MAYS LANDING — An apparent ‘friend request' on a social networking site got a potential juror kicked out of the pool for the upcoming Atlantic City voter-fraud trial - and may result in a criminal charge.
Atlantic City Councilman Marty Small and 11 others are accused of violating voters' rights during Small's failed 2009 mayoral bid. Jury selection for the trial of six of those defendants — including Small — continued Thursday, exactly a month after it began. Since Oct. 4, Superior Court Judge Raymond Batten has not only presided over whittling down a jury pool of hundreds to the 18 who will hear the case, but also has heard dozens of motions that need to be addressed before the trial begins.
The judge has made sure to instruct the potential jurors not to have any contact with the defendants or lawyers involved in the case. But late Thursday afternoon, while the jury pool was not in the courtroom, defense attorney Michael Schreiber told Batten that a woman in the jury pool had tried to contact his client, LuQuay Zahir, through a text message.
As the discussion progressed, however, it was learned that the woman had apparently tried to add Zahir as a friend on her Facebook account.
The defendant told his lawyer that, as they were returning from a break, he saw a Facebook alert from the woman. Later, it was discovered that the message was the woman's name and a "confirm or ignore," which is what comes up when someone asks to be added as a friend.
Schreiber said he told Zahir not to respond and wanted to bring it to the court's attention. He said Zahir - who does not use that name on Facebook - does not know the woman but is acquainted with her sister. The two also have 93 friends in common on the social networking site, Schreiber added. Often the site will suggest people as friends when they have a lot of the same friends.
"I think she may even have him confused with someone else," Schreiber said.
He said he hoped not to make too much of the incident and did not want to get the woman in trouble, but the judge said he had an obligation to question her because she had broken his order, and possibly the law. The potential jurors — who all are on their second round of jury selection — had been warned about actions of this kind, he noted.
"Then she makes contact electronically with a defendant after being told, how many times ... ‘Do not have any contact with anybody anywhere'?" Batten asked.
He said it could constitute a fourth-degree crime. Because of the potential criminal charge, Batten said he would advise the woman to meet with counsel before answering what, if anything, she did to contact Zahir. Batten also decided he had to ask the woman — who indicated on her questionnaire that she knew two other defendants — if she had shared any of the communication with others in the jury pool.
When the woman was called into the courtroom, she appeared shocked as Batten told her what he had learned. She opened her mouth to answer the allegation, but he told her not to say anything until she sought counsel. But he did let her confirm that she had not spoken to any of the others in the pool about any of it.
She was dismissed from the pool, and led out by a court aide. It was unclear whether any charges would be sought.
Before she was called in, Small's attorney, Stephen Funk, suggested that the woman be given just a "stern warning," and said talking about a possible charge and a lawyer could leave her scared.
The incident raises questions about the use of electronic communication in today's courtrooms, which have recently opened up to allowing reporters to text during trials and put information up on Twitter and news websites while court is still in session.
Batten indicated that he had never used Facebook and did not intend to start by looking at the alleged communication.
"I wouldn't even know what I was looking at," he said.
Jury selection will continue today. Usually, the judge has not had selection Fridays.
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