The Sleeping Jurors

The Massachusetts Supreme Judicial Court held that a defendant met his burden of showing that the judge’s response to reports of sleeping jurors was arbitrary or unreasonable

Villalobos has met his burden. Indeed, this case is much like McGhee, in which we determined that the judge’s failure to intervene gave rise to “serious doubt that the defendant received the fair trial to which he [was] constitutionally entitled.” McGhee, 470 Mass. at 645, quoting Commonwealth v. Braun, 74 Mass. App. Ct. 904, 906 (2009). As the Appeals Court explained, during Villalobos’s trial, the prosecutor reported one day that one juror “had fallen asleep ‘several times’ during the testimony,” and the next day, that a different juror “was sound asleep during the cross-examinations.” Villalobos, 89 Mass. App. Ct. 435-436. The judge, who did not have the benefit of McGhee, did not give any indication that he doubted the reliability of the prosecutor’s reports, yet he did not question the jurors to determine whether they had in fact fallen asleep and, if so, what portions of the evidence they might have missed. Instead, the judge simply observed each juror for the rest of the day. Id. Similarly, in McGhee, supra at 642-645, one juror reported that another juror had fallen “sound asleep” and was even snoring, but the trial judge declined to take action.

Moreover, like in McGhee, the trial judge appears to have been under the mistaken impression that he could not intervene unless he personally observed a juror sleeping…

The Commonwealth argues that the sleeping jurors missed minimal and relatively inconsequential portions of the testimony. Based on only the record before us, however, we cannot be sure that this is true. The purpose of a voir dire is to investigate the report that one or more jurors were sleeping and to determine what, if anything, the sleeping jurors missed. Because the judge did not conduct a voir dire, we do not have these essential findings.

The conviction was for a lesser charged offense of involuntary manslaughter. (Mike Frisch)