The prosecution, defense attorneys and judge in a felony trial all noticed that a juror was repeatedly falling asleep, but the judge declined the defense’s request to “rouse him.” The state’s Court of Appeals later determined it could not review whether the sleeping juror compromised the defendant’s right to a fair trial because the defense had not formally objected in the moment.

Now, the Colorado Supreme Court will decide whether Elliott J. Forgette may have his appeal heard.

The court on Tuesday granted Forgette’s petition, in which he argued the circumstances of his 2015 burglary trial in Denver amounted to a violation of his right to a fair trial by a jury of 12.

On the second morning of Forgette’s trial, District Court Judge Kenneth M. Laff asked the attorneys for each side to approach the bench while the defense was questioning a witness. The prosecutor mentioned that Juror 7 was asleep, “and has been for about the last five minutes.”

Later that day, Laff again called the attorneys to the bench. This time, one of Forgette’s lawyers mentioned Juror 7 was sleeping again.

“He does appear to be dozing off,” Laff acknowledged. “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. I noticed as soon as we started to speak after that last break, he was attentive.”

The judge added that Juror 7 “does seem to be eyes closed and being on sand at the moment.”

The defense wondered how long the man had been asleep, and Laff said it had been 15 minutes since he last looked at Juror 7.

“Can we try to rouse him now?” one of the defense attorneys asked.

The judge instead called a break for the jury. When jurors returned, there was no further mention of sleeping, and no reports from the lawyers of any juror being inattentive for the rest of the trial.

The jury convicted Forgette of second-degree burglary and Laff sentenced him to 12 years in prison.

On appeal, Forgette sought a reversal of his conviction, arguing that the sleeping juror deprived him of his right under the state constitution to a trial by a 12-person jury. A three-judge panel for the Court of Appeals opted against reviewing his claim, explaining that Forgette had failed to make an objection during trial.

“A statement that a juror was asleep during proceedings, without a request for a remedy or a specific objection, doesn’t present the court with anything to rule on,” Judge Craig R. Welling wrote in the February 2021 opinion.

The panel also considered whether Forgette himself needed to waive his right to a trial by a 12-member jury, or if his defense attorney could do it for him. The court decided his attorney was able to waive that right – and did waive it. Welling wrote that there may have been possible “strategic reasons” for the defense’s failure to lodge an objection to the sleeping juror.

“Forgette’s counsel may have determined that the sleeping juror was favorable to the defense or that his effective absence from hearing eyewitness cross-examination was beneficial,” Welling speculated.

In his petition to the Supreme Court, Forgette criticized the panel’s conclusions.

“Sleeping jurors undermine the fairness and reliability of trials because they cannot weigh evidence,” wrote Deputy State Public Defender Jacob B. McMahon, adding “there is no strategy in presenting evidence to a sleeping factfinder.”

McMahon added that even if Forgette’s lawyers at trial had not used specific language to lodge their objection, they raised the issue to the judge and asked him to rouse the juror.

The Supreme Court will consider whether the appellate panel was correct not to consider the sleeping-juror appeal, as well as whether Forgette’s attorney, rather than Forgette himself, could waive the right to a jury of 12.

Finally, the justices will determine whether the defense’s actions in Forgette’s case amounted to such a waiver.

The case is Forgette v. People.