Commentary: Put this argument to bed

By Paul Fletcher Dolan Media Newswires Antonio Dunigan, doing five to 40 years for home invasion, probably figured he had found his get-out-of-jail-free card. He got convicted, he would argue, because his lawyer was incompetent and had failed to go after a juror who fell asleep during his trial. In People v. Dunigan (MiLW No. 07-81159, 5 pages), he asked the Michigan Court of Appeals to give him a hearing for that purpose. But the court made short work of his claim. Dunigan failed to show that the sleeping juror prejudiced his case, a three-judge panel concluded. And anyway, the court said, the juror fell asleep during the prosecution's presentation. The lawyer might have made the strategic move not to say anything. Conviction affirmed. Sleeping-juror claims come up every so often, but they are surefire losers. Memo to criminal defendants here and elsewhere: The sand-land defense is a nightmare. Consider the last few sleeping-juror cases to come through Michigan's courts. In 2004, in U.S. v. Sherrill, a drug defendant demanded that the judge quiz the jury after one of the members allegedly was snoozing. No dice, said the 6th U.S. Circuit Court of Appeals; the defendant failed to show any prejudice. In Walker v. Ford Motor Co., a 1999 appeals court case, the plaintiff complained that the judge dismissed a sleepy juror after both sides were out of strikes. In other words, the plaintiff wanted the snoozer on the jury and claimed it was error to get rid of him. The court didn't buy it. Sometimes getting too clever can backfire. The plaintiff in Jones v. Fout, an appeals court decision from 1997, complained about a juror's nodding off. His lawyer agreed to a mechanism to counteract the juror: a verdict by six of the seven jurors would be OK, essentially discounting the sleepyhead. That didn't work. After the plaintiff lost, the lawyer tried unsuccessfully to use the sleeper as a point of argument. Sleeping-juror claims forever will be suspect in light of a 1987 U.S. Supreme Court case, Tanner v. U.S., 483 U.S. 107 (1987). A couple of the jurors in a Florida federal courtroom were sleepy because they went out at the lunch recess and consumed several pitchers of beer. Other jurors enjoyed mixed drinks with lunch and the foreperson quaffed a liter of wine. The ones who weren't drinking were smoking dope. One guy saw jury duty as a business opportunity, selling a bag of marijuana to another juror during the proceeding. This group convicted two men of mail fraud. The shenanigans came to light when two jurors contacted the defense lawyer with the tales of drug and alcohol use during the trial. One, maybe after sobering up, had a guilty conscience, and said "the people on the jury didn't have no business being on the jury." At sentencing, the lawyer tried to use the information, but he was rebuffed. When the case made it all the way to the Supreme Court, the justices, by a 5-4 vote, let the convictions stand. One of the federal rules of evidence prohibits juror testimony to impeach a jury verdict unless there is a question of outside influence. If a fellow juror is drunk, or stoned, or sleeping, so what? The message on the sleeping-juror argument is clear. You can take all these cases and tell prospective jurors: Read 'em and sleep. Published: Thu, Mar 7, 2013

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