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Is one sleepy juror enough for a retrial in slaying?

Woodrow Wilson was convicted of manslaughter in Pinellas last month. A juror said, yes, he was sleepy, but he "heard all the necessary information."

Published May 30, 2005

LARGO - Timothy Barton admits he was sleepy and bored while serving as a juror in a murder trial last month. From time to time, he closed his eyes.

After three days of testimony from 18 witnesses, Barton and his fellow jurors took about two hours to convict the defendant, Woodrow Wilson, of manslaughter. A judge then sentenced Wilson to 18 years in prison.

In what may be a first for a Pinellas murder case, Wilson is seeking a new trial because he claims Barton was sleeping through portions of the trial. Wilson's attorney has filed a motion for a new trial, and Judge Brandt Downey has scheduled a hearing on the matter for Friday.

Included in the motion are affidavits from seven audience members who say they saw Barton apparently sleeping at various times in the trial. Some said his eyes were closed during opening arguments and during the judge's instructions to the jury. Others said his eyes were closed during testimony, even when Wilson took the stand in his own defense.

But prosecutor Thane Covert said he never saw Barton sleeping, even though Barton was sitting on the edge of the jury box in front of the prosecutor's table.

"I never saw any evidence of sleeping," said Covert. "No drooling. No head down. No snoring. He just closes his eyes and listens."

Nor did Judge Downey, apparently, or Wilson's defense attorney, Christopher Yeazell.

In his motion for a new trial, Yeazell said audience members did not tell him of their concerns until after the trial was over.

Had Yeazell brought the issue up during the trial, Downey could have quizzed Barton about his sleepiness and perhaps replaced him with an alternate.

But after the trial is over, the judge's options are more limited, said Bruce Jacob, a professor at the Stetson University College of Law.

"I think some courts will just say too bad, too late," Jacob said.

Yeazell, an assistant public defender during the trial who is now in private practice, referred a reporter to Public Defender Bob Dillinger, who declined to discuss the case. Downey did not return a call seeking comment.

Barton, for his part, said he doesn't think he fell asleep during testimony.

"I'm not going to say that it didn't happen, but what I am going to say is I heard all the necessary information," Barton said.

However, he said he was tired and often closed his eyes. A 67-year-old landscaper, he found sitting for long periods to be difficult.

"I was really bored," he said. "A person who works all day going to sit like that, it's terrible."

He said a fellow juror nudged him once, thinking he might be asleep. But Barton explained that he often closes his eyes when he's thinking, but still hears what's going on around him.

Wilson, 66, was charged with shooting to death 49-year-old Frank Scott after the pair argued during a New Year's Eve party at a St. Petersburg motorcycle club. Prosecutors charged Wilson with second-degree murder, but the jury decided to convict him of the lesser manslaughter charge.

Partially because Wilson had been convicted of a previous murder in New Jersey 50 years ago, he faced up to 30 years in prison. With the 18-year sentence, Wilson won't become eligible for release from prison until he is about 80 years old.

If a new trial is ordered, prosecutors won't be able to try him for any charge greater than manslaughter.

Legal experts say sleeping jurors are probably more common than generally thought, but rarely will an allegation of a sleeping juror result in a new trial.

"That's going to be very hard to get the verdict overturned or a new trial declared," said Joshua Dressler, an Ohio State University law professor who has studied the issue of sleeping jurors.

One recent Tampa case did result in a new trial over the right of the Tampa Housing Authority to evict community activist Connie Burton from her apartment after her son was charged with marijuana possession. County Judge Eric Myers ordered a new trial after he said a juror had slept through most of the 2002 case. In the second trial, a jury again ruled the housing authority could evict Burton.

Dressler said it can be difficult to prove a juror was sleeping and not simply closing his eyes.

Dressler also wonders how the judge and attorneys, who are closest to the jury and would certainly be watching the panel, wouldn't see the snoozing if it truly occurred.

"It casts doubt either on the accuracy of the claim or it says that the drowsiness was rather short in length," he said.

Covert said he also thinks all the witnesses who filed affidavits are affiliated with Wilson. One of the affidavits is from an investigator for the public defender's office.

Based on what happens during the hearing Friday, Downey also could summon Barton to court and quiz him about how awake he was during the trial.

There also have been reports of lawyers and even judges sleeping during trials, including a rather famous case of a defense attorney sleeping during a death penalty case in Texas several years ago. That defendant later won a new trial.

In Canada, a lawyer once had to wake up a sleeping judge by slamming a thick pack of papers on his desk.

[Last modified May 30, 2005, 01:38:11]

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