Judge failed to note snoozing juror, records show

Published June 9, 2005

LARGO - Circuit Judge Brandt Downey, recently accused of sexual harassment and accessing pornography on his office computer, failed to alert attorneys during a murder trial this year that a juror may have been sleeping, according to court records.

Two bailiffs are scheduled to testify in depositions Friday that during the murder trial, a juror gave them a note that indicated another juror was snoozing.

One of the bailiffs gave the note to Downey, but the judge didn't alert either prosecutors or defense attorneys of the juror's concerns, nor did Downey place the note in the court file, according to a motion filed Thursday by Public Defender Bob Dillinger.

The jury convicted the defendant, Woodrow Wilson, of a lesser charge of manslaughter. Downey sentenced Wilson to 18 years in prison.

The public defender's office is seeking a new trial for Wilson based on testimony from seven audience members who said they saw the juror sleeping during the trial. Neither the prosecutor nor the defense attorney said they saw the juror snoozing.

Downey should have alerted them that a juror had a concern, said Joshua Dressler, an Ohio State University law professor who has studied the issue of sleeping jurors.

"It does strike me that that was at least an unwise decision on the part of a judge to not disclose immediately the information that was passed along by the juror," he said. "That would have been the appropriate time to inquire into the juror's sleeping habits."

During a court hearing Thursday, Downey did not acknowledge receiving the note. A message left at his office was not returned.

Downey took a mysterious leave of absence in late April, about two weeks after the Wilson case, just as another trial was about to begin. He left the courthouse after a meeting with Chief Judge David Demers and Dee Anna Farnell, the administrative criminal judge.

Farnell acknowledged to a St. Petersburg Times editorial writer that accusations that Downey accessed pornography on his computer were discussed at the meeting. Accusations of sexual harassment against Downey also were discussed at the meeting, Farnell said.

Downey returned to the bench two weeks later. He has declined to comment on the reports.

The series of events has led to speculation that Demers may take Downey off the criminal bench, where he has been for 17 years, and move him to another area, such as civil court.

Demers confirmed through a spokesman this week that he did "anticipate several changes" in judicial assignments by July 1, but declined to elaborate. Judicial shuffling usually occurs in January.

Wilson's attorneys, meamwhile, have been gathering affidavits from audience members who claimed to have seen the sleeping juror. None of those audience members told the defense of their concerns until after the trial.

The defense since has asked for a new trial based on affidavits from the audience members.

In a May 30 article in the Times, the juror accused of sleeping, Timothy Barton, said he sometimes closes his eyes when he thinks. Barton, 67, acknowledged being tired during the trial and said one juror nudged him during testimony.

Prosecutor Thane Covert said he saw Barton close his eyes, but believed he was only thinking, not dozing. Covert later contacted the bailiffs who were in the courtroom during trial to see what they saw.

That's when he learned of the note. One bailiff said a juror wrote a note to the judge that said something to the effect of: "All people are entitled to a fair trial. There is a black male sleeping juror."

That bailiff gave the note to a second bailiff, who handed it to Downey. When the bailiff later asked Downey about the note, "the judge indicated that he would keep an eye on the juror in question," court records state.

Covert then alerted the public defender's office and Dillinger scheduled the bailiffs for depositions.

Dillinger also issued subpoenas for six workers with the circuit court's information technology department.

Dillinger wouldn't say why he wanted to interview those workers, nor would he say if it was because of the pornography allegations against Downey.

Covert asked Downey to quash Dillinger's subpoenas for the bailiffs and the information technology workers. Covert said Dillinger can question the bailiffs during a June 24 hearing in which the defense will seek a new trial. He also questioned what the technology workers would know about the case.

During Thursday's hearing, Downey denied the motion to quash, allowing Dillinger to depose the bailiffs today.

Dillinger then quickly withdrew his request to depose the information technology workers. After the hearing, he said he may ask Downey at a later time for permission to depose those workers.

"I may be back," he said.

Whatever happens, Dressler, the Ohio State professor, said the judge is more likely now to grant Wilson a new trial.

"If there is even a plausible case of a violation of a defendant's rights because of a juror sleeping, the judge will now more likely rule for the defense," he said.

--Chris Tisch can be reached at 727-892-2359 or tisch@sptimes.com