The Court of Appeals expressed concern on Thursday that a La Plata County judge may have effectively gaslighted some jurors by saying they did not see what they thought they saw: the defense attorney discreetly taking their picture with her cell phone.

Cruz Frederick Baca, in appealing his vehicular assault and related drunk driving convictions, argued that District Court Judge William L. Herringer failed to adequately investigate and declare a mistrial after three jurors at his 2017 trial came forward alleging Baca’s lawyer used her phone to take a picture of them. Instead, the judge told the jurors they must have misread the situation.

The jurors had reported what they saw to the bailiff and asked whether photography was allowed. Herringer took the issue to the attorneys, and Baca’s lawyer denied photographing the jurors. She offered to let Herringer look at the photos on her phone, which he declined to do.

But when the defense attorney raised the possibility that the jurors’ mistaken observation might compromise Baca’s right to a fair trial, Herringer rebuffed her request to question the three jurors individually. Instead, he addressed the jury as a whole, alerting them that some jurors were “under the impression” that their pictures were taken.

“I will tell you that counsel’s indicated that that’s not the case and there must be some misunderstanding,” the judge said. “So I just wanted to assure you that that did not happen and it must have been some misinterpretation in terms of how the phone was being used.”

He added that “hopefully, that addresses it,” and asked anyone who felt the controversy affected their judgment to bring it to the court’s attention. The defense remained worried that the three jurors may not have trusted Baca’s attorney even after the judge’s comments, but Herringer denied a motion to declare a mistrial.

A three-judge panel for the Court of Appeals indicated its concern with how Herringer handled the situation, deciding that there was, in fact, the potential for jurors to harbor a bias against the defense as a result of the episode.

“The jurors were concerned enough to report the conduct to the bailiff. The allegation cannot be dismissed as a mere innocuous misunderstanding,” wrote Judge Elizabeth L. Harris in the panel’s opinion. She added that the jurors reportedly saw the lawyer point her phone in their direction and press a button – an observation that Herringer characterized as “some misinterpretation.”

“For one thing, we are skeptical that the court’s instruction would have persuaded the three jurors that they did not see what they thought they had seen,” Harris explained. “While the court has discretion to fashion an inquiry…the court does not have discretion to forgo any inquiry at all.”

Ultimately, the appeals panel decided against reversing Baca’s convictions due to overwhelming evidence that he had committed the offenses. Instead, the panel faulted Herringer for not following the protocol the Colorado Supreme Court laid out in 1991, after a local newspaper article revealed a defendant’s prior conviction in the middle of his trial. The Court determined that judges must analyze whether such outside information would potentially bias the jury, whether any juror learned of the information and, if so, whether it affected their ability to be fair.

In Baca’s case, the alleged picture-taking may have had a prejudicial effect. The fact that Herringer put the burden on jurors to self-report their doubts instead of investigating for himself was insufficient, Harris wrote.

The incident illustrates how technology in courtrooms, even in the hands of attorneys, can cause logistical headaches or worse. In 2018, WGLT radio in Illinois reported that surreptitious use of cell phones was beginning to affect witnesses, rather than jurors. Witness intimidation was a principle reason for the decision to ban cell phones at the McClean County courthouse in central Illinois.

“We had instances of people filming testimony on their phone and then posting it online to intimidate people,” county Sheriff Jon Sandage said. “Not only is it a security issue for witnesses, but it could also be a security issue for courthouse staff.”

The incident in La Plata County more closely resembled the circumstances that a federal appeals court based in Virginia considered last year. In that instance, a juror reported that family or witnesses for the defendants photographed or recorded her with their phones in the courthouse hallway. Although the trial judge was concerned about juror intimidation, there was no investigation into how the allegations affected the rest of the jury. That, the appeals court said, was a mistake.

The case is People v. Baca.