It should be no mystery that jurors have such a problem staying awake at trials.
Ex-pitcher Roger Clemens is accused of lying to Congress about his use of steroids, a federal perjury charge. One potential juror told the judge during jury selection that he’d rather be asleep than serve on a jury.
Sure enough, once on the jury, he dozed off and was one of two jurors dismissed by the judge last week. Moreover, Judge Reggie Walton had warned the lawyers: you’re losing the jurors, so speed it up.
Some law books warn that a dozing juror can be considered juror misconduct, and can throw out an entire verdict on appeal. But you can’t entirely blame an unpaid jury for predictable vices.
“You have the right to twelve jurors who are awake,” a court of appeals advised a Houston defendant in 2010 in overturning his conviction in a cocaine case. In Texas, it had been worse. Public defenders — lawyers hired by the court to represent indigent defendants — had been dozing off.
The Clemens case raises a basic question: If jurors are falling asleep at trial, isn’t there something fundamentally wrong with the presentation?
Yet prosecutors — often publicly funded — have gone ahead with cases so hopelessly complicated that panelists wonder why they are there in the first place. Not surprisingly, their verdicts say, “let’s blow this pop stand.”
Clemens isn’t on trial for using steroids. He’s on trial in Washington D.C. just for lying about it.
Former U.S. Senator John Edwards recently “won” a mistrial on several counts that he lied about his use of campaign funds to cover up an affair during his 2008 bid to become the Democratic presidential nominee. He arranged to pay off an aide to cover up his affair with a campaign videographer while his wife was dying of cancer. He even paid to hide the videographer to keep her out of sight.
Finally “outed” in mid-2008 after initial National Enquirer stories stoked doubts, he confessed. The baby daughter resulting from the affair was his. It was perfectly sleazy, but not illegal.
Edwards’ high-flying reputation as a successful trial lawyer and politician crashed, but he went on trial not for the affair — but for lying about it.
The jury was hopelessly confused. Edwards was supposed to have misused campaign contributions to engineer the cover-up. But if the contributions were simply gifts instead, his spending didn’t represent a violation of campaign spending laws.
You have to wonder why prosecutors don’t get the hint, and we get stories about snoozing jurors. Judges almost have to apologize to participants for keeping them in agony all day, stuck to chairs from which they are fearful of requesting even a restroom pass.
Yet a Texas appeals judge years ago complained about a case on appeal over some zzzz’s in the jury box.
“I saw it,” the judge squawked to lawyers after he’d refused to stop the trial. “So what? Let him sleep. You guys picked the jury. I didn’t.”
Back in 1993, a friend, who worked for a national media outlet, called and asked for my help covering a high-profile federal trial involving three airlines in a price-fixing case.
“It’s Galveston,” he declared. High profile lawyers. David Boies and Joe Jamail will be hanging out after trial each day. Greasy shrimp. Gin-and-tonics. You’ll love it.”
Continental and Northwest Airlines had sued American for predatory pricing over the latter’s well-publicized half-off, summer-long fare sale, contending it was a scheme to run them out of business.
There were reams of legal papers to be read. The lawyers were ready and primed for comment. One Stanford law professor, a foremost authority on price-fixing, sat in the gallery each day, making side bets on items like whether the American CEO would come uncorked under questioning.
One of the professor’s bets was that the jury would become so confused by monopoly law that they’d get muddled by the jury instructions intended as a roadmap for their deliberations. He offered odds that they’d flame out and toss the case.
The judge, Samuel Kent, saw the problem. One day he excused the jury and blew up at the lawyers, complaining of the sleep-inducing nature of the expert witnesses. You’ll lose the jury, he warned them.
The case ran for several weeks. Once in the jury room, jurors pondered the list of questions in their instructions. The first asked them to define the city-pair air markets capable of being monopolized in the case.
Their deliberations were barely a few hours old. But, unable to navigate beyond the first question, as if in a final exam, jurors gave up and threw out the entire case. The Stanford professor was richer and more delirious by the minute.
It’s hard enough to ask a jury to serve faithfully under duty to the American system of justice. Why double up by tempting the odds on wakefulness?
It would help if we asked juries to decide issues that really matter. Sure, it’s a technical question if ex-Sen. John Edwards and star pitcher Roger Clemens lied about the wrong things to the wrong people. But they’re both publicly dead and gone no matter the verdict. They’ll do the perp walk anyway.
Under orders to serve on a jury, sleeplessness is not entirely voluntarily.
The writer (firstname.lastname@example.org ) is a founder of the Aspen Daily News and appears here Sundays.