I was sent this story today by some listserver, (I can't keep up with all the stuff I get anymore), and I couldn't help but doing a double-take. Sleeping jurors aren't a reason to appeal? I thought for sure that I must have misread that, so I read it again and this time I was sure I got it right:
The Appellate Division rejected the argument that the defendant was entitled to jurors who have heard all the evidence.
Um, excuse me? A defendant is not entitled to jurors who have heard all of the evidence? I mean, I know some evidence can be kept out of the courtroom, but what about the evidence that is allowed? Shouldn't Due Process include not only jurors, but jurors that are awake? I mean, if they don't have to be conscious, are they actually performing any function at all?
The Appellate Division also had this to say:
Feinberg took "proper remedial measures" by opening the windows after surveying the jury. Further, since defense counsel did not request anything more at the time, the issue could not be raised on appeal.
Ok, so this looks like might have been procedural error on the part of the lawyer, maybe he should have asked for a mistrial at this point. The statistics that followed, however, made me side with the argument of defense's counsel that "a sleeping juror is per se a structural error not amenable to harmless error review":
Sleeping jurors are not uncommon. A 1996 survey of state and federal judges by Vanderbilt Law Professor Nancy King found that 69 percent of the 562 respondents had seen at least one in an estimated 2,300 cases during the preceding three years.
Now we know why they don't want to remove it from harmless error review, it is too common! Maybe we need to hire someone to monitor the jurors (maybe we need to poke them with a stick during trial if necessary). If they are sleeping, I don't think they should be making decisions that can affect another human for the rest of their life. I've just spent days on end in discussion of how one of the policy goals of the court system is to reach a "just" result. Is this just?
All you lawyers out there that disagree with me think about this hypothetical. Imagine that you are presenting oral argument to a judge in a case without a jury. You realize that the judge has fallen asleep during your opponents direct examination of a witness that you believe is lying on the stand. You say, "Hey judge, I think you should be awake to listen to this", and the judge decided he doesn't need to. He opens a window and allows the case to continue without ever revisiting that testimony.
Are you ok with that? I'm not, and I'm sure anyone who has ever been convicted, (or lost a case), due to sleeping jurors isn't. Not only do I think there should be a right of appeal if a juror sleeps through evidence, but I think that the juror should be found in contempt of court.