Court’s Failure to Sufficiently Inquire Whether Juror Was Sleeping Required New Trial
On three separate occasions – during the cross-examination of the arresting police officer, when a summation was being given, and when the court was providing jury instructions – defense counsel noticed that a juror either appeared to be sleeping or was struggling to stay awake. Counsel alerted the court each time and repeatedly moved to remove the seated juror as grossly unqualified. In response to the court’s questioning, the juror acknowledged he was not sure if he heard everything and he understood “more or less” what the court had instructed the jury during the charge. Defense counsel’s request to question the juror was denied and the court further denied the application to remove the juror.
The Appellate Division reversed, finding the trial court failed to conduct a sufficiently probing and tactful inquiry. The court never inquired if the juror had fallen asleep or was sleepy, did not ask about counsel’s observations that the juror had put his head back with his eyes closed and his mouth dropped, and failed to ask the juror if there were portions of the jury charge he did not understand. Because the trial judge did not question the juror sufficiently, its determination that the juror was not grossly unqualified to serve was based on speculation. The conviction was reversed and a new trial ordered.
Sean H. Murray represented Mr. Mentor