Justice May Be Blind, But Is She Unconscious?

An interesting article in the New Jersey Law Journal. Seems that several jurors decided that the trial of Roy Higinia, in October, 1996, was less than compelling. In fact, four or five were allegedly "deep asleep," and several others were falling asleep.

This was in the defense attorney's opening statement.

Now, I'm not the most animated speaker. But putting half the jury to sleep during opening statement? Wow.

Now, I'm from Houston. It took the Federal courts to tell us that a lawyer has to stay awake in a capital case. Who woulda thunk it? Next thing, someone's gonna want judges to stay awake during trial. Heaven forfend!

The New Jersey courts rejected the complaint that a defendant is entitled to jurors who are actually awake and who hear all the evidence. Seems reasonable to Jurygeek.

But it seems to me that a defense attorney has to take an affirmative approach. Request breaks if the jury seems snoozy. Tell the jurors that they have to stay awake. Request the judge to intervene. Frequently.

Or maybe just not be so friggin' boring.

That said, a judge should also be aware of what the jurors are doing. And if one or more has faded away into the Land of Nod, he has a duty to act.

The Appellant should win in this case if the judge said "let them sleep." But if the defense failed to preserve the juror's snoozing in the record, it seems to Jurygeek that the defense is doomed. Maybe they can win on a Writ, but not on direct appeal.