"Thou shalt not Twitter."
That's what Edward Ohlbaum, a Temple University law professor, suggested should be the 11th Commandment of proposed jury instructions for the courts in the Internet Age.
That was Ohlbaum's reaction yesterday to the blogging juror, Eric Wuest, 35, of Collegeville, who had posted status updates on Facebook and Twitter social networking Web sites about the federal corruption trial of former state Sen. Vincent Fumo since last September.
While prominent attorneys agreed new jury instructions are necessary, they were split about whether issues raised by the blogging juror were appealable.
In part, that was because U.S. District Judge Ronald Buckwalter denied a defense request for a mistrial in a 45-minute hearing in his chambers. The judge found Wuest credible when he said he did not discuss the trial with anyone.
"We're devastated about the outcome," said Fumo attorney NiaLena Caravasos, who expects the juror's actions to be a part of post-trial motions.
"We're in a whole new world - where once-private thoughts are shared instantaneously with all to see on the Internet," she added, calling a blogging juror "a novel" legal issue.
Robert Zauzmer - chief of federal appeals, who prosecuted Fumo - said, "The blogger made a few posts, but nothing of substance. It's not a significant problem at all."
Wuest "should have known better," said several attorneys, after learning he worked for a Center City law firm as a benefits coordinator.
But Wuest showed no remorse yesterday.
"The judge heard the story; the judge decided on the story," he told reporters. "What were my postings, but announcements? I wasn't discussing the case - I was discussing that we were done."
In fact, Wuest posted oblique comments throughout the trial, not just, "Stay tuned for a big announcement on Monday everyone!" which he posted Friday.
Wuest admitted in the judge's chambers that he panicked and deleted his postings after watching TV news on Sunday night about a juror - i.e., him - blogging about the trial.
"This particular juror flouted the authority of the court," said Sayde Ladov, chancellor of the Philadelphia Bar Association. "It's definitely an appealable issue."
"If it was me wearing the robes, I would have wanted to know if the other jurors had been impacted by what this juror did," said Ladov, who may have replaced him with an alternate.
"If the judge satisfied himself that it was harmless error, you stop right there in terms of an investigation," she added. "It was wrong, but not prejudical.
"If the judge abused his discretion, she added, the 3rd Circuit Court of Appeals will "look at the totality of the circumstances."
Attorney David Rudovsky, senior fellow of the University of Pennsylvania Law School, said, "Courts generally will not overturn a verdict unless there was improper conduct and prejudice toward the defendant.
"Here it appears there's been improper conduct," he added, but "it's not clear the defense has been able to show prejudice toward the defendant."
Both Rudovsky and Ohlbaum called an appeal a long shot.
Members of the Federal Defender Association believe an appeal is warranted.
Felicia Sarner, supervisory assistant federal defender in the trial unit, said the juror "breached his duty to keep comments confidential. . . . He was provoking questions."
Brett Sweitzer, assistant federal defendant in the appeals unit, said, "At the very least, the juror should have been taken off the panel. Set the clock back and start over.
"All you need to know is there was blatant misconduct." *