The scene: The Lucas County Court of Common Pleas, Toledo, Ohio
Not the actual jury in this case
The event: A felony jury trial.
The case: State of Ohio v. Rodney J. Bunce
The charges: Aggravated Murder and Aggravated Robbery
The jury: Asleep
The verdict: Guilty
What was that? The next to last one. Come again?
OK, I exaggerate. The entire jury wasn't asleep (at least as far as we know). Just one (or maybe two) of the jurors. And maybe only through part of the trial.
So, you know, no big deal. Hell, Bunce's trial lawyer didn't notice (or, I suppose, didn't care). The judge did admonish the jurors to pay attention, and made some comment at sentencing about sleeping jurors. But really.
We've seen this sort of thing before. More often, really, than you might imagine.
Real trials aren't like television. They are, in fact, mostly boring with the boredom interrupted by occasional moments of tedium. Oh, there's plenty of drama in the situation, and there really can be moments of high tension, even excitement. Sometimes something funny happens. But really, it's mostly a story told in snippets interrupted by prosecutors asking their favored question.
And then what happened?
Documents are shown to witnesses ("Yes, I recognize that as a copy of my telephone bill from March 2006"). People point things out on diagrams ("The living room is this one, over here"). The crime scene cops explain what they did. ("I placed a marker next to each of the shell casings so I would be sure to get them all and then took a photograph of each of the casings.")
Cross-examinations are rarely withering. Nobody confesses on the witness stand. Defense counsel is dismantling the prosecutor's case in snippets, working to get a fact here and discredit an odd fact there, to bring it all together in a closing argument.
The closing arguments themselves, as likely as not, will be fumbling and inarticulate with a lot of big words that none of the jurors really understand (and that maybe the lawyers don't, either).
And the jury instructions, don't get me started on them.
So I guess it's not surprising that a juror might be inclined to nod off now and again. Certainly lawyers have.
In fact, I've written about it before. I called that post "Resting Up" (which I thought was pretty clever at the time, though it strikes me as less so, now). Anyway, in that post I spoke about death penalty cases where defense counsel slept through the trial and one in Cleveland where a juror did. I was struck then, and commented, on the essentially dismissive responses of the judges in the case.
So, for instance, Judge Kathleen Sutula of the Cuyahoga County (that's Cleveland) Court of Common Pleas said to counsel who complained about the sleeping juror,
I saw it. So what. Let him sleep. You guys picked this jury, I didn't.
The defendant in that case, Arif Majid, appealed. Ohio's Eighth District Court of Appeals reversed Majid's conviction holding that the judge had an obligation to do something about the sleeping juror and that the trial was tainted. (Alas, it was only a 2-1 decision.)
Oh, if only Rodney Bunce were in the Eighth Appellate District. Unfortunately, he's in the Sixth. This morning, a three-judge panel of that court said, unanimously,
Close enough for government work.
Oh, that's not how they phrased it. And it's true that Majid's lawyers were bothered by the sleeping juror and the judge blew them off. But still.
Because you know, if the juror's asleep, the evidence just doesn't get heard. And what isn't heard isn't considered.
And there's that whole thing about trust in the integrity of the system.
But then there's also that part about finality trumping fairness.