraphs of the article on an inner page of the
newspaper where a conscientious juror . . . would not come upon it
easily”). As the Connecticut Appellate Court explained,
A notorious article, prominently displayed in a local
newspaper with a blaring headline, a boxed quotation or an
accompanying photograph stating or displaying prejudicial
information about a case might raise the possibility of juror
exposure . . . at least to the point of requiring further judicial
inquiry, regardless of whether the jury was instructed to
avoid media coverage. In this case, however, . . . where the
prejudicial content of the article was not so overtly and
conspicuously published, there is no reason to believe that a
diligent juror, attempting to follow the court’s instructions to
avoid all media coverage of the case, would ever be exposed
to it.
Mucha, 47 A.3d at 940–41.
Prominence can also work in tandem with the credibility of the
publisher. To assess credibility in this context, the court must consider
both the publisher’s credibility and the specific information’s credibility.
For example, a tabloid might be prominent but notoriously not credible.
A single blog post from a blog with few readers or a public tweet from an
account with few followers will present less risk of serious prejudice as
well, because those sources are neither prominent nor necessarily
credible. Furthermore, evaluating both the publication generally and the
16
specific information reduces the likelihood that midtrial publicity caused
prejudice, even if it reached jurors, where the inaccurate statement was
obviously inaccurate. See, e.g., State v. Williams, 105 N.W. 265, 270
(Minn. 1905) (concluding that although an article’s “comments upon the
manner and appearance of the defendant” were unfair, there was not
enough possible prejudice to require a new trial because “the comments
related to matters occurring in the presence of the jury, who were in a
position to verify them”); West, 350 N.W.2d at 519 (finding no likelihood
of prejudice from inaccurate information about the defendant’s blood
alcohol concentration because “[o]bviously, the decimal points . . . were
in the wrong place” and any juror would know the information was
wrong); State v. Lagerquist, 180 S.E.2d 882, 885 (S.C. 1971) (“[I]f any
member of the jury read [the article] he could not help but detect that the
writer had described the charges erroneously.”).
Lastly, prominence of the published information can work in
tandem with frequency. Midtrial publicity that appears repeatedly,
appears in multiple publications, is both printed and broadcast, or is
shared widely on social media more likely reaches the jury than publicity
disseminated only through one channel, method, or medium. See People
v. Crowder, 425 N.E.2d 994, 1001 (Ill. App. Ct. 1981) (concluding the
trial court should have conducted a jury poll in part because the
potentially prejudicial material “appeared in two of Rockford’s daily
papers”); People v. Weaver, 412 N.E.2d 1353, 1361 (Ill. App. Ct. 1980)
(“[T]he potential for undue prejudice was great, and was significantly
enhanced by the fact that the publicity complained of appeared not only
in a local suburban paper . . . , but in city papers, and on major
television and radio networks.”).
17
D. Applying the Factors. We acknowledge that “in many
instances it would be impossible for a defendant to show actual juror
exposure . . . without a direct inquiry of the jurors themselves.” State v.
Williams, 305 S.E.2d 251, 261 (W. Va. 1983). Our quantitative standard
on jury polling therefore evaluates the likelihood that information
reached the jury rather than proof the jury was actually exposed to it.
See id. at 261 n.5; see also Harper, 817 P.2d at 82 (“[R]equiring
independent evidence of the jury’s exposure to outside information as a
prerequisite to polling the jury fails to acknowledge the significant
obstacles to obtaining such evidence.”); State v. Varner, 643 N.W.2d 298,
304 (Minn. 2002) (concluding a trial court “applied the wrong standard”
when it “was not focused on . . . serious questions of possible prejudice,
but rather on whether jurors . . . were actually prejudiced”); State v.
Clark, 675 P.2d 557, 560 (Utah 1983) (“[W]here the publicity takes place
during the trial, the defendant cannot ever show actual exposure or
prejudicial effect unless the court allows the jury to be polled.”).
Likelihood in this context means “there is a realistic possibility that [the]
information may have reached one or more of the jurors.” State v. Bey,
548 A.2d 846, 867 (N.J. 1988).
We turn first to an analysis of the qualitative factors. The
inaccurate information published in the Gazette article during the trial
was directly related to the State’s burden of proof and Gathercole’s
defense. Although the content of the article purporting to report on the
State’s evidence while the trial was underway was false and inconsistent
with Gathercole’s defense, we find it unlikely that any juror who read the
misstatement would have credited it. The State’s evidence established
that the only palm print lifted from Rottmiller’s vehicle was Rottmiller’s.
The prosecutor confirmed this in his opening statement and in his
18
closing argument, repeatedly informing the jurors that the State
produced no physical evidence connecting Gathercole to the crime scene.
The Gazette article was neither opinion-laden nor inflammatory in tone.
Thus, the qualitative factors in our analysis do not lead us toward a
conclusion that Gathercole established serious questions of possible
prejudice arose from the Gazette article.
The quantitative factors are not supportive of Gathercole’s position
either. The Gazette is the most prominent news publication in Cedar
Rapids. Yet, the record does not reveal whether the article in question
was featured conspicuously on the Gazette’s website, whether a
significant number of website visitors viewed it, or whether (and if so,
where) it appeared in print. The limited information in the record
discloses only minimal social media interaction by a handful of website
visitors. Additionally, as the district court noted, the Gazette article’s
misstatement did not appear in the headline. We acknowledge the
headline would not necessarily have alerted a juror that the article was
about this case, because it did not use Gathercole or Rottmiller’s name.
Thus, it is conceivable that a juror could have begun reading the article
without realizing its connection to their jury service. However, a juror
who clicked on the article and who was conscientious about the court’s
admonitions would likely have stopped reading as soon as they
encountered Rottmiller’s name—which appears before any mention of the
palm print. See Mucha, 47 A.3d at 940 (doubting that a conscientious
juror would come upon the potentially objectionable material
inadvertently because it was in the final three paragraphs of an article on
an inner page of the newspaper); State v. Johnson, 41 So. 3d 1188, 1204
(La. Ct. App. 2010) (describing a juror who saw a bland headline and
began reading but stopped when he encountered information he
19
recognized from trial). Furthermore, the court’s admonition directed
jurors to avoid media reports—not just to disregard them—and the court
gave a renewed warning, including a specific mention of media,
immediately before recessing the jury on the afternoon the article
appeared.
In one federal case examining midtrial publicity, the court noted
“the jurors had not been forbidden to read all newspapers—only
accounts of the trial,” so the fact jurors had been seen reading the
newspaper in which midtrial publicity appeared weighed in favor of at
least a realistic possibility the jurors had come across the potentially
prejudicial material. United States v. Thompson, 908 F.2d 648, 652 (10th
Cir. 1990). The district court’s admonitions in this case were similarly
limited. The court did not admonish jurors to avoid news altogether,
only “news accounts of this trial,” whatever form they might take.
However, the record in this case does not reveal whether, as in
Thompson, any juror read any part of the February 5 Gazette online or
print edition. We decline to speculate on this record that they did.
The record in this case does not demonstrate a realistic possibility
that the challenged information reached the jury. We conclude
Gathercole did not establish the Gazette article raised serious questions
of possible prejudice and the district court therefore did not abuse its
discretion in denying the motions for mistrial and jury polling. Our
confidence in this conclusion is strengthened by Gathercole’s failure to
(1) submit a supplemental motion or brief regarding midtrial publicity
despite the court’s invitation, (2) renew his request for a jury poll after
the verdict but before the court dismissed the jury, or (3) make any
posttrial motion supported by evidence the Gazette article reached the
jury.
20
Although the district court did not abuse its discretion in this case,
we encourage courts to resolve doubts about whether information
published midtrial requires a poll requested by a party in favor of
granting a poll. See, e.g., Harper, 817 P.2d at 84; State v. Keliiholokai,
569 P.2d 891, 894 (Haw. 1977) (suggesting inquiry is proper where “the
probabilities of prejudice are not clearly evident and it is not known
whether the jurors have been exposed”); Bey, 548 A.2d at 869 (noting “a
court might properly choose to err on the side of caution when ruling on”
motions to poll the jury, preferring the “prophylactic” measure of polling
to uncover prejudice—or confirm its absence—“before ordering a new
trial has become the only option”). Although one court has suggested a
jury poll during a trial might be less than a perfect means of discerning
the nature and extent of prejudice, if any, resulting from factually
inaccurate midtrial publicity, “it at least gives some suggestion as to
whether the verdict was tainted with improper consideration and
improper influences.” People v. Cox, 220 N.E.2d 7, 9 (Ill. App. Ct. 1966).
E. Jury Admonition or Instruction. Lastly, we take this
opportunity to recommend that district courts supplement their jury
admonitions and instructions to accommodate technological progress
and the danger it can pose to fair and impartial trials. See Webster, 865
N.W.2d at 240–41 (recommending a jury admonition that specifically
targets social media use leading to possible juror misconduct claims). As
we did in Webster, we refer to the United States Judicial Conference
Committee on Court Administration and Case Management’s
recommended jury instructions as a possible guide for Iowa judges. See
id. One of the recommended instructions states, in part,
You may not use . . . electronic means to investigate or
communicate about the case because it is important that
you decide this case based solely on the evidence presented
in this courtroom. Information on the internet or available
through social media might be wrong, incomplete, or
21
inaccurate. You are only permitted to discuss the case with
your fellow jurors during deliberations because they have
seen and heard the same evidence you have. In our judicial
system, it is important that you are not influenced by
anything or anyone outside of this courtroom. Otherwise,
your decision may be based on information known only by
you and not your fellow jurors or the parties in the case.
This would unfairly and adversely impact the judicial
process.
Judicial Conference Comm. on Ct. Admin. & Case Mgmt., U.S. Cts.,
Proposed Model Jury Instructions: The Use of Electronic Technology to
Conduct Research on or Communicate about a Case (2012),
www.uscourts.gov/file/3159.
A Florida judge has suggested a similar instruction:
It is important that you follow my court orders. If you
gather information on your own, you may then make
decisions with information that is different from information
considered by all the other jurors. Your information and
research may simply be wrong, inaccurate, or incomplete.
Locations may change. The lawyers would have no method
of knowing what research or information you have
considered. The lawyers would be unable then to question
or rebut your research or information. The law prohibits
jurors from considering information that may be irrelevant or
prejudicial to a party.
If you violate my order by communicating on social
media sites or conducting research, you may cause a
mistrial. A mistrial wastes your money as a taxpayer and
causes the entire trial to begin anew regardless of how far we
have come in the trial when your misconduct is discovered.
A mistrial unfairly delays justice to the parties and wastes
everyone’s time, including the time of the judge, the
attorneys, the parties, the witnesses, and your fellow jurors.
....
While you may feel that the judge and the attorneys
are hiding information from you, it is important that the
judge decide which information should be provided to jurors
to maintain fair proceedings for all parties and to maintain
the integrity of the courts.
Antoinette Plogstedt, E-Jurors: A View from the Bench, 61 Clev. St. L.
Rev. 597, 648 (2013).
22
Both instructions we quote here are adaptable for use in Iowa and
can be adjusted to accommodate factual scenarios like the one
presented in this case. For example, an instruction or admonition might
target affirmative research and inadvertent discovery of information
outside the trial record, emphasizing that information obtained either
way could be wrong or inaccurate. We encourage courts to add
references to electronic media to their existing media admonitions. By
acknowledging and anticipating jurors’ use of technology, district courts
“will minimize the risk of unnecessary and costly mistrials due to the
failure of jurors to . . . understand [clearly] their obligations in the
electronic world.” Webster, 865 N.W.2d at 241.
IV. Conclusion.
Under the Bigley standard, courts must poll the jury about
exposure to midtrial publicity only if the material raises serious
questions of possible prejudice. In determining whether information
raises serious questions of possible prejudice, judges should consider
both qualitative and quantitative factors. Applying those factors, we
conclude on this record that the factually inaccurate Gazette article
appearing online during Gathercole’s trial did not raise serious
questions of possible prejudice. The evidence presented at trial clearly
contradicted the article, and the jury knew it could only consider
evidence presented in court. Furthermore, there was not a realistic
possibility the article reached the jury. Accordingly, the district court
did not abuse its discretion in denying Gathercole’s motion for a mistrial
and alternative motion to poll the jury. We affirm Gathercole’s
convictions.
COURT OF APPEALS DECISION AND DISTRICT COURT
JUDGMENT AFFIRMED.