A juror who posted comments on Facebook about his case during trial will have to turn over the posts.

After initially staying an order that would have let a judge review the posts, the California Supreme Court on Wednesday dissolved the stay and let stand an appellate ruling upholding Sacramento County Superior Court Judge Michael Kenny’s order.

The case of Juror No. 1, as he is known in court filings, has been closely watched as courts seek to balance defendants’ fair-trial rights against social media users’ expectations of privacy. Juror No. 1 served as the jury foreman on a five-defendant assault trial overseen by Kenny in 2010.

After the jury reached its verdicts, a fellow juror told a defense attorney that the jury foreman had posted comments about the case on Facebook during the trial. Kenny ordered an evidentiary hearing, and Juror No. 1 admitted that he had told online friends that testimony about cellphone records was so boring he’d almost fallen asleep. Other posts, he said, were just meant to tell followers that he was still serving on jury duty. He testified that he hadn’t read any of his Facebook friends’ responses to his posts.

Kenny found all of the jurors “credible.” None was charged with contempt. But one of the defendants then subpoenaed the foreman’s Facebook posts and other electronic communications. Kenny quashed the subpoena as overly broad, but issued an order calling on the foreman to consent to the search and release of his records.

In May, a unanimous Third District Court of Appeal panel ruled in Juror No. 1 v. Superior Court (Royster) that the Stored Communications Act offered no protections to Juror No. 1 and ordered him to sign a consent form that would authorize Facebook Inc. to forward the posts to the trial judge.

The juror’s lawyer, Kenneth Rosenfeld of Sacramento’s The Rosenfeld Law Firm, didn’t immediately respond to an email Thursday morning. He had previously said the case poses “significant legal and constitutional issues” that should be heard by the state’s highest court.

 

Scott Graham is a reporter for The Recorder, a Legal affiliate based in San Francisco..