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New Jersey’s public defender wants the U.S. Supreme Court to issue a bright-line rule that a defendant’s due process right to a fair trial is violated when jurors fall asleep during testimony. Several jurors allegedly dozed off during Roy Higinia’s October 1996 drug-possession trial in Essex County, N.J. The transcript shows that Assistant Deputy Public Defender Rafael Gomez, at a sidebar just prior to cross-examining a police detective, told the judge that four or five jurors were “deep asleep” and some were “falling asleep” during his opening. Superior Court Judge Julius Feinberg said he had not noticed and the case would continue but he would “wake them up, if necessary.” He then asked the jurors if the room was too hot and when one answered “a little bit,” he had the windows opened. The trial proceeded and Higinia was convicted and sentenced to five years in jail. The Appellate Division rejected the argument that the defendant was entitled to jurors who have heard all the evidence. In State v. Higinia, A-5515-02, decided March 21, Judges Francine Axelrad and Rudy Coleman said Feinberg took “proper remedial measures” by opening the windows after surveying the jury. Further, since defense counsel did not request anything more at the time, the issue could not be raised on appeal. They also found no prejudice because the alleged napping occurred during direct testimony by a prosecution witness and the jurors were awake for the cross-examination. The New Jersey Supreme Court denied certification on May 25. In the petition for certiorari filed Aug. 23, Assistant Deputy Public Defender Lon Taylor said the appeals judges ignored state precedent that places an affirmative duty on the trial court to assure an attentive jury. Taylor asked the Court to rule that a sleeping juror is per se a structural error not amenable to harmless error review and so requires reversal. The petition points out that Higinia, who admitted possessing cocaine, claimed that police fabricated the distribution charges and that jurors who slept through police testimony would miss the chance to assess credibility based on factors like body language and demeanor. Sleeping jurors are not uncommon. A 1996 survey of state and federal judges by Vanderbilt Law Professor Nancy King found that 69 percent of the 562 respondents had seen at least one in an estimated 2,300 cases during the preceding three years. Rachel Sacharow, a spokeswoman for the state Division of Criminal Justice, declined comment last week, saying her office had not yet seen the petition.

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