Stephen Hayes will be sentenced to death, and twitter is to blame.  That’s one of the arguments being advanced by his attorney, Tom Ullmann, according to the New York Times.

One of the most provocative is that the intense reporting on the trial — including mainstream reporters’ extensive use of Twitter — created a “circus atmosphere” and such widespread, instant saturation with inflammatory details that the jury was improperly swayed by public passions. The claim could force appeals judges to grapple with the question of whether new technology requires new courtroom rules.

“As I experienced it during this trial, I think there’s a real danger that the inclusion of new technology in the courtroom is affecting an individual’s fair-trial rights,” said Thomas J. Ullmann, Mr. Hayes’s chief defense lawyer.

The complaint is rather broad and generic, applicable to almost any high profile case involving horrible acts, especially in a “small market” where its news value is so monumental that it receives constant attention.  There’s no claim that a witness was lost, or a juror was reading the twits. or approached by someone seeking to influence the verdict who was inflamed by the twits. 

Despite the dearth of detail, particularly given the nature of the crime which was a lurid as it gets, and thus inevitably the cause of inflamed passions, it raises a very interesting question.  As the Times notes, the “circus atmosphere”  served to overturn the conviction of Sam Shepard, and there’s a certain allure to challenging novel technology in the courtrooms that have yet to pass muster on appeal.

“There is a general reason for concern about the impact of the new media” in high-profile trials, said John J. Donohue III, a Stanford Law School professor who studied the Connecticut death penalty and wrote a report that said it was arbitrarily enforced.

Professor Donohue said some appeals judges might be intrigued by the idea that limiting instant communication from courtrooms might make trials fairer.

It seems that Donohue’s point is backward, that twitter (or any similar tech that allows for instantaneous, constant broadcast of information) can influence the jury’s perception about their job, giving rise to unbridled public scrutiny that would alter their ability to fulfill their duty to be fair to the defendant.  When the atmosphere is changed to one where the jury realizes that everyone “out there” is watching them, the pressure to conform to widespread public expectations certainly has an impact, and may well be the driving force that influences their decision.

On the other hand, there is a strong contingent that believes that trials, as public forums, should be open for all to see, exposed to the public as a critical part of our acceptance of the legal system as the appropriate means of dealing with crime.  We don’t want trials conducted in secret, a star chamber, and twitter is nothing more than the shiniest new means of disseminating information.

There are two failings with this argument.  First, closing the courtroom to twitting doesn’t mean that the trial is conducted in secret. Reporters will still fill the benches, and write word after word about each sordid detail, and the number of times critical players scratched their nose.  No one is suggesting a star chamber.

Second, the defendant’s right to a fair trial is both more directly implicated, and of greater immediacy, than the right to get information on twitter.  Hayes’ life is on the line.  For the rest of us, it’s a matter of hearing the latest before the newspaper arrives the next morning.  On balance, Hayes wins.

Granted, this issue will raise some serious concerns amongst twitterers, who have come to believe that they are entitled to access any melodrama in real time, and will simply reject the notion that tapping kwerkeys in the courtroom could have any impact on outcome.  After all, it isn’t twitter that made Hayes do what he did; it’s definitely not twitter that made this case as horrific as it was, and therefore the focus of such intense emotion.
If you don’t want to be prejudiced by intense public interest, then don’t commit a crime that will intensely interest the public.

The trial judge, Jon C. Blue of State Superior Court, tersely rejected the claims in a ruling last week, saying that the news media were “carefully controlled” and that there was no evidence the jury was driven by passion.

While the former is subjective and the latter almost invariably unprovable, Ullmann had little chance of persuading Judge Blue that he mishandled the media.  And indeed, it’s unlikely that he expected Judge Blue to rule otherwise, though he had to raise the argument to preserve the issue.  To do otherwise would be foolish. 

Having “enjoyed” the media circus, it seems almost impossible to believe that it doesn’t influence the jury.  There’s certainly a different atmosphere in a packed courtroom, with people scribbling (twitting?) away, and jurors admonished over and over not to read the newspaper (or twitter), secreted out of the courthouse by a cordon of officers and observing the mob of paparazzi attack.  One cannot experience that atmosphere without a mark being left.  It has a pressure all its own, on everyone involved.

But it’s hard to say what impact twitter, as opposed to traditional media, has on this circus.  There is the constancy of twitter, keeping every word, sigh, eye roll, tear of witnesses in the forefront of that portion of the public who cared enough to watch.  Is this better, worse, different than the huge, lurid headline?  Does this affect the pressure-cooker in a way that old-media circus didn’t?

The view from the cheap seats is never the same as the view from the trenches.  I look forward to hearing the details that the defense argues in support of its claim, and remain open to the idea that twitter, that constancy and immediacy, alters the equation. 

There is one thing, however, about which I have no doubt.  Neither the thirst for melodrama nor the love of technology trumps the defendant’s right to a fair trial.  I can’t help but wonder how those who have adopted tech as their savior, an entitlement that only Luddites could disdain, will respond,