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Allen Loughry

Ex-West Virginia Supreme Court justice Allen Loughry emerges from the Robert C. Byrd U.S. Courthouse, in Charleston, during closing arguments in his October 2018 federal criminal trial.

Convicted former state Supreme Court Justice Allen Loughry had his day in court before the U.S. Fourth Circuit Court of Appeals, sitting as an en banc panel, but based on questioning, the judges were not completely persuaded by his claims that a juror’s use of Twitter had affected the outcome of his 2018 U.S. District Court trial.

Loughry, 50, who was released from federal prison last December after serving 20 months for 11 counts of mail and wire fraud and lying to federal authorities, is asking the appeals court to order an evidentiary hearing to determine if the juror’s use of Twitter before and during the trial had tainted the verdict.

Loughry was convicted in 2018 for mail and wire fraud for use of a state vehicle and state purchasing card for personal travel, and for lying to FBI agents regarding his knowledge that a desk that he had moved from court offices in the state Capitol to his home was a valuable historic “Cass Gilbert” desk.

According to Loughry’s brief, his attorneys learned of the juror’s Twitter activity after his conviction. A U.S. District Judge and a three-member Fourth Circuit panel have previously rejected calls for a new trial or for an evidentiary hearing.

In the brief, attorneys for Loughry noted that in the four months prior to the trial, the juror had “liked” a total of 11 tweets, four of which they said dealt with allegations of impropriety by Loughry and the state Supreme Court.

That included one by Delegate Mike Pushkin, D-Kanawha, which stated: “When the soundness of the judiciary is questioned, coupled with the corrupt activities of other branches of government, how is the public ever to have any faith in state government?” — a line taken verbatim from Loughry’s book about political corruption in West Virginia, published before he ran for the high court.

The brief also noted the juror followed two Charleston reporters on Twitter who had extensively covered the Loughry investigation and trial.

Despite judge’s orders to jurors to stay off social media during the trial, the brief states the juror was on Twitter at least twice during the six-day trial, tweeting one original post, retweeting another post, and liking a third post — none of which had anything to do with the trial.

Without calling the juror to testify at an evidentiary hearing, Loughry’s attorneys said it’s impossible to know exactly what the juror read or saw during those visits to Twitter: “Simply scrolling through one’s Twitter feed, reading the tweets of those one follows, or clicking on articles posted on other’s tweets is not activity visible to third parties or otherwise knowable through publicly accessible data.”

Loughry’s attorneys argued the juror would have been highly likely to have seen at least some of the multiple tweets posted during the trial by the two reporters that the juror followed.

During questioning, most of the Fourth Circuit judges seemed unconvinced that the juror’s Twitter activity had affected the outcome of the trial.

“The limiting principal is not just that a juror is on Twitter, that can’t be enough,” said Circuit Judge Albert Diaz. “We’d never be able to empanel a jury if that was the case.”

Circuit Judge Paul Niemeyer said the court cannot speculate about a juror’s social media activity based on the limited evidence presented to the court.

“You’ve got four tweets over four months and they’re fairly innocuous,” he said. “Why don’t we bring in every juror, and ask them if they searched for improper information? … [W]here are we going to draw the line if we don’t have more evidence that isn’t speculative?”

However, Circuit Judge James Myer suggested that standards for establishing juror misconduct need to adapt to modern social media.

“We’re dealing with a whole different world in terms of tech,” he said. “Why not simply just ask the question, then the judge can make a decision?”

Circuit Judge Roger Gregory took the opposite tact, suggesting that implying a juror was prejudiced because of a Twitter account is the modern equivalent of claiming that a 1950s juror could not be impartial because he had failed to cancel his newspaper subscription before the trial.

The judges did not indicate during Monday’s virtual hearing when they intend to rule on Loughry’s motion.

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