Metropolitan News-Enterprise


Thursday, August 29, 2019


Page 3


Ninth Circuit:

Judge’s Failure to Remedy Sleeping by Juror During Instructions Requires Reversal


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals has reversed a man’s convictions for conspiracy to commit bank robbery and bank robbery because a juror slept through the District Court judge’s reading of instructions and the judge did nothing to cure the problem.

The judge was Manuel L. Real, of the Central District of California, since deceased.

A memorandum opinion filed Tuesday orders the conviction of Artez Richard Brewer vacated and remands the case for a new trial, but affirms Real’s denial of a suppression motion.

The Sixth Amendment right to a fair trial is denied where a juror sleeps through “essential portions of the trial” and, the opinion says, the reading of instructions is such a portion.

Discretion Abused

It sets forth:

“We review a district court’s handling of sleeping juror allegations for an abuse of discretion….Here, when presented with an uncontroverted assertion that a specific juror slept through the court’s instructions, the district court did not make any responsive inquiry or finding. We give significant deference to trial judges, but that deference does not extend to a wholesale failure to investigate possibly serious allegations of juror misconduct….We conclude that the district court abused its discretion because it failed to ask any questions, make any findings, rule on Brewer’s request to replace the allegedly sleeping juror with an alternate, and/or failed to provide the jury with a written copy of the instructions.”

Providing written instructions, the opinion says, “could have potentially cured any prejudice caused by the allegedly sleeping juror.”

Oral Argument

While the opinion refers to the allegation of a juror having slept through the instructions as being “uncontroverted,” Assistant U.S. Attorney Bram Alden told the judges at oral argument in  Pasadena on Aug. 19:

“I did not see a sleeping juror. Neither did my colleague.”

He insisted that if there was error, it was “harmless” because “the evidence here is so overwhelming” and because his co-counsel, in closing argument, went over each of the instructions.

Circuit Judge Consuelo M. Callahan said:

“Judge Real said something like, ‘Well, OK—even if their eyes are closed, that doesn’t mean the person’s sleeping, and I didn’t see anyone sleeping.’ Is that some sort of finding that they weren’t sleeping—or what do we do with that?”

Alden responded that it should be viewed as a finding.

Defendant’s Lawyer

In rebuttal, Deputy Federal Public Defender Alexandra Yates explained that an allegation of a juror being asleep was made twice. On the second occasion, when Real was told that a juror was asleep while instructions were read, she said, Real “made no response at all—and the only response from the prosecutor was, ‘I didn’t notice.’ ”

Yates noted that Real was asked to provide jurors with copies of the instructions and declined to do so.

In her opening remarks, Yates did not discuss the sleeping juror, concentrating on a search-and-seizure issue. The circuit judges found that under the circumstances, suppression of evidence was not warranted.

Real had sentenced Brewer to 10½ years in prison.

The case is United States v. Brewer, 16-50411.


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