If a criminal defendant had a problem with the juror who repeatedly fell asleep during his trial, he should have objected to it, the Colorado Supreme Court ruled on Monday.

The justices reached that conclusion even after acknowledging all parties at Elliott J. Forgette’s burglary trial were aware of the sleeping juror and Forgette’s defense attorney had specifically asked the trial judge to “rouse” the man.

“We further conclude that when counsel is aware of all of the pertinent facts and does not preserve an objection to an allegedly sleeping juror, that objection is waived, thereby precluding appellate review,” wrote Justice Richard L. Gabriel in the court’s Jan. 30 opinion.

Because the Supreme Court decided it could not delve into Forgette’s claims, it noted only that Forgette was tried and convicted by 12 people, as the state constitution requires. The court did not engage with Forgette’s argument on appeal that a 12-person jury necessarily requires 12 people who are conscious and attentive.

On the second day of Forgette’s trial in Denver, during the cross-examination of a witness, then-District Court Judge Kenneth M. Laff asked the attorneys to approach and discuss scheduling. Once there, the prosecutor spoke up to say Juror 7 “is now asleep” and had been for about five minutes.

Laff called a recess, and witness testimony resumed afterward. After another witness’s cross-examination, Laff again summoned the attorneys. This time, Forgette’s lawyers pointed out Juror 7 seemed to be sleeping again.

“Yes, he does appear to be dozing off,” Laff conceded. “I think he is with us sometimes. I’ve been trying to keep an eye on him, and I certainly have tapped the microphone, which usually works.”

The judge added that Juror 7 was “eyes closed and … on sand at the moment.”

“Can we try to rouse him now?” asked Forgette’s attorney. Laff responded that he would do it after their discussion was over.

“Of course,” the lawyer responded.

After the conference, Laff took another break in the proceedings. He never addressed the sleeping juror issue and there were no further problems during the trial.

Forgette’s jury convicted him of burglary and he received 12 years in prison.

On appeal, Forgette claimed a violation of his constitutional right to a 12-person jury because one juror was inattentive during portions of the evidence. But a three-judge panel of the Court of Appeals declined to evaluate that argument because Forgette had not objected in real time to the sleeping juror, thus waiving his ability for the appellate court to hear that claim.

“While we agree that the issue of the sleeping juror was brought to the court’s attention, defense counsel never requested a remedy and the trial court wasn’t presented with any specific objection to rule on,” wrote Judge Craig R. Welling, speculating that Forgette’s attorneys may have purposefully not objected because they thought a sleeping juror was “favorable to the defense.”

The Supreme Court agreed to hear Forgette’s appeal and held oral arguments last year before an audience of students at Pine Creek High School in Colorado Springs. Multiple justices were critical of Forgette’s failure to object.

“What’s so bad about a rule that requires defense counsel to ask for what they want? What’s so bad about that?” said Justice Carlos A. Samour Jr.

At the same time, some members of the court were wary about Laff’s handling of Juror 7.

“It seems to me in reading other cases that have involved sleeping jurors,” said Justice Melissa Hart to the government’s attorney, “very consistently the trial court judges in these have done what this judge did not do, which is to ask the juror what did they miss and to take other corrective action. Why was the judge’s decision to take no corrective action not a plain error?”

Jacob B. McMahon, the public defender representing Forgette, asked the justices to hold that trial judges should investigate what evidence a sleeping juror missed while they were unconscious, and the failure to do so would trigger the reversal of a conviction.

“The appellate court can have no confidence the verdict is legitimate,” McMahon said. “There’s objective circumstances on the record showing the juror could not have listened to the evidence on which the verdict was based.”

But the Supreme Court stopped short of that proposal, finding Forgette had waived the ability to appeal the sleeping juror. A waiver requires a defendant to know about and intentionally give up their rights, and, in Forgette’s case, his lawyers knew about Juror 7’s inattentiveness and did not object. While the defense attorney did ask Laff to rouse the man, the attorney replied “of course” when Laff suggested doing it later. 

The court did not engage with the question of whether defense attorneys can waive their clients’ right to a jury of 12, finding no violation of that right to begin with for Forgette. In doing so, the justices also did not grapple with the degree of inattentiveness a juror can display before compromising a defendant’s constitutional rights.

“Forgette was tried by a jury of twelve,” Gabriel wrote, “and those twelve jurors, including Juror Number Seven, unanimously voted to convict him of the felony with which he was charged. As a result, we conclude that Forgette’s right to a twelve-person jury is not implicated in this case.”

The case is Forgette v. People.