The Right to a Well-Rested Jury.

• Author: Howe, Caroline

Table of Contents Introduction I. Constitutional Underpinnings of the Right to a Well-Rested Trial A. Right to a Fair Trial B. Right to Effective Assistance of Counsel C. Right to a Speedy Trial II. The Science of Sleep Deprivation A. Making Moral Judgments B. Heightened Emotions and Irrationality C. Focus and Forgetfulness D. Length of Sleep Deprivation E. Other Areas of the Law III. Making Judicial Discretion Operate More Effectively A. Judicial Discretion B. Establishing Reasonable Jury Expectations C. Preserving the Issue for Appeal D. Legislative Solutions Conclusion Introduction

In a small Louisiana courtroom in 1966, the government presented evidence in a three-defendant criminal trial from 3:00 in the afternoon to 11:00 that night. (1) Instead of heading home, the jury remained in the courthouse to hear defense counsel present their case from midnight to 3:00 a.m. (2) August Gueldner, William Skinner, and Alton Charbonnet were all convicted. (3) In a habeas petition, they claimed that their due process right to a fair trial was denied. (4) They argued that the expectation that jurors would be able to continue paying attention to the evidence so late into the night raised a host of constitutional problems. (5) But, like countless courts that have tackled this issue, the district court declined to find a constitutional violation. (6) In the decision, the judge held that because there had been no finding that the jurors were sleeping, and because they were conscious, jurors were presumed to be "conscientiously fulfilling] their oath." (7)

Nearly fifty years later, Susan Walls was rushed from a Tennessee courtroom to the hospital with stroke-like symptoms at the conclusion of her trial. (8) Rather than wrapping up the trial for the day, the jury, judge, attorneys, and courtroom staff waited two and a half hours for the defendant to return before beginning deliberations. The jury returned a guilty verdict at 1:05 a.m. (9) Once again, the court found that because the jurors were awake, no constitutional violations had occurred. (10)

These cases are unusual, not because the jury heard evidence ten hours after the normal business day ended or because the jury deliberated well into the night, but because these issues were raised on appeal at all. Across the united States, trials are being held into the night, and jurors are deliberating long after the normal business day ends. These long days and nights have implications for every actor in the criminal justice system. But the scope of the issue remains unknown because defense attorneys do not regularly preserve the issue for appellate review. (11) When they do, the claims are rarely successful. (12)

The problem of sleep deprivation among juries, lawyers, and judges has been largely unexplored, despite the increasing frequency of long trial days and long jury deliberations. This Note examines both trial day length and jury deliberation length in the context of state criminal trials. It considers the ways in which the attention and physical and emotional stamina of jurors, judges, counsel, witnesses, and courtroom officials are critical. During a trial, a case is presented in a method unfamiliar to most laypeople. Evidence must be introduced via ritualistic performances, witnesses must be prompted by carefully worded questions, and objections and instructions to the jury crop up routinely. Faced with such a novel format, jurors must listen carefully. Judges must be prepared to handle nuanced arguments, objections, and unexpected issues. Counsel must be prepared to object, cross-examine, and advocate. Even after all of the evidence has been presented, the job of jurors continues to be multifaceted. In deliberations, the jury discusses, dissects, and debates the evidence. While these conversations are happening, jurors need to maintain an open mind while also trying to come to the proper result. The demands of this process require concentration and care from all of these actors. This human component of the constitutional rights guaranteed to criminal defendants by the Fifth, Sixth, and Fourteenth Amendments has too often been neglected and undermined. This Note seeks to change that.

Trial judges exercise relatively unfettered discretion to manage trials and set hours in their courtrooms. (13) But because there is no constitutional underpinning for a due process violation on the basis of juror sleep deprivation, defendants do not have a clear avenue for relief when a judge abuses this discretion. The scientific community, however, has long been in agreement on the negative effects sleep deprivation has on cognitive performance, moral judgment, and the retention of positive versus negative information. (14) Yet no modern study has examined the length of trial days in state criminal courts, or in any court in the United States. (15) Additionally, studies of jury deliberation length have been limited. (16) Without this information, it is difficult to appreciate the scope of the problem. But even without hard statistics, instances of overly long trial days and jury deliberations have found their way into published state appellate court decisions in almost half of the states and Puerto Rico. (17)

Despite not having a formally recognized right to relief from any state or federal court, defendants have challenged the fundamental fairness of verdicts handed down after punishingly long trial days. (18) When sleep-related fairness arguments have been raised, courts have failed to develop a uniform approach to handling them. (19) Without further research, the full extent of the problem remains unknown. But we do know that courts across the country are facing extreme budget cuts that affect their ability to manage their dockets, forcing them to do more with less. (20) The problem of overly long trial days and jury deliberations will not be resolved without a concerted effort on the part of judges, attorneys, and legislators. (21)

Three modern cases highlight the extremes of trial days and jury deliberations, as well as the often-indifferent response of appellate courts. First, in 2004, a jury was not excused to deliberate in Travis Parisien's case until 7:40 p.m. (22) In total, the jury worked a seventeen-hour day. (23) Parisien appealed the verdict, claiming that the overly long trial day and jury deliberation was coercive. The Supreme Court of North Dakota presumed that it was not, and Parisien's challenge to this overly long trial day and jury deliberation, without more, failed to sway the court. (24) Second, in 2005, at 12:10 a.m. in a Kentucky courtroom, a trial judge instructed a deadlocked jury to continue deliberating, and eventually it arrived at a unanimous verdict against defendant John Tim Jenkins. (25) The Kentucky Court of Appeals concluded that "there are situations so egregious as to amount to a deprivation of due process"; this case, however, was not one of them. (26) Any defining characteristics of this threshold remain unclear. (27) Third, in 2011, Rocky Purdin rested his defense in Ohio state court at 5:00 p.m. on a Friday. (28) The trial judge gave the jurors three options: (1) return to court the next day, Saturday, to deliberate at 9:00 a.m.; (2) return on Monday morning to deliberate; or (3) begin deliberating that night. (29) Because no juror protested staying later, the trial court sent the jurors off to deliberate at 9:00 p.m. (30) By 3:30 a.m., the jurors reached their verdict: the prosecution got its conviction. (31) The Court of Appeals of Ohio differentiated the case from a 1970 Iowa Supreme Court decision, which had reversed and remanded a jury verdict conviction handed down at 4:30 a.m. (32) By comparison, the judge claimed that despite the 3:30 a.m. verdict, there was "no indication that the jury was fatigued or that there was a 'premium on stamina and strength rather than judgment.'" (33) For the court, that single hour seemed to have made all the difference between a fair and a fundamentally unfair trial.

This small sampling of cases exemplifies how physically taxing it can be for defense counsel, witnesses, court employees, and jurors to participate in the criminal trial process. It also illustrates appellate courts' typical indifference to the due process rights of the defendants who raise these issues. Something important is being lost in translation for these judges. (34)

This Note argues that judges must exercise their discretion to ensure defendants' fair trial rights are not eroded by overly long trial days or jury deliberations. Part I explains how overly long trial days and deliberations are in tension with defendants' constitutional rights to a fair and speedy trial as well as to effective assistance of counsel. Part II examines scientific research on how sleep deprivation affects reasoning and moral judgment and concludes that sleep deprivation during the presentation of evidence and jury deliberation violates the right to a fair trial. Part III contends that the best solutions to these violations is a combination of (a) judicial discretion exercised to cabin trial day length, and (b) legislative action to set hard limits. These solutions empower judges, counsel, and legislators to extend constitutional guarantees to criminal defendants in areas where rights infringement regularly occurs.

1. CONSTITUTIONAL UNDERPINNINGS OF THE RIGHT TO A WELL-RESTED TRIAL

   An overburdened, underfunded criminal justice system jeopardizes defendants' constitutional guarantees to a fair trial and effective assistance of counsel. Without strong protections against practices like requiring defense counsel to present evidence at midnight (35) or pressuring a jury to continue deliberations for twenty-four hours straight, (36) these constitutional guarantees are guarantees in name only. In too many cases, overwhelmed state judiciaries make compromises for the sake of efficiency that reduce protections for defendants and forfeit these...