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Imagine you’re the defendant in a trial. Millions of dollars, or your freedom or your life, is at stake. Yet you look around and find that the trial is putting people to sleep. What if that person sleeping is the lawyer who is defending you or the judge or jurors who will decide your fate? What can you do? That’s a question on the minds of Arthur Andersen’s attorneys. In June, two members of the jury that convicted the accounting firm of obstruction of justice told Texas Lawyer, an affiliate of The National Law Journal and law.com, that two colleagues slept through parts of the six-week trial, and that the alleged nappers were in such a fog that one thought NASA was involved in the case and the other believed that prosecution star witness David Duncan was the one on trial. Arthur Andersen did not include a “sleeping juror” claim in its motion for a new trial, filed on June 25. The main reason is that it did not learn of the allegations in time to meet the seven-day deadline for the motion, says one of its appellate lawyers, Charles A. Rothfeld of the Washington, D.C., office of Chicago-based Mayer, Brown, Rowe & Maw. He said his client is pondering whether to ask the district court’s permission to amend its filing under an exception for newly discovered evidence. Even if Arthur Andersen is allowed to amend its filing, it faces an uphill struggle. Unlike the princess and the pea, the law seems to tolerate mountains of irregularities before stirring from its repose. That’s true for sleeping jurors and, perhaps to a lesser extent, for sleeping judges and lawyers. Even with ironclad proof that someone was asleep at the switch, appellate courts almost always require further proof of “prejudice” — a showing that having an alert judge, juror or lawyer would have had some chance of affecting the outcome. Defendants such as Arthur Andersen that learn after a trial that jurors were sleeping face an additional hurdle, since most courts will not even listen to what jurors have to say if it undermines their verdict. In an overview of juror misconduct from 1796 to 1996, Vanderbilt University Law Professor Nancy J. King found that courts have come to expect more from jurors as time has gone on. But King also found evidence that courts have become less likely to grant mistrials or reversals when misconduct is uncovered. Partly that’s a result of new mechanisms for dealing with misconduct during a trial (such as having alternate jurors standing by) and partly because of “impatience with the fragility of verdicts” in an earlier era when proven misconduct usually led to automatic reversal, without any inquiry into prejudice. King also found that modern-day judges, while acknowledging that sleeping jurors are a fairly common sight, do not see them as a serious threat to the fairness of trials. Of the 562 federal and state judges who responded anonymously to her survey, 69 percent said they had encountered a sleeping juror in the previous three years. Judges reported sleeping jurors in about 2,300 cases, about 6 percent to 9 percent of the tens of thousands of trials they had presided over during that period. Yet only five judges reported granting a mistrial. “Many … judges stated that they left it up to the lawyers to take action when jurors dozed, some noting that, after all, it was the lawyers who had put them to sleep,” King wrote. A 1987 case, Tanner v. United States, 483 U.S. 107, shows how difficult Arthur Andersen’s path is. Two jurors who helped convict Anthony Tanner of mail fraud were driven by guilty consciences to approach his attorney. One said in an affidavit that “the jury was on one big party,” with several jurors dozing during afternoon testimony because of the marijuana, liquor and cocaine they had consumed at lunch. A majority composed of the U.S. Supreme Court’s most conservative members responded to that evidence with the equivalent of “Hey man, no problem.” Justice Sandra Day O’Connor, writing for the five-member majority, held that the jurors’ post-trial statements were inadmissible under Rule 606(b) of the Federal Rules of Evidence, which forbids federal courts to consider a juror’s disparagement of his or her own verdict unless the juror is describing some outside influence, such as bribery. WHY NO REVERSAL O’Connor argued that without the rule, jurors would be harassed by disgruntled litigants and would be less willing to brave public opinion in controversial cases. She pointed to society’s interest in the finality of judgments, which has also weighed heavily in cases dealing with sleeping lawyers and judges. King says that most state courts follow the Tanner rule, though some will make an exception for matters such as racial biases expressed during deliberations. The reversal of Calvin Burdine’s death sentence would seem to indicate that sleeping lawyers are treated more seriously than sleeping jurors. In 1984, Burdine was convicted of murder and sentenced to death by a Texas jury. At a 1995 state hearing, three jurors and a clerk of court testified that Burdine’s attorney, Joe F. Cannon, repeatedly nodded off during state’s evidence. Last year, the en banc 5th U.S. Circuit Court of Appeals voted, 9-5, to reverse Burdine’s conviction and death sentence on the grounds that “Unconscious counsel equates to no counsel at all.” Burdine v. Johnson, No. 99-210. Because Cannon was “repeatedly unconscious through not insubstantial portions” of the trial, the court relieved Burdine of the burden of proving prejudice. The decision became final on June 6, when the Supreme Court declined to hear an appeal by the state. Burdine awaits retrial in Harris County, according to Robert L. McGlasson, his appellate attorney. The Texas attorney general declined to comment. David R. Dow, a law professor at the University of Houston, says that the outcome in Burdine’s case is not typical. He was habeas counsel for another of Cannon’s clients, Carl Johnson, who was executed in 1995. He says that Cannon, who is now deceased, was “a drunk who showed up tanked” and fell asleep at a number of trials, including Johnson’s. Yet, out of Cannon’s 10 clients who ended up on death row, only two have escaped execution, he says. In addition to Burdine, Max Soffar was granted a new trial by a 5th Circuit panel in 2000 in an opinion that expressed amazement at Cannon’s failure to exploit evidence suggesting that Soffar might have been innocent. Soffar v. Johnson, 253 F.3d 227. Soffar’s case is pending before the full 5th Circuit. In another Texas capital case, John Benn, who represented George McFarland at his 1992 trial, explained to the judge why he had snoozed through most of an afternoon’s testimony: “It’s boring.” The judge told the Houston Chronicle why he let the trial proceed. “The Constitution says everyone’s entitled to the attorney of their choice,” he said. “The Constitution doesn’t say the lawyer has to be awake.” The Texas Court of Criminal Appeals upheld McFarland’s death sentence in 1995, arguing that McFarland’s co-counsel was awake and may have let Benn sleep on in a bid for the jury’s sympathy. McFarland’s appeals are still pending. SLEEPING JUDGES King, the Vanderbilt professor, says that litigants are often reluctant to embarrass a judge by objecting to his snoozing and instead resort to a kind of courtroom slapstick: “Dropping books, knocking chairs over, sneezing loudly.” Though proof of prejudice is usually required on appeal, reversals are not unheard of. In a January decision that outraged New York’s tabloid press, Supreme Court Judge Marcy L. Kahn reversed David Degondea’s conviction for the murder of a police officer. Kahn found that Judge James Leff, who presided over Degondea’s trial and who is now deceased, had been “inattentive,” if not actually asleep, during jury selection, with the result that a biased juror ended up on the panel. People v. Degondea, No. 2433/93 (New York Co., N.Y., Sup. Ct.). Degondea’s appellate attorney, Claudia S. Trupp, says that what sets this case apart from others in which judges dozed is that Leff refused to rehear what had been said during his mental absence. Jim Kindler, chief assistant district attorney for Manhattan, disputes the idea that Leff was inattentive and has appealed the decision. ANDERSEN’S PROSPECTS Appellate lawyer Rothfeld argues that Tanner will not bar Arthur Andersen’s sleeping-juror claim. He says that if what the jurors told the Texas Lawyer is true — that they ceased trying to warn the judge about their sleeping colleagues after getting a marshal’s assurance that it was being looked into — then the harm to his client was not solely the result of influences internal to the jury room. The marshal is not a member of the jury and may have allowed the problem to persist, he says. The Justice Department task force that prosecuted the accounting firm would not comment for this story. In a different context, Arthur Andersen has also argued that jurors who called a press conference after rendering their verdict were hardly the shy types contemplated by O’Connor in her Tanner opinion.

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