Sleeping judge let off the hook
Tuesday, Nov 7, 2017 - Posted by Rich Miller
* Tribune…
If a judge falls asleep during a murder trial, should the defendant automatically get a new trial?
A divided Illinois Appellate Court panel recently said no; so long as the judge was not dozing through crucial evidence or motions, an inadvertent nap is harmless. “We find that a judge falling asleep during a trial does not constitute … reversible error,” Judge Daniel Schmidt wrote in the majority opinion.
The decision builds on more than a century of Illinois bench nap law dating to a five-minute judicial snooze in 1899. But some critics say the latest ruling should come as a wake-up call for the standard to change.
“Of course it should be automatic reversal if the judge falls asleep,” said longtime criminal defense attorney Steve Greenberg. “It sends an awful message to the jurors that whatever is going on is just not important.”
The appellate decision is tied to the case of spree killer Nicholas Sheley, who was on trial for four murders in Judge Jeffrey O’Connor’s western Illinois courtroom in 2014 when the lights were dimmed so the jury could watch security camera footage on a monitor. When the presentation ended, an assistant attorney general asked that the lights be turned back on, according to the ruling. The judge didn’t reply.
* The appellate opinion has the transcript of what happened…
“MR. ELWARDS [sic] [Assistant Attorney General]: Judge, we can have the lights back up.
MR. KARLIN [defense counsel]: Judge?
(Counsel Karlin approached the bench.)
MR. KARLIN: Judge O’Connor?
(Counsel Elward approached the bench.)
MR. ELWARD: Judge, could we get the lights back on?
THE COURT: Hmm.
MR. ELWARD: We need the lights back on. (The Court complies.)
MR. ELWARD: Thank you. Judge, I’ve got some chain exhibits that I need to do with Detective Cirimotich, perhaps this might be a good time for us to break for lunch and bring the jury back after that.
THE COURT: Excellent time.
* Both the defense counsel and the prosecutor then had a chat with the judge, who said…
I will speak to the record that I have no physical inabilities at this point, that I’m aware of and, if the record shows no objections that I was required to respond to, while the videos were going on, and I don’t think there were any or I would have been aware of them. Your observation is noted for the record.
He later denied that he fell asleep “multiple” times during the trial and said the video had “No evidentiary value of that at all.”
* The court cited some precedent…
We find support for our holding in the decisions of other jurisdictions, which held that a judge falling asleep during trial did not constituted reversible error unless the defendant could establish prejudice. Lampitok v. State, 817 N.E.2d 630, 641 (Ind. Ct. App. 2004); United States v. White, 589 F.2d 1283, 1289 (5th Cir. 1979).
* Rejected another…
In reaching our holding, we reject defendant’s reliance on People v. Vargas, 174 Ill. 2d 355 (1996). In Vargas, the judge left the bench during a jury trial to take a phone call while a witness continued testifying. Id. at 358-60. The Vargas court held that “the nature of the error— total judicial absence for a portion of a felony trial—is per se reversible because such error is inherently prejudicial, not only to defendant’s right to a fair trial but also to the integrity of the judicial process.”
* And then ruled…
Having found that the issue of a judge falling asleep during trial is subject to harmless error analysis, we determine that the judge’s falling asleep in the instant case was harmless. It is undisputed that neither party called upon the judge to make any evidentiary rulings during that time. Additionally, the evidence of defendant’s guilt was overwhelming. […]
Additionally, a judge falling asleep during trial is far less likely to send a message to the jury that that portion of the trial is unimportant than a judge that physically leaves the bench. Jurors are more likely to attribute a judge falling asleep to the judge’s health or other physical factors. In the instant case, for example, the judge fell asleep while the lights were turned off and a video was playing. Assuming that the jury was even aware that the judge fell asleep, it likely attributed it to the darkness of the room and fatigue rather than to lack of interest in the proceedings. There is nothing in the record to indicate that the jury was aware of the incident.
* From the dissent…
I believe that the judge falling asleep in the instant case was tantamount to the judge physically leaving the bench in Vargas. When a judge is asleep—just as when a judge is physically absent—the judge is unable “to supervise the courtroom, rule on objections as they arise during the course of the proceedings, and deter any objectionable conduct to the detriment of the defendant.” Without the “essential safeguard” of the “judge’s active presence,” a defendant’s right to a fair trial is threatened. A judge cannot be actively present on the bench when he is asleep.
Additionally, like when a judge is physically absent, a judge falling asleep during a witness’s testimony “may create a negative impression in the minds of the jury to the detriment of the defendant.” Contrary to the majority’s assertion, I believe that it is highly unlikely that the jury did not notice the judge falling asleep during Officer Cirimotich’s testimony. Counsel called for the judge several times with no response. Defense counsel indicated that the judge was not roused until his clerk poked him. The judge falling asleep could have given the jurors the impression that the trial was unimportant or that they did not need to pay close attention to the testimony of the witness.
- wordslinger - Tuesday, Nov 7, 17 @ 12:36 pm:
I think the dissenters demonstrate common-sense.
You’re on trial looking at serious consequences, the judge should at least have to stay awake.
- Gooner - Tuesday, Nov 7, 17 @ 12:41 pm:
This is just boggling.
The jury picks up on everything. They see how the judge is looking at a witness and responding to counsel. They watch the attorneys, the way they respond, and even the looks on their faces.
Falling asleep tells the jury that the testimony does not matter.
Video evidence is boring.
When I was on a jury, I warned the other jurors that 1) it would be boring; 2) people want to sleep through it; but 3) they need to pay attention to it just like any other witness.
Of course, none of us said a word about the merits until we could, but it was important that the other jurors understood the process.
That is what a trial judge should do too.
This is just unacceptable. The judge gave a green light to ignore trial testimony.
- Because I said so.... - Tuesday, Nov 7, 17 @ 12:46 pm:
Years ago I was on the witness stand testifying about against the defendant who I witnessed attempting to steal our car. It would have been his 3rd felony conviction.
The judge fell asleep as I was testifying. He later let the defendant off on a technicality that could have been ruled on before I spent 3 days in court.
- Downstate43 - Tuesday, Nov 7, 17 @ 12:55 pm:
This happens far more often than most will publicly admit. In this case, the evidence is/was so overwhelming that it would not have made a difference - I can’t say that with any degree of certainty for others.
- Anonymous - Tuesday, Nov 7, 17 @ 12:56 pm:
I can see how it could happen - some lawyer who loves to hear his/her own voice - but there should be some extra legal means to address the problem when it occurs. Example:
Defense attorney drops his 6 pound law book on the floor. Once, or twice…depending.
- Champaign - Tuesday, Nov 7, 17 @ 12:58 pm:
From the special concurrence:
“Defense counsel’s tactic of not addressing the apparent problem of the judge falling asleep until it was time to “make a record” leads me to conclude that defense counsel was deliberately building error into the record, without giving the court any opportunity to address or prevent the error. The practice of deliberately building error into the record, a practice commonly known as “sandbagging,” is strongly disfavored by our courts.”
To say nothing of the fact that the defendant was accused of murder in 3 states, but the case was rushed in the Illinois courts because Missouri still has a death penalty option.
- Gooner - Tuesday, Nov 7, 17 @ 1:00 pm:
Anon 12:56,
What we do when we see it is make what would otherwise be a frivolous objection. It gets the judge’s attention. You get the response of “Uhhh, uhh, could the court reporter read that back” or “uuhhh, uuhh, overruled.”
It beats having the judge zone out.
- Perrid - Tuesday, Nov 7, 17 @ 1:02 pm:
Could the Judge face some kind of censure or disciplinary action over this? I get that we’re all human but I think there has to be some kind of response to this. As to the ruling, I don’t know if you can assume that the judge sleeping influences the jury, certainly not in this case when the lights were out and, going by the transcript, the lawyers (and presumably the jurors) were unaware the judge had fallen asleep until after the evidence had been presented. For that argument to work you kinda have to assume jurors are irresponsible and need to have someone looking over their shoulder to make them pay attention. I’m not a lawyer, and so have no opinion on the interpretation of the law, but that is what makes sense to me.
- Dome Gnome - Tuesday, Nov 7, 17 @ 1:07 pm:
I’m fine with somnolent judges, just as soon as it’s acceptable for surgeons, teachers, and pilots to snooze on the job.
- justpeachy - Tuesday, Nov 7, 17 @ 1:08 pm:
If you can’t stay awake during a trial you have no business being a sitting judge, period.
- Puddintaine - Tuesday, Nov 7, 17 @ 1:11 pm:
Sounds quite fair… so I’ll just take a little nap until my missed steps pay comes in.
Sauce. Goose. Gander.
- paddyrollingstone - Tuesday, Nov 7, 17 @ 1:16 pm:
A judge that I know quite well told that the trick to staying awake during the really boring parts is to take your index finger and place on your neck. It looks like you are contemplating but it is merely a device to keep you from nodding off.
- Responsa - Tuesday, Nov 7, 17 @ 1:16 pm:
Every time I’ve ever been present in a courtroom there has been a sheriff’s deputy/bailiff standing or sitting very close to the judge. Seems like they might be the one to make sure the judge is awake and allowed to subtly address or nudge him/her if not. This sort of thing doesn’t give people a lot of confidence in our judicial system. At least this judge didn’t fall asleep during a bench trial with no jury. That would be a whole different and scandalous kettle of fish.
- Amalia - Tuesday, Nov 7, 17 @ 1:36 pm:
Love the O’Brien dissent.
- Free Set of Steak Knives - Tuesday, Nov 7, 17 @ 1:37 pm:
Justice Mary K. O’Brien got it right.
It is impossible to conceive of a situation where a judge sleeping through the presentation of evidence isn’t prejudicial on its face.
“Going through the motions” is the message, loud and clear.
It isn’t defense counsel’s job to wake the judge when we get to the good parts.
And if the court wants to argue “sandbagging”, what do you say of the State’s Attorney, who is supposed to be representing the interests of the people, allowing a judge to nap through proceedings?
- Rich Miller - Tuesday, Nov 7, 17 @ 1:45 pm:
===to take a telephone call===
Um, yeah. That’s in the post.
- IRLJ - Tuesday, Nov 7, 17 @ 2:04 pm:
Bad cases make bad law. Sheley is a bad case.
I hope the Supreme Court grants leave to appeal. If not for Sheley’s sake, for the sake of all those who in the future are accused of a crime and want their judge to, minimally, stay awake.
- Texas Red - Tuesday, Nov 7, 17 @ 2:07 pm:
not surprised the legislative leadership of Illinois has been asleep at the switch for years - why not the judges !
- Precinct Captain - Tuesday, Nov 7, 17 @ 2:21 pm:
As ridiculous as the “lawyer dog” in Louisiana. The justice system is a joke.
- Bigtwich - Tuesday, Nov 7, 17 @ 2:57 pm:
The Judge is not the finder of fact when there is a jury. I knew of a criminal case where a juror fell asleep. When someone noticed they woke him up and continued. No objections. I would have thought that would be a problem.
- Arock - Tuesday, Nov 7, 17 @ 5:23 pm:
Good to see that common sense was used in this decision. The evidence was overwhelming and the defendant received more than one fair trial in Illinois. Amazing that he confessed to the murders in Missouri to get the death penalty off the table. It would be nice if he manned up and confessed to the crimes in Illinois so any chance of future appeals would go away. The taxpayers have wasted enough money on him and are on the hook for his expenses for the rest of his life.
- Anon - Tuesday, Nov 7, 17 @ 6:17 pm:
Lots of armchair judges here
- Freezeup - Tuesday, Nov 7, 17 @ 8:48 pm:
The judge in question was formerly the chief judge in the 14th circuit. Despite this unfortunate episode he is very practical, appropriately unconventional and I have found him to be what a judge should be, fair and impartial.
He is singularly responsible for cameras in the courtroom pilot project which is a pretty spectacular development.
The old Irishman took one on the chin for this deal but he is still one of the best around. Thought that should be said.
- Demoralized - Wednesday, Nov 8, 17 @ 9:03 am:
==The evidence was overwhelming==
That’s not relevant to a right to a fair trial argument.