Zzzzzzzzzzzzzzz

Not the actual jury in this case

The scene: The Lucas County Court of Common Pleas, Toledo, Ohio
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.

Sigh.

Resting up

What is it with these folks who snooze at death penalty trials? Sure, the trials aren't like TV dramas. They're slow and often boring with a lot of not terribly articulate folks speaking in great detail about matters of what can seem like stultifying trivia. ("Patrolman Smith handed me the bag, I signed my name to the chain-of-custody slip attached to it, signed it right below what looked like Smith's name, then I carried it to the property room and gave it to Sergeant Jones who I watched sign the slip and then put the envelope in the safe." That sort of thing, which can go on for four or five witnesses and take the better part of an hour in some cases.)

But still. Sleeping?

I want to talk about Calvin Burdine and Joe Frank Canon and George McFarland and John Benn. I want to talk about Arif Majid and Juror No. 1. And I want, especially, to talk about Judge Doug Shaver and Judge Kathleen Sutula.

Burdine and McFarland ended up on death row after their lawyers (Canon and Benn) slept through substantial portions of their trial. Both cases were tried before Judge Shaver in Houston, Texas, who explained to a reporter, in the context of McFarland's case that

The Constitution says everyone's entitled to the lawyer of their choice, and Mr. Benn was their choice. The Constitution doesn't say the lawyer has to be awake.

Shaver can't have been too surprised by Benn's sleeping. According to an article in the Los Angeles Times in July 2000, Shaver explained,

"I knew John Benn. I knew he wasn't competent," Shaver said in a courthouse interview in late June. The judge said Benn had the appearance of "a heavy drinker. . . . His clothes looked like he slept in them. He was very red-faced; he had protruding veins in his nose and watery red eyes. . . . I can't imagine anyone hiring him for a serious case."

Benn himself said,

I'm 72 years old. I customarily take a short nap in the afternoon.

After years of struggling, Burdine got a federal judge to agree that when your lawyer sleeps through your trial, it's like you had no lawyer at all and you're entitled to a new trial. Although a panel of the Sixth Circuit disagreed, the entire court ultimately overruled them in a 9-5 vote.

So far, McFarland hasn't been so lucky.

That extra lawyer may have made a crucial difference. Although he was young, and specifically appointed to assist Benn, not replace him, he ended up trying almost the whole case by himself. And though he made some efforts to wake Benn, he eventually gave up the effort to concentrate on the trial.

But the Texas Courts have said that no matter what Benn did, McFarland had that other excellent lawyer, and that's enough. In fact, he may actually have wanted Benn to sleep:

We might also view Melamed's decision to allow Benn to sleep as a strategic move on his part. At the new trial hearing, Melamed stated that he believed that the jury might have sympathy for appellant because of Benn's "naps."

So, at least, said the Texas Court of Criminal Appeals.

McFarland sits on death row in Texas. The federal courts are next for him.

Arif Majid has a different story. His lawyer didn't sleep through his death penalty trial (he got life) - Juror No. 1 did. Judge Sutula, who tried the case, knew it but did nothing about it. Let's consider the difference, for a moment, between a sleeping lawyer and a sleeping juror.

The sleeping lawyer cannot make decisions about the evidence. He can't decide to object or not. He can't decide whether to cross-examine based on what a witness said, because he doesn't know what the witness said. He is, in every meaningful respect, not present. The sleeping lawyer makes an unfair trial because the adversary system under which we operate collapses. There's just a one-sided presentation. The trial shouldn't count because it wasn't fair.

A sleeping juror isn't listening to the evidence. He cannot weigh it because he doesn't know what it was. He cannot decide whether the witness is lying or telling the truth or maybe just confused because he never observed the witness. His vote is a coin toss and his verdict shouldn't count because it can't have properly been voted by the juror who, in effect, might as well have stayed home.

They didn't put it that way, but that's what the Eighth District Court of Appeals said last week. And good for them. But here's what the Judge Sutula, who tried the case, said.

I saw it. So what. Let him sleep. You guys picked this jury, I didn’t.

Got that?

One judge thinks your right to a lawyer is satisfied even if the lawyer sleeps through the trial. Another judge thinks its OK if the jury sleeps through the trial.

I don't know either Judge Shaver or Judge Sutula. In fact, you now know absolutely everything I do about them. Perhaps they have, in other cases, demonstrated themselves jurists of the highest wisdom and integrity, paragons of the profession, virtually the Platonic ideal of Judge. But you gotta wonder.

Oh, you should wonder about this, too. Both Texas and Ohio elect judges.