United States v. Loughry: Failing to “Follow” the Sixth Amendment Threat Posed by Juror Social Media Access

Aja Pollack

In United States v. Loughry, the Fourth Circuit wrestled with whether the district court abused its discretion in denying former West Virginia Justice Allen Loughry a Remmer hearing after one of the jurors in his federal criminal trial accessed her Twitter account during trial. Although the juror in question was “following” two journalists who were actively reporting on the trial, because she had not “liked” or “retweeted” any relevant tweets, the court affirmed the decision of the district court, holding that any potentially prejudicial extrinsic contact was too speculative to necessitate a hearing. Juror social media access constitutes a threat to Sixth Amendment rights that, thus far, courts have struggled to adequately address. In Loughry, the Fourth Circuit succumbed to these struggles, relying on a profound misunderstanding of how modern social media platforms function. In doing so, it set a higher threshold inquiry for Remmer hearings than dictated by its own precedent and joined the ranks of sister circuits whose similarly heightened Remmer inquiries pose an imminent threat to Sixth Amendment rights. Given the ubiquitous nature of social media and the fact that it is increasingly difficult for jurors to avoid contact with potentially prejudicial information, the court should, instead, have adhered to the minimal threshold inquiry established by Remmer v. United States and reversed the decision of the lower court.