Courtroom 'drama' can inspire naps

April 25, 1995|By Kate Shatzkin | Kate Shatzkin,Sun Staff Writer

As the clock edges toward 3 p.m. on Day 12 of a drug-conspiracy trial in a Baltimore courtroom, you can see which way some jurors are leaning. Unfortunately, it's not toward a verdict.

Heads droop, eyelids flutter closed, mouths fall unprettily open. Several alternate jurors slump in the same direction, like windblown trees. Sleep has stolen upon the scene -- invited by stomachs digesting lunch, the dizzying warmth of the day and a federal agent's explanation of wiretapping technicalities.

Despite the modern courtroom's reputation as a stage for nonstop drama, the setting just as often inspires a nap.

"It always happened after lunchtime with me," said Harold Milledge, 42, a postal worker who fought sleep at times while sitting on the gay-bashing trial of three Dundalk men in 1993. "It would get so soothing. You'd just feel your eyes getting heavy. I would move around in the chair and I would really try to pay close attention to what these folks were talking about."

Yale law school Professor John H. Langbein said that when the Constitution institutionalized juries in the United States, trials concluded rapidly -- sometimes within minutes. Contrast that with Criminalist Dennis Fung's nine days on the stand in the O. J. Simpson trial, or a recent asbestos case in Baltimore that took more than seven months.

"The framers never saw or even thought of a sleeping jury," Mr. Langbein said. "There's a big difference when you go from minutes [in a trial] to months."

Long trials can dwell on such topics as the contents of sludge or a defendant's tangled financial transactions. Add to that problems of temperature control in a 95-year-old courthouse, and demands of children and night jobs after jury duty ends for the day. The drug-conspiracy trial under way now in Baltimore Circuit Judge John N. Prevas' courtroom involves five defendants -- down from 35 -- and their lawyers plus hundreds of recorded phone calls and piles of other evidence.

Sometimes, boredom just can't be avoided.

"I guess from time to time, maybe it's our fault," said Haven Kodeck, a deputy state's attorney who formerly headed the office's economic-crimes unit. "There's no way of making checks entertaining."

Lawyers and judges have their strategies for keeping jurors awake. As a trial lawyer in the 1970s, Baltimore Circuit Judge Edward J. Angeletti carried a large book to drop at appropriate moments. As a judge, he passes around a bright red bucket of hard candy to keep jurors' mouths working and their eyes open.

Judge Prevas said he sometimes injects screechy feedback into the microphone system to wake jurors.

Medical-malpractice lawyer Marvin Ellin moves around so that jurors' eyes will follow, consciously modulates his voice and uses visual aids to illustrate points.

Sometimes, a juror's napping impulse becomes just another tool of the adversary system, used by lawyers to try to strike a panelist they feel won't go their client's way.

"You start making a record about it," said Michael Schatzow, a partner at Venable, Baetjer & Howard and a former federal prosecutor. "You go up [to the judge] every time the juror is asleep."

And jurors occasionally use sleeping as a passive-aggressive attempt to get out of service.

DeAngelo Bailey, 28, dozed "daily" during three months on the asbestos trial, before being excused by Judge Richard T. Rombro. He said pressures at work and home tired him; the lengthy and repetitious testimony made him bored and resentful.

"My only outlet was to go to sleep," Mr. Bailey said.

However, once a jury is seated, it can be difficult for a judge to dismiss a drowsy panelist.

In 1987, the Maryland Court of Special Appeals ordered a new trial for Vincent S. Stokes on a conviction of unauthorized use of a motor vehicle. Judge Robert I. H. Hammerman, chief judge of Baltimore Circuit Court, had replaced a dozing juror over the defense's objections.

The higher court said that while judges may dismiss jurors for being inattentive, neither the prosecutor nor the defense attorney had been given the opportunity to establish whether the juror's sleeping made her unfit to continue serving.

More often, jurors nod off for only a few minutes at a time, despite their best eye-rubbing, elbow-pinching efforts to stay awake. The majority stay alert and interested, even helping rouse slumbering peers.

Kojo Asafo-Agyei, 41, a technical writer, said he stayed awake through every minute of a two-week federal court trial several years ago, when the jury he sat on had to decide how much money to award an injured Amtrak employee. A native of Ghana, he wanted to learn how the American court system worked.

But he pointed out that just because his eyes were open didn't mean he always could stay focused.

"Whether or not you are asleep, to me, is beside the point," said Mr. Asafo-Agyei. "The point is your attention span. Are you going to be riveted to the testimony all that long? It's impossible."

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