Prosecutor’s Tweets May Have Been Improper but Did Not Deprive Defendant of Fair Trial

By: Jeffrey Hamlin

Last month, the Missouri Court of Appeals published its opinion holding that criminal defendant David Polk is not entitled to a new trial.  Although the prosecutor may have acted improperly by posting trial updates via Twitter, there was no evidence that her updates swayed the jury to convict Polk.  The court’s decision resolves a once-cold case that began in St. Louis more than twenty years ago.

In January 1992, Polk approached an eleven-year old girl on the street, then forced her to the basement of a vacant lot and repeatedly assaulted her.  Soon after, the victim and her mother reported the crime to local authorities, who collected DNA and other evidence.  After that, the case went cold.  But three years ago, authorities were notified of a DNA match linking Polk to the crime.  The investigation was reopened and culminated in Polk’s prosecution for forcible rape and forcible sodomy.  A jury convicted on both counts, and Polk was sentenced to fifteen years on each count.

After trial, Polk asked the judge to dismiss the case or strike the jury panel.  In support of his request, Polk submitted evidence that, during the time frame of the trial, Circuit Attorney Jennifer Joyce had posted inappropriate comments about the case on Twitter:

• Prior to jury selection, Joyce tweeted, “David Polk trial next week.  DNA hit linked him to 1992 rape of 11 yr old girl.  20 yrs later, victim now same age as prosecutor.”
• During trial, Joyce posted two comments.  In the first, she tweeted, “Watching closing arguments in David Polk ‘cold case’ trial.  He’s charged with raping 11 yr old girl 20 years ago.”  In the second, she tweeted “I have respect for attys who defend child rapists.  Our system of justice demands it, but I couldn’t do it.  No way, no how.”
• During deliberations, Joyce tweeted, “Jury now has David Polk case.  I hope the victim gets justice, even though 20 years late.”
• Post-verdict, she tweeted, “Finally, justice.  David Polk guilty of the 1992 rape of 11 yr old girl.  DNA cold case.  Brave victim now the same age as prosecutor,” and “Aside from DNA, David Polk’s victim could identify him 20 years later.  Couldn’t forget the face of the man who terrorized her.”

According to the defense, Joyce’s comments not only violated the professional rules of conduct but tainted the jury verdict as well.  But the trial court refused to dismiss the indictment or strike the jury, and Polk appealed.

In a decision published last month, the appeals court affirmed Polk’s conviction, but acknowledged that the Circuit Attorney’s posts were problematic.   The court admitted that her comments may have violated the rules of professional conduct for prosecutors.  The rule in question prohibits prosecutors from making out-of-court statements that stoke public sentiment against the accused unless they serve a legitimate law-enforcement purpose.  Joyce’s tweets may have crossed the line.  They did not appear necessary to inform the public, but highlighted evidence against the defendant, dramatized the victim’s plight, and referred to Polk as a “child rapist,” a term that was likely to arouse heightened public condemnation.

The Court of Appeals also noted that such posts have the potential to taint a jury verdict.  But the law required Polk to show more than potential prejudice—he had to show that the extrajudicial comments “substantially swayed” the jury.  Because he proffered no evidence that jurors were aware of, much less influenced by, the posts, Polk was not entitled to a new trial.

Jennifer Joyce is not the first prosecutor to catch flak for abusing social media.  Cleveland prosecutor Aaron Brockler was fired after he contacted defense witnesses on Facebook and dissuaded them from providing alibi testimony.  But the issue in that case was the prosecutor’s confirmed use of deception to influence trial witnesses.  The issue in Polk’s case was whether the prosecutor’s tweets influenced the jury, as alleged.  There was no evidence to that effect, so the conviction was affirmed.