You Snooze, You Reverse

The Massachusetts Supreme Judicial Court reversed a criminal conviction due to the trial court’s failure to conduct voir dire into allegations that a juror slept through important trial testimony.

The charges alleged that the defendant robbed people who were at an ATM machine.

A juror brought the problem to the trial judge’s attention on the second day of trial

On the first day of trial, testimony was taken from two of the three victims, Fletcher and Brown. The next morning, juror no. 6 (reporting juror) told a court officer that there had been an issue with juror no. 7 (identified juror) on the previous day…

After hearing from the reporting juror, the judge said, “Maybe I should examine him,” referring to the identified juror. The judge then explained, however, “I have questioned jurors before, if I’ve observed them [sleeping]. I haven’t; so I’m kind of hesitant.” The prosecutor said, “I think her description is fairly clear as to snoring. I think it may be something we want to ask.” Defense counsel said, “I would ask that you inquire.”

After hearing from the parties, the judge said, “Well, I  If he looks like he’s not paying attention, we can take steps right now.” Defense counsel asked the defendant, who was present at this discussion, “Are you okay with that . . . ?” to which the defendant responded, “I’m good.”

At the end of the trial, the prosecutor stated that he had observed the identified juror “throughout the course of the trial, and he appeared to be awake and paying attention, taking notes.” The judge remarked that he had tried to watch the identified juror but had not been able to because of the juror’s position in the jury box. The judge added for the record, “[B]ecause of basically my failing to observe any sleepiness during the evidence, we have done nothing with him in that regard.”

The defendant argues that the judge’s failure to inquire into the identified juror’s ability to deliberate and decide the case on the evidence was a structural error that necessitates a new trial. We agree.

The court

 In the current case, the judge declined to conduct a voir dire of the identified juror, or to take any other steps to determine if that juror was fit to deliberate. So far as the record reveals, the information relayed by the reporting juror showed reliably that the identified juror had slept through important portions of the trial. The reporting juror stated that the identified juror had been snoring loudly during the portion of the trial at which two of the three victims testified, and had later nodded his head as if awakening; a third juror reportedly had confirmed the reporting juror’s observations. There was no apparent cause to doubt the reliability of this account.

(Mike Frisch)