Judges sleeping through evidence not cause for new trial, Illinois appeals court says

Judge Jeffrey O'Connor

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.

“Judge?” the defense attorney asked, according to a transcript cited in the ruling. “Judge O’Connor?”

“Judge could we get the lights back on?” the assistant attorney general asked, approaching the bench.

“Hmm,” O’Connor replied, according to a transcript. A clerk allegedly poked him awake. When it was suggested now was a good time to break for lunch, the judge agreed. “Excellent time,” he said.

A Whiteside County, Ill., jury later convicted Sheley of the slayings, part of a 2008 rampage in Illinois and Missouri that took the lives of eight people. Sheley, now serving a life sentence, had sought a new trial based on the judge’s nap. In fact, the defense team said the judge repeatedly fell asleep during the murder trial.

But at the time the judge, O’Connor, denied both the request for a new trial as well as allegations that he had fallen asleep multiple times, saying only one instance had been documented and that even then he had heard the evidence.

“If I was not looking at the video, that does not mean that I was not listening and hearing everything that was being said,” said O’Connor, who called the motion “disgusting,” according to a transcript cited in the appellate ruling.

“The test on that is whether the judge ever lost control of the courtroom in these proceedings, and the answer to that is absolutely not.”

In its latest ruling, the state’s appeals court agreed, saying it had no effect on the trial, noting that the evidence against Sheley was overwhelming.

But in a sharply worded dissent, Judge Mary O’Brien disagreed, citing the 1996 conviction of Israel Vargas that was thrown out after a Cook County judge left the bench during a murder trial to take a phone call from another judge.

“A judge cannot be actively present on the bench when he is asleep,” O’Brien wrote.

O’Connor did not return messages seeking comment.

Experienced trial attorneys say judicial napping is rare but sometimes happens during jury trials, when the judge serves more as referee than fact finder. While juries render their own verdicts, at bench trials a judge solely decides the case. Both Sheley and Vargas were convicted by juries and, while the cases had different outcomes on appeal, Illinois courts ultimately decided that so long as a judge was actually in the courtroom, those verdicts stand.

And it can be difficult to tell if a jurist is sleeping or just closing his or her eyes in profound contemplation. A Michigan judge told jurors who thought he’d fallen asleep during a sexual assault trial that he was just leaning back in his chair, according to a 1988 appellate court ruling.

“I want to assure all of you … I never fell asleep,” said the judge, who is not named in the ruling that affirmed the jury’s guilty verdict. “I never go to sleep … I did lean back and do try to stay in low profile.”

“I am not so different than other judges. Judges have been wont to fall asleep. That is not my concern. I didn’t.”

Illinois case law on somnolent judges dates back more than a century. In that 1899 case — which involved a Loop collision at Clark and Harrison streets between a train and a horse-drawn wagon loaded with 4 tons of hay — the Illinois Supreme Court found that the Chicago judge’s five-minute nap during the trial was harmless because lawyers had failed to stop testimony or rouse the sleeping jurist “in a voice sufficiently loud to awake him.”

Judges have dozed off or slept outright during the O.J. Simpson trial, during U.S. Supreme Court oral arguments and even during war crime trials at the International Criminal Court at The Hague, where a snoring judge reportedly slept for half an hour. Former Australian judge Ian Dodd was such an inveterate napper he was dubbed “Judge Nodd” and eventually resigned in disgrace. Criminal defendants and civil litigants from California to New York have complained about judges sleeping during their trials, but for the most part higher courts have upheld convictions unless defendants could show the judges were actually asleep and that their slumber hurt the defendant’s fair-trial rights.

An exception came earlier this year when a Kansas court ordered a new trial for a gun crimes defendant after the judge presiding over the case admitted he had “nodded off” — an error the appellate court found as profound as denying a defendant the right to a public trial.

“How can a sleeping judge supervise anything other than his or her dreams?” the Kansas appellate panel wrote.

Jurors are more likely to fall asleep. An Illinois appeals court ordered a new trial for a burglary defendant in 2006 after the trial judge noted that a juror “was half-asleep during almost the entire proceeding.” The higher court has ruled that brief juror dozing is acceptable but “a juror who is inattentive for a substantial portion of a trial has been found to be unqualified to serve on the jury.”

Even trial attorneys have been caught sleeping on the job. In 2001, a Texas appellate court halted the execution of a man whose attorney slept through much of his client’s 1984 murder trial. The higher court said Calvin J. Burdine had been denied a fair trial because of the “consistent unconsciousness of his counsel.”

“Unconscious counsel equates to no counsel at all,” Judge Fortunato P. Benavides wrote for the majority, which awarded Burdine a new trial. Ironically, the courtroom naps may have saved his client's life. Burdine later pleaded guilty to murder, avoiding the death penalty in exchange for three life sentences in prison.

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Judges sleeping through evidence not cause for new trial, Illinois appeals court says