10/05/2012 - Myclipp

The New York Times/ - Politics, Qua, 16 de Maio de 2012
CLIPPING INTERNACIONAL (Supreme Court)
As Clemens Trial Drags, Jury Keeps
Dozing
WASHINGTON — In the five days it took lawyers to
select the jury for Roger Clemens’s federal perjury trial,
potential jurors were confronted with more than 100
questions.They were asked about their education, their
occupations and their attitude toward athletes and
performance-enhancing drugs. They were asked
whether they had ever discussed or read about the
use of steroids or human growth hormone. But it
seems that for all the care and caution that went into
scrutinizing the Washingtonians who would end up
determining Clemens’s fate, one fundamental question
was overlooked: can you stay awake during the trial?
The trial of Clemens is in its fifth week — with Brian
McNamee, the government’s star witness, now on the
stand — and already, two jurors have been dismissed
for falling asleep. The first juror excused by the judge,
Reggie Walton of United States District Court, was a
27-year-old chronically unemployed man who was let
go last week. During juror questioning, he told
prosecutors that he would “rather be asleep” than
serve on the jury. In the end, he tried to do both but
failed. Walton then warned the remaining 15 jurors and
alternates: “Stay alert. We don’t want to lose anybody
else.” But another juror, a young woman who works as
a cashier at a supermarket, failed to heed that
warning. She nodded off on Monday — the day
McNamee, Clemens’s former trainer, began his
testimony — and was dismissed by Walton on
Tuesday. It was just last week that Walton scolded the
prosecutors and the defense lawyers for asking too
many unnecessary questions and boring the jurors so
much that they had begun to discuss the case among
themselves, which they were told not to do. He even
threatened to put a time limit on the trial. Before
testimony began last month, Walton also told jurors
that there would be free coffee in the jury room. Daniel
C. Richman, a professor at Columbia law school and a
former federal prosecutor, said that was not done
simply to foster good will. “Coffee is a critical tool of the
American justice system,” Richman said, at least
half-jokingly, adding that commanding the interest of
jurors was not easy because they were often expecting
a trial to be as entertaining as a television courtroom
drama. “It’s taking a bunch of people out of their
ordinary setting, putting them together and telling them
not to talk about the case, the one and only thing they
have in common, then expecting them to rise to the
occasion,” Richman said. “Most of the time, they do.
Sometimes, they don’t.” Jed Rakoff, a federal judge in
Manhattan, said sleeping jurors were not uncommon.
In even the most exciting trials, there are boring spells
that can put jurors to sleep, he said. In the Clemens
case, for example, jurors heard several days of
rudimentary testimony about how federal agents
handled the case’s key physical evidence. At least one
juror — and it was not one of the two kicked off for
sleeping — nodded off several times. Jurors seemed
to be slightly more alert Tuesday for McNamee’s
second day on the stand. He told jurors how his now
former wife urged him to collect physical evidence
showing that Clemens was using steroids. He said she
was convinced that he would be the scapegoat if
anyone ever found out about the drug use. “You’re
going to go down!” he said she told him. McNamee
also said that he injected Clemens’s wife, Debbie, in
the belly with human growth hormone while Clemens
watched, and that he considered it “creepy.” Rusty
Hardin, Clemens’s lead lawyer, spent less than 20
minutes cross-examining McNamee before court
adjourned until Wednesday, when the judge will
probably be on the lookout for more heavy eyelids in
the jury box. Rakoff said the key to staving off juror
sleepiness was to detect it early. “I carefully watch the
jurors in my trials, especially in the early afternoons
when, as much of the world once recognized, siestas
were a good way to digest a large lunch,” he said. At
least the Clemens jurors can take solace in knowing
that the trial may have only a few more weeks to go.
That is nothing compared with the McMartin preschool
trial in the 1980s that dealt with allegations of sexual
abuse at a California day-care center. That trial lasted
three years. Another 1980s epic, the Pizza Connection
case, went on for 17 months in court in Manhattan as
jurors listened, and listened, to testimony about heroin
distribution and money laundering. One of the
long-suffering jurors in that case lasted 16 months
before a judge dismissed her after she received an
apparent threatening phone call. And in the 1970s,
jurors in a case involving Memorex and I.B.M. were left
to review a 20,000-page transcript of the six-month
trial in San Francisco. The consequences of a juror
who loses focus can be dire. Last year, the Arkansas
Supreme Court reversed a death-penalty conviction
after a judge failed to declare a mistrial or dismiss a
juror who had been seen sleeping for as much as five
minutes at a time during expert testimony. Another
juror in that case was reprimanded — but not
dismissed — for posting to his Twitter account.
Richman, the Columbia professor, said that dozing
jurors could pose a problem for the defense.
359