                 IN THE SUPREME COURT OF IOWA
                                No. 14–0816

                            Filed March 25, 2016


STATE OF IOWA,

         Appellee,

vs.

THEODORE RAY GATHERCOLE II,

         Appellant.


         On review from the Iowa Court of Appeals.



         Appeal from the Iowa District Court for Linn County, Stephen B.

Jackson Jr., Judge.



         A defendant in a criminal case contends the district court should

have granted his request to poll the jury after a local newspaper

published a factually inaccurate online report about the case during

trial.     COURT OF APPEALS DECISION AND DISTRICT COURT
JUDGMENT AFFIRMED.



         Mark C. Smith, State Appellate Defender, and Vidhya K. Reddy,

Assistant Appellate Defender, for appellant.



         Thomas J. Miller, Attorney General, Kevin Cmelik and Mary A.

Triick, Assistant Attorneys General, Jerry Vander Sanden, County

Attorney, and Nicholas Maybanks, Assistant County Attorney, for

appellee.
                                       2

HECHT, Justice.

      Midtrial publicity is not a new phenomenon. See State v. Walton,

92 Iowa 455, 458–59, 61 N.W. 179, 180 (1894) (concluding when jurors

viewed      newspaper   editorials   about   a   criminal   trial during   their

deliberations, “they meddled and interfered with the order of the court in

a very reprehensible and unseemly manner”). But “in this day and age,

our jurors are part of the new electronic world.” State v. Webster, 865

N.W.2d 223, 239 (Iowa 2015). In this case, we apply precedent governing

print materials to that electronic world and determine whether a

factually inaccurate news story published on a local paper’s website

during a trial raised “serious questions of possible prejudice” requiring

the district court judge to poll the jury about possible exposure to it.

State v. Bigley, 202 N.W.2d 56, 58 (Iowa 1972).

      I. Background Facts and Proceedings.

      On June 15, 2013, Frederick Rottmiller was a maintenance man at

a Cedar Rapids apartment building. Rottmiller, a septuagenarian, was

called to an apartment occupied by Theodore Gathercole and his ex-wife

to inspect a water leak. While there, Rottmiller loaned Gathercole twenty

dollars. Hours later, after midnight, Gathercole knocked on Rottmiller’s

apartment door and asked for more money, claiming he wished to visit

someone in the hospital and needed the funds for a taxi fare. Rottmiller

refused to give Gathercole more money but offered to drive him to the

hospital.     Gathercole accepted the ride offer and walked away from

Rottmiller’s door while Rottmiller retrieved his shoes and car keys.

      Rottmiller soon walked to the parking lot where his truck was

parked.      As he approached the truck to unlock the door, Rottmiller

noticed someone standing near it.          Suddenly, Rottmiller was stabbed

with a knife and he collapsed to the ground. Declaring repeatedly, “I’m
                                     3

going to prison for this,” the assailant continued the attack as Rottmiller

lay on his back. The assailant fled without taking Rottmiller’s wallet, cell

phone, or any other property.

      Later, a passerby discovered Rottmiller on the ground.            The

passerby summoned a taxi and prompted the driver to call 911. Police

and paramedics responded to the call, and remarkably, Rottmiller

survived the attack.    Physicians surgically removed several inches of

Rottmiller’s intestine and treated other injuries including a chipped

vertebra and spinal cord damage.         Although he survived the attack,

Rottmiller lost vision in one eye and was unable to walk for several

months after the incident.

      Rottmiller told an officer responding to the 911 call that “a shorter

white male” had assaulted him, that he recognized the assailant, and

that the assailant “lives with a female named Lorrie.” Gathercole’s ex-

wife is named Lorrie, although Rottmiller did not expressly name

Gathercole as the assailant at the time.         Rottmiller later selected

Gathercole from a photographic lineup of six possible suspects.

      Police arrested Gathercole and charged him with attempted

murder, robbery, and willful injury. Trial began on February 3, 2014.

Jury selection consumed most of the first day.       After empaneling the

jury, the court recessed for the day and recited a lengthy jury admonition

that stated, in pertinent part,

      Prior to recessing, I’m required to admonish you. While I will
      give this admonition to you at this time, I will not go through
      the entire admonition each time we recess but will merely
      state that you must remember this admonition which has
      been previously given to you, therefore, please pay particular
      attention to it at this time.

            ....
                                        4
              You must avoid reading . . . , listening to, or watching
        news accounts of this trial for sometimes such accounts are
        based on incomplete information or contain matters which
        would not be admissible in court and could unduly influence
        your ultimate decision.

               ....

             As I said earlier, each time we recess I will not give this
        admonition in detail, merely I will just state that you must
        remember the admonition as it was given to you earlier.

The parties presented opening statements the next morning and began

calling witnesses.

        The State’s principal witness, Rottmiller, testified unequivocally

that Gathercole was the assailant. Gathercole’s defense theory disputed

identity, challenged Rottmiller’s perception and memory, and emphasized

the State produced no physical evidence placing Gathercole at the scene

of the crime.    The State acknowledged there was no physical evidence

placing Gathercole at the crime scene but contended Rottmiller’s

unequivocal     identification   of   Gathercole   supported   a   finding    of

Gathercole’s guilt beyond a reasonable doubt.

        After the first day of testimony (February 4), the court reminded

the jury to “stay away from any media accounts that there may be

regarding this case.” After the second day of testimony (February 5), the

court similarly reminded the jury to “stay away from any media accounts

of this case, and be mindful of all the rest of the admonition I gave to

you.”

        On February 6, the parties presented closing statements. Again,

the State focused on Rottmiller’s testimony identifying Gathercole as the

perpetrator.     Gathercole’s closing statement emphasized the lack of

physical evidence connecting him to the crime scene and the possibility

Rottmiller’s perception and memory were impaired by trauma.                  The

district court then instructed the jury and deliberations began.
                                    5

      As deliberations continued into the morning of February 7,

Gathercole moved for a mistrial or, alternatively, a poll of the jurors

about their possible exposure to a factually inaccurate media account of

the case. While browsing the website of the Cedar Rapids Gazette (the

Gazette) that morning, defense counsel had discovered an article about

this case published on or last modified in the afternoon of February 5.

The article’s headline was “Police try to explain lack of crime scene

evidence in a stabbing.” The second paragraph of the article stated crime

scene investigators had matched a palm print found on Rottmiller’s truck

to Gathercole. Additionally, a sentence near the end of the article stated

the palm print was “the only piece of physical evidence that ties

Gathercole to the scene.” Both sentences were factually incorrect. As

opening statements, trial testimony, and closing arguments established,

the palm print actually matched Rottmiller—which was unsurprising

because he owned the truck.

      The record does not reveal how many page views the article had

accrued prior to Gathercole’s motion, how prominently the Gazette

website featured it, or whether an internet reader could access the entire

story without specifically clicking on the headline. The record also does

not disclose whether the article appeared in the print version of the

Gazette—and if it did, the specific section and page where the article

appeared. Furthermore, the record does not tell us whether the article or

its content was syndicated for distribution or actually distributed

through other media platforms or publications that might have wider

readership or exposure than the Gazette alone.      However, the printed

copy of the web page version of the article introduced into evidence

shows some modest social media interaction had occurred.            Three

unidentified website visitors had “liked” the article on Facebook, two had
                                         6

shared a link to the article on Twitter, and three had otherwise shared

the article via email or social media.

      Gathercole asserted the Gazette article was prejudicial because it

misstated the evidence and struck at the heart of his defense: The State

presented no physical evidence connecting him to the crime scene.

Gathercole acknowledged the court had admonished the jury to avoid

media reports but expressed concern that any juror who read or heard

about the misinformation in the article might have become confused and

believed they either misheard or misunderstood the evidence presented

in court. He further asserted that if one or more jurors read the article,

believed it, and relied on it during deliberations, such conduct deprived

him of his right to a fair trial and required a mistrial. In the alternative,

Gathercole asserted the possible prejudice from the article at least

required a jury poll probing whether any jurors had seen the article or

read the factual misstatement.

      The State resisted both motions, contending there was no reason

to suspect any juror had violated the court’s clear admonition to avoid

media reports. See Bigley, 202 N.W.2d at 57 (concluding the defendant

received a fair trial in part because “[t]here was no reason . . . to believe

jurors had violated [the] court’s admonition”). The State contended the

court should trust that jurors followed the court’s instructions and serial

admonitions.    The State further cautioned that it believed the court

should be very reluctant to interrupt the jury’s ongoing deliberations.

      The district court denied the motion for mistrial. The court agreed

the article was factually inaccurate but credited several circumstances

tending to prove the article had not prejudiced Gathercole. First, while

the article misstated the evidence, it did not contain facts that were

otherwise inadmissible—for example, evidence excluded under Iowa Rule
                                     7

of Evidence 5.404(b). Second, the court noted, the factual misstatement

appeared in the article’s text, not as part of the headline. Third, no juror

had approached any court staff to reveal he or she had seen or read the

article. Fourth, the court had issued a stern admonition on the first day

of trial and repeatedly referred to it before each day’s recess—including

specific reminders to avoid media accounts of the trial.       Finally, the

parties did not dispute that the palm print found on the truck matched

Rottmiller—not Gathercole; thus, the article’s misstatement did not

create a risk that the jury would use the information to resolve a factual

dispute in the State’s favor.

      The court also denied the alternative motion to poll the jury. The

court expressed concern that polling the jury might perversely call

attention to the issue and stated it was loath to interrupt the jury’s

deliberations. The court expressed willingness to reconsider or enlarge

its ruling on the jury-polling question if either party filed an appropriate

motion with a supplemental brief containing supportive authority.

Neither party filed a supplemental motion or brief.

      The jury ultimately convicted Gathercole on all three charged

counts. Gathercole did not renew his motion to poll the jury after the

verdict, nor did he file a motion asserting the court’s refusal to poll as a

ground for a new trial. At sentencing, the court merged the willful injury

conviction with the robbery conviction and sentenced Gathercole to

consecutive twenty-five-year terms for attempted murder and robbery.

See State v. Hickman, 623 N.W.2d 847, 852 (Iowa 2001) (concluding

willful injury and first-degree robbery must merge).

      Gathercole appealed, contending the evidence was insufficient to

convict him and the court should have declared a mistrial or at least

polled the jury after counsel brought the factually inaccurate Gazette
                                     8

article to the court’s attention. We transferred the case to the court of

appeals. The court of appeals affirmed Gathercole’s conviction, finding

the evidence sufficient and concluding the inaccurate Gazette article did

not raise serious questions of possible prejudice under Bigley.        See

Bigley, 202 N.W.2d at 58 (adopting a standard that provides if “material

disseminated during the trial goes beyond the record” and “raises serious

questions of possible prejudice, the court . . . shall on motion of either

party question each juror, out of the presence of the others, about his [or

her] exposure to that material” (quoting ABA Standards Relating to Fair

Trial & Free Press 3.5(f) (Am. Bar Ass’n 1968))).      Gathercole sought

further review, and we granted his application to explore in more detail

the circumstances when midtrial publicity raises serious questions of

possible prejudice.      “Of necessity, this question is a complex one.”

United States v. Herring, 568 F.2d 1099, 1104 (5th Cir. 1978).

      II. Scope of Review.

      We review the district court’s refusal to grant a mistrial for an

abuse of discretion.     State v. Marr, 316 N.W.2d 176, 181 (Iowa 1982).

The parties disagree, however, about the proper scope of review for the

jury-polling question.     Gathercole urges de novo review, see State v.

Holly, 201 P.3d 844, 851 n.3 (N.M. 2009), while the State contends the

abuse-of-discretion standard applies.

      We agree with the State. Although the Bigley standard creates a

mandatory duty to poll by using the word “shall,” see State v. Frank, 298

N.W.2d 324, 327 (Iowa 1980), the duty only arises if the publicity raises

serious questions of possible prejudice, see Bigley, 202 N.W.2d at 57–58.

“The determination whether the publicity is so prejudicial that further

inquiry is necessary is within the trial court’s discretion.”    Brown v.

State, 601 P.2d 221, 232 n.28 (Alaska 1979); accord Marr, 316 N.W.2d at
                                      9

181; Frank, 298 N.W.2d at 327; State v. Jones, 511 N.W.2d 400, 408

(Iowa Ct. App. 1993). Accordingly, we review the district court’s refusal

to poll for an abuse of discretion.

       III. Analysis.

       Exercising our discretion to select the issues addressed on further

review, we let the court of appeals decision stand as to Gathercole’s

sufficiency-of-the-evidence challenge and proceed directly to the midtrial

publicity question. See Iowa R. App. P. 6.1103(1)(d); State v. Rooney, 862

N.W.2d 367, 370–71 (Iowa 2015).

       The court of appeals concluded the Bigley standard contains both

a qualitative component and a quantitative component. In other words,

midtrial publicity only raises serious questions of possible prejudice if

the information is outside the record, might invite the jury to decide the

case on an improper basis, and likely reached one or more jurors. On

further review, Gathercole contests that formulation.       He asserts the

Bigley standard contains no quantitative component, or if it does, it

merely requires a showing that the risk of juror exposure is more than

de minimis.

       A.   Iowa Precedents. In Bigley, “a newspaper article about the

case . . . appeared on the third day of trial” on the sixth page of the local

newspaper. Bigley, 202 N.W.2d at 56. The article

       was quite detailed and substantially factual. However, it
       noted defendant had previously pleaded guilty to the charge,
       was given probation, breached probation, was incarcerated,
       and then won his right to trial because of irregularities in
       connection with his guilty plea.

Id.   The trial court denied Bigley’s motion for mistrial or jury polling

because it had admonished the jury to avoid news accounts of the trial

and found no evidence any juror had violated the admonition. Id. We
                                         10

affirmed on the same basis, but we adopted prospectively “workable

guidelines” recommended by the American Bar Association (ABA) for

resolving claims of prejudice arising from extra-record publicity occurring

during trial. Id. at 58. The relevant ABA guideline extant at the time of

the Bigley trial provided that if

       material disseminated during the trial goes beyond the
       record on which the case is to be submitted to the jury and
       raises serious questions of possible prejudice, the court may
       on its own motion or shall on motion of either party question
       each juror, out of the presence of the others, about his
       exposure to that material.

Id. (quoting ABA Standards Relating to Fair Trial & Free Press 3.5(f)).1

We did not elaborate in Bigley on the definition of “serious questions of

possible prejudice.” See id.

       We again confronted the problem of midtrial publicity in Frank,

where local newspapers had published several stories during a lengthy

continuance in the trial.       See Frank, 298 N.W.2d at 326.            The stories

referred repeatedly to witnesses who had left Iowa but were subpoenaed

to return and stated the witnesses had key testimony that was important

to the State’s case. Id. Frank did not request a jury poll but asserted on

appeal that the trial court should have polled the jury sua sponte


       1Since Bigley, the ABA has revised Standard 3.5(f). The relevant language now
appearing in standard 8-5.5(d) reads:
       If, during the trial, the court determines that information has been
       disseminated or otherwise made publicly available that goes beyond the
       record on which the case is to be submitted to the jury and raises
       serious questions of prejudice, the court may on its own motion or on the
       motion of either party question each juror, out of the presence of the
       others, about exposure to that information.
ABA Criminal Justice Standards on Fair Trial & Free Press 8-5.5(d),
www.americanbar.org/groups/criminal_justice/standards/crimjust_standards_fairtrial
_blk.html. Because neither party asserts we should modify Bigley, we leave for another
day the question whether to adopt the revised ABA standard.
                                          11

because the published articles’ myopic focus on the missing witnesses

prejudiced her defense. See id. at 327. We concluded “the number and

contents” of the articles were not “of sufficient magnitude to establish a

substantial likelihood of probable jury prejudice” rendering the district

court’s decision not to poll the jury an abuse of discretion.                  Id.   We

declined to find prejudice “from the mere publication or broadcast of

news stories” unless there is “evidence of jury exposure to trial publicity.”

Id. at 327–28. 2

       In Marr, a newspaper article containing numerous factual errors

appeared after the jury was empaneled but before any trial testimony

was received. Marr, 316 N.W.2d at 180. The district court conducted a

jury poll upon request but, satisfied that the jurors who had read the

article could remain impartial, denied the defendant’s motion for

mistrial. See id. We found no abuse of discretion in that ruling because

“[a]lthough the article was factually inaccurate . . . , it alone d[id] not rise

to the level of pervasive and inflammatory publicity denying the

defendant” a fair trial. Id. at 181.

       The question in this case is a logical extrapolation from Marr:

When does factually inaccurate midtrial publicity endanger a trial’s

fairness and require the court to poll the jury upon request? Two United

States    Circuit    Courts     of   Appeals     have     concluded      an    isolated

misstatement in a published press report did not present a significant

danger of prejudice. See Booton v. Hanauer, 541 F.2d 296, 298 (1st Cir.

1976) (concluding a trial judge did not err in failing to poll the jury when

       2Several years later, the court of appeals concluded counsel’s decision not to
request a jury poll did not constitute ineffective assistance. Frank v. State, 376 N.W.2d
637, 641 (Iowa Ct. App. 1985). Frank’s federal habeas corpus petition asserting the
same ground was also unsuccessful. Frank v. Brookhart, 877 F.2d 671, 674–75 (8th
Cir. 1989).
                                    12

requested because the article published during trial “was inaccurate, but

. . . not substantially misleading”); United States v. McGann, 431 F.2d

1104, 1109 (5th Cir. 1970) (concluding a trial judge correctly declined to

examine the jury because the factual misstatements “were not of a

substantial nature”). The difficulty comes, of course, in determining how

substantial a published inaccuracy must be to raise serious questions of

possible prejudice requiring jury polling upon request. As one court has

noted, “The cases have given less attention to drawing the line between

what is prejudicial publicity and what is not.” United States v. Hyde, 448

F.2d 815, 849 (5th Cir. 1971).

      B.   The Qualitative Component.       The parties agree the Bigley

standard includes a qualitative component.         Factors informing the

qualitative analysis include “how closely related the publicity is to the

case” and the tone the article, post, or broadcast displays. Brown, 601

P.2d at 232; see also Herring, 568 F.2d at 1104–05 (considering the

publicity’s effect on any defenses); Harper v. People, 817 P.2d 77, 84

(Colo. 1991) (en banc); Holly, 201 P.3d at 849–50. As the Herring court

summarized,

      The court should consider how closely related to the case the
      material is.   In this connection, the court should also
      examine the nature of the defenses raised in order to weigh
      the effects of the publicity on those defenses. Another
      important consideration is . . . . [whether the] material . . .
      not only recounts facts outside the record but also
      speculates directly on a defendant’s guilt or innocence.

Herring, 568 F.2d at 1104 (footnotes omitted).

      C.   The Quantitative Component.        While the parties agree the

Bigley standard requires a qualitative analysis of the claimed prejudice,

they do not agree on the question whether the court must also consider a

quantitative component.    Many cases applying the ABA standard we
                                    13

adopted in Bigley evaluate the likelihood that the midtrial publicity

reached the jury. See, e.g., id. at 1104–05; Harper, 817 P.2d at 84; Holly,

201 P.3d at 849–50.     Courts confronting factually inaccurate midtrial

publicity—but not specifically applying the ABA standard—have done so

as well.   See, e.g., Brown, 601 P.2d at 232 (concluding the prejudice

determination includes a consideration of “the likelihood that the jury

was exposed” to the publicity); Lindsey v. State, 295 N.E.2d 819, 824

(Ind. 1973) (noting the court should consider “the content of the

publication and the likelihood of its having come to the attention of any

juror”); State v. West, 350 N.W.2d 512, 519 (Neb. 1984) (stating broadly

that the prejudice determination “is to be resolved by the trial court on

the basis of an independent examination of all the circumstances”). We

concur with these courts that have concluded the determination of

whether the factually inaccurate midtrial publication raises serious

questions of possible prejudice must consider quantitative factors such

as frequency or extent of coverage, Holly, 201 P.3d at 849, and relative

prominence or obscurity, Brown, 601 P.2d at 232. Courts assessing the

possible prejudice arising from the midtrial publication of inaccurate

information and the need for a jury poll should also consider

      the nature of the trial judge’s previous instructions on the
      matter. Has the court told the jury not merely to disregard
      but not to examine at all any external information on the
      case, especially that which appears in the news media? Has
      the court so instructed the jury on a regular basis, and how
      much time has elapsed since the court’s last directive and
      the dissemination of the material in question?

Herring, 568 F.2d at 1105; accord Holly, 201 P.3d at 849. Finally, courts

should consider the publisher or broadcaster’s reputation or standing—

in other words, its credibility. Cf. Williams v. Griswald, 743 F.2d 1533,

1539 (11th Cir. 1984) (concluding jurors could not reasonably think
                                   14

midtrial publicity was credible after the trial judge expressly admonished

them that it was false).

      Prominence of the published inaccuracy is a multifaceted inquiry

evaluating not only the publication’s prominence in the community, but

also the article’s prominence within the publication. One court refers to

this consideration as “conspicuousness.”    See Holly, 201 P.3d at 849.

Depending upon the publication, a particular article within it could be so

conspicuous as to create a strong likelihood that the jurors encountered

the information. See, e.g., United States v. Aragon, 962 F.2d 439, 445 &

n.9 (5th Cir. 1992) (concluding midtrial publicity likely reached the jury

when it “appeared in the front page of the Metro section of the most

widely circulated local paper” and “newspaper vending machines

surrounded the courthouse”); Herring, 568 F.2d at 1103 (“[T]he

headlines, photograph, and article appeared on the front page of Macon’s

leading morning newspaper.”); United States v. Lord, 565 F.2d 831, 838

(2d Cir. 1977) (“The widespread availability of the newspapers as well as

the prominent position occupied by the articles[] created a strong

possibility that some jurors might have been exposed . . . .” (Footnote

omitted.)); Harper, 817 P.2d at 85 (“The article appeared during the

second day of trial in the local newspaper of [Grand Junction, Colorado,]

a relatively small city.”); Holly, 201 P.3d at 850 (“[T]he article was

prominently featured on the front page of a local newspaper in

[Alamogordo, New Mexico,] a small community.”).

      But the facts may also indicate the publicity was obscure or

hidden enough as to make it unlikely the jurors encountered it. In other

words, the information may not be conspicuous even if the publication is

prominent. See, e.g., United States v. Bermea, 30 F.3d 1539, 1558 (5th

Cir. 1994) (concluding the likelihood the material reached the jury was
                                     15

low because the allegedly prejudicial portion was “only three short

paragraphs in the middle of a longer article”); Williams, 743 F.2d at 1539

(“The entire story was composed of only eight sentences and appeared

once on an inside page of a local newspaper.”); United States v. Goodman,

605 F.2d 870, 883 (5th Cir. 1979) (“[The article] appeared . . . at the

bottom of an inside page of the business and sports section under the

over-the-counter stock market quotations.”); State v. Mucha, 47 A.3d

931, 940 (Conn. App. Ct. 2012) (noting prejudicial content “appeared in

the final three paragraphs of the article on an inner page of the

newspaper where a conscientious juror . . . would not come upon it

easily”). As the Connecticut Appellate Court explained,

      A notorious article, prominently displayed in a local
      newspaper with a blaring headline, a boxed quotation or an
      accompanying photograph stating or displaying prejudicial
      information about a case might raise the possibility of juror
      exposure . . . at least to the point of requiring further judicial
      inquiry, regardless of whether the jury was instructed to
      avoid media coverage. In this case, however, . . . where the
      prejudicial content of the article was not so overtly and
      conspicuously published, there is no reason to believe that a
      diligent juror, attempting to follow the court’s instructions to
      avoid all media coverage of the case, would ever be exposed
      to it.

Mucha, 47 A.3d at 940–41.

      Prominence can also work in tandem with the credibility of the

publisher. To assess credibility in this context, the court must consider

both the publisher’s credibility and the specific information’s credibility.

For example, a tabloid might be prominent but notoriously not credible.

A single blog post from a blog with few readers or a public tweet from an

account with few followers will present less risk of serious prejudice as

well, because those sources are neither prominent nor necessarily

credible. Furthermore, evaluating both the publication generally and the
                                    16

specific information reduces the likelihood that midtrial publicity caused

prejudice, even if it reached jurors, where the inaccurate statement was

obviously inaccurate.   See, e.g., State v. Williams, 105 N.W. 265, 270

(Minn. 1905) (concluding that although an article’s “comments upon the

manner and appearance of the defendant” were unfair, there was not

enough possible prejudice to require a new trial because “the comments

related to matters occurring in the presence of the jury, who were in a

position to verify them”); West, 350 N.W.2d at 519 (finding no likelihood

of prejudice from inaccurate information about the defendant’s blood

alcohol concentration because “[o]bviously, the decimal points . . . were

in the wrong place” and any juror would know the information was

wrong); State v. Lagerquist, 180 S.E.2d 882, 885 (S.C. 1971) (“[I]f any

member of the jury read [the article] he could not help but detect that the

writer had described the charges erroneously.”).

      Lastly, prominence of the published information can work in

tandem with frequency.      Midtrial publicity that appears repeatedly,

appears in multiple publications, is both printed and broadcast, or is

shared widely on social media more likely reaches the jury than publicity

disseminated only through one channel, method, or medium. See People

v. Crowder, 425 N.E.2d 994, 1001 (Ill. App. Ct. 1981) (concluding the

trial court should have conducted a jury poll in part because the

potentially prejudicial material “appeared in two of Rockford’s daily

papers”); People v. Weaver, 412 N.E.2d 1353, 1361 (Ill. App. Ct. 1980)

(“[T]he potential for undue prejudice was great, and was significantly

enhanced by the fact that the publicity complained of appeared not only

in a local suburban paper . . . , but in city papers, and on major

television and radio networks.”).
                                     17

      D.    Applying the Factors.         We acknowledge that “in many

instances it would be impossible for a defendant to show actual juror

exposure . . . without a direct inquiry of the jurors themselves.” State v.

Williams, 305 S.E.2d 251, 261 (W. Va. 1983). Our quantitative standard

on jury polling therefore evaluates the likelihood that information

reached the jury rather than proof the jury was actually exposed to it.

See id. at 261 n.5; see also Harper, 817 P.2d at 82 (“[R]equiring

independent evidence of the jury’s exposure to outside information as a

prerequisite to polling the jury fails to acknowledge the significant

obstacles to obtaining such evidence.”); State v. Varner, 643 N.W.2d 298,

304 (Minn. 2002) (concluding a trial court “applied the wrong standard”

when it “was not focused on . . . serious questions of possible prejudice,

but rather on whether jurors . . . were actually prejudiced”); State v.

Clark, 675 P.2d 557, 560 (Utah 1983) (“[W]here the publicity takes place

during the trial, the defendant cannot ever show actual exposure or

prejudicial effect unless the court allows the jury to be polled.”).

Likelihood in this context means “there is a realistic possibility that [the]

information may have reached one or more of the jurors.” State v. Bey,

548 A.2d 846, 867 (N.J. 1988).

      We turn first to an analysis of the qualitative factors.           The

inaccurate information published in the Gazette article during the trial

was directly related to the State’s burden of proof and Gathercole’s

defense. Although the content of the article purporting to report on the

State’s evidence while the trial was underway was false and inconsistent

with Gathercole’s defense, we find it unlikely that any juror who read the

misstatement would have credited it.      The State’s evidence established

that the only palm print lifted from Rottmiller’s vehicle was Rottmiller’s.

The prosecutor confirmed this in his opening statement and in his
                                        18

closing argument, repeatedly informing the jurors that the State

produced no physical evidence connecting Gathercole to the crime scene.

The Gazette article was neither opinion-laden nor inflammatory in tone.

Thus, the qualitative factors in our analysis do not lead us toward a

conclusion that Gathercole established serious questions of possible

prejudice arose from the Gazette article.

        The quantitative factors are not supportive of Gathercole’s position

either.     The Gazette is the most prominent news publication in Cedar

Rapids. Yet, the record does not reveal whether the article in question

was featured conspicuously on the Gazette’s website, whether a

significant number of website visitors viewed it, or whether (and if so,

where) it appeared in print.        The limited information in the record

discloses only minimal social media interaction by a handful of website

visitors.    Additionally, as the district court noted, the Gazette article’s

misstatement did not appear in the headline.            We acknowledge the

headline would not necessarily have alerted a juror that the article was

about this case, because it did not use Gathercole or Rottmiller’s name.

Thus, it is conceivable that a juror could have begun reading the article

without realizing its connection to their jury service. However, a juror

who clicked on the article and who was conscientious about the court’s

admonitions would likely have stopped reading as soon as they

encountered Rottmiller’s name—which appears before any mention of the

palm print. See Mucha, 47 A.3d at 940 (doubting that a conscientious

juror     would   come    upon    the   potentially   objectionable   material

inadvertently because it was in the final three paragraphs of an article on

an inner page of the newspaper); State v. Johnson, 41 So. 3d 1188, 1204

(La. Ct. App. 2010) (describing a juror who saw a bland headline and

began reading but stopped when he encountered information he
                                     19

recognized from trial).    Furthermore, the court’s admonition directed

jurors to avoid media reports—not just to disregard them—and the court

gave a renewed warning, including a specific mention of media,

immediately before recessing the jury on the afternoon the article

appeared.

        In one federal case examining midtrial publicity, the court noted

“the jurors had not been forbidden to read all newspapers—only

accounts of the trial,” so the fact jurors had been seen reading the

newspaper in which midtrial publicity appeared weighed in favor of at

least a realistic possibility the jurors had come across the potentially

prejudicial material. United States v. Thompson, 908 F.2d 648, 652 (10th

Cir. 1990). The district court’s admonitions in this case were similarly

limited.   The court did not admonish jurors to avoid news altogether,

only “news accounts of this trial,” whatever form they might take.

However, the record in this case does not reveal whether, as in

Thompson, any juror read any part of the February 5 Gazette online or

print edition. We decline to speculate on this record that they did.

        The record in this case does not demonstrate a realistic possibility

that the challenged information reached the jury.             We conclude

Gathercole did not establish the Gazette article raised serious questions

of possible prejudice and the district court therefore did not abuse its

discretion in denying the motions for mistrial and jury polling.        Our

confidence in this conclusion is strengthened by Gathercole’s failure to

(1) submit a supplemental motion or brief regarding midtrial publicity

despite the court’s invitation, (2) renew his request for a jury poll after

the verdict but before the court dismissed the jury, or (3) make any

posttrial motion supported by evidence the Gazette article reached the

jury.
                                    20

      Although the district court did not abuse its discretion in this case,
we encourage courts to resolve doubts about whether information
published midtrial requires a poll requested by a party in favor of
granting a poll. See, e.g., Harper, 817 P.2d at 84; State v. Keliiholokai,
569 P.2d 891, 894 (Haw. 1977) (suggesting inquiry is proper where “the
probabilities of prejudice are not clearly evident and it is not known
whether the jurors have been exposed”); Bey, 548 A.2d at 869 (noting “a
court might properly choose to err on the side of caution when ruling on”
motions to poll the jury, preferring the “prophylactic” measure of polling
to uncover prejudice—or confirm its absence—“before ordering a new
trial has become the only option”). Although one court has suggested a
jury poll during a trial might be less than a perfect means of discerning
the nature and extent of prejudice, if any, resulting from factually
inaccurate midtrial publicity, “it at least gives some suggestion as to
whether the verdict was tainted with improper consideration and
improper influences.” People v. Cox, 220 N.E.2d 7, 9 (Ill. App. Ct. 1966).
      E.    Jury Admonition or Instruction.          Lastly, we take this
opportunity to recommend that district courts supplement their jury
admonitions and instructions to accommodate technological progress
and the danger it can pose to fair and impartial trials. See Webster, 865
N.W.2d at 240–41 (recommending a jury admonition that specifically
targets social media use leading to possible juror misconduct claims). As
we did in Webster, we refer to the United States Judicial Conference
Committee    on    Court   Administration     and    Case    Management’s
recommended jury instructions as a possible guide for Iowa judges. See
id. One of the recommended instructions states, in part,

            You may not use . . . electronic means to investigate or
      communicate about the case because it is important that
      you decide this case based solely on the evidence presented
      in this courtroom. Information on the internet or available
      through social media might be wrong, incomplete, or
                                     21
      inaccurate. You are only permitted to discuss the case with
      your fellow jurors during deliberations because they have
      seen and heard the same evidence you have. In our judicial
      system, it is important that you are not influenced by
      anything or anyone outside of this courtroom. Otherwise,
      your decision may be based on information known only by
      you and not your fellow jurors or the parties in the case.
      This would unfairly and adversely impact the judicial
      process.

Judicial Conference Comm. on Ct. Admin. & Case Mgmt., U.S. Cts.,
Proposed Model Jury Instructions: The Use of Electronic Technology to
Conduct   Research      on   or   Communicate   about   a    Case   (2012),
www.uscourts.gov/file/3159.
      A Florida judge has suggested a similar instruction:

            It is important that you follow my court orders. If you
      gather information on your own, you may then make
      decisions with information that is different from information
      considered by all the other jurors. Your information and
      research may simply be wrong, inaccurate, or incomplete.
      Locations may change. The lawyers would have no method
      of knowing what research or information you have
      considered. The lawyers would be unable then to question
      or rebut your research or information. The law prohibits
      jurors from considering information that may be irrelevant or
      prejudicial to a party.

            If you violate my order by communicating on social
      media sites or conducting research, you may cause a
      mistrial. A mistrial wastes your money as a taxpayer and
      causes the entire trial to begin anew regardless of how far we
      have come in the trial when your misconduct is discovered.
      A mistrial unfairly delays justice to the parties and wastes
      everyone’s time, including the time of the judge, the
      attorneys, the parties, the witnesses, and your fellow jurors.

            ....

            While you may feel that the judge and the attorneys
      are hiding information from you, it is important that the
      judge decide which information should be provided to jurors
      to maintain fair proceedings for all parties and to maintain
      the integrity of the courts.

Antoinette Plogstedt, E-Jurors: A View from the Bench, 61 Clev. St. L.
Rev. 597, 648 (2013).
                                    22

      Both instructions we quote here are adaptable for use in Iowa and
can be adjusted to accommodate factual scenarios like the one
presented in this case. For example, an instruction or admonition might
target affirmative research and inadvertent discovery of information
outside the trial record, emphasizing that information obtained either
way could be wrong or inaccurate.         We encourage courts to add
references to electronic media to their existing media admonitions. By
acknowledging and anticipating jurors’ use of technology, district courts
“will minimize the risk of unnecessary and costly mistrials due to the
failure of jurors to . . . understand [clearly] their obligations in the
electronic world.” Webster, 865 N.W.2d at 241.
      IV. Conclusion.
      Under the Bigley standard, courts must poll the jury about
exposure to midtrial publicity only if the material raises serious
questions of possible prejudice.    In determining whether information
raises serious questions of possible prejudice, judges should consider
both qualitative and quantitative factors.   Applying those factors, we
conclude on this record that the factually inaccurate Gazette article
appearing online during Gathercole’s trial did not raise serious
questions of possible prejudice. The evidence presented at trial clearly
contradicted the article, and the jury knew it could only consider
evidence presented in court.    Furthermore, there was not a realistic
possibility the article reached the jury. Accordingly, the district court
did not abuse its discretion in denying Gathercole’s motion for a mistrial
and alternative motion to poll the jury.         We affirm Gathercole’s
convictions.
      COURT     OF   APPEALS     DECISION     AND    DISTRICT     COURT
JUDGMENT AFFIRMED.
