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The Magazine of Illinois Lawyers

January 2018Volume 106Number 1Page 12

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LawPulse

Justice never sleeps - but what if the judge does?

What should a lawyer do when a judge falls asleep during trial?

Practicing law can be an exhausting profession. Long workdays make it difficult to maintain a good work-life balance. The daily stress of practicing can be tiring, too. Sometimes it's almost impossible to keep your eyes open in court.

When an attorney dozes off, it can be a problem. But what about the rare occasions when a judge falls asleep on the bench? The third district recently handled an appeal brought by convicted spree-killer Nicholas Sheley, centering on a judge who nodded off during the trial. People v. Sheley, 2017 IL App (3d) 140659.

The Sheley court held that a judge falling asleep during the proceedings does not constitute per se reversible error. The court reasoned that a judge falling asleep does not rise to the level of structural error - i.e., one that "renders a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence." Id. at ¶ 16.

The court stated that a judge falling asleep during trial is subject to a harmless error analysis, where the specific facts must be considered. "Because the evidence in this case was overwhelming and the parties did not call upon the trial judge to make any evidentiary rulings at a time when the judge was asleep, the judge falling asleep was harmless error." Id. at ¶ 21.

Justice O'Brien dissented, arguing that a judge falling asleep on the bench is akin to leaving the bench during trial, which was the subject of the supreme court's ruling in People v. Vargas, 174 Ill.2d 355 (1996). Justice O'Brien argued that "falling asleep in the instant case was tantamount to the judge physically leaving the bench in Vargas." Id. at ¶ 35.

When a judge is asleep, 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," the dissent states. Id. What's more, "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." Id. at ¶ 36.

What can lawyers do?

Sheley and Vargas are decisions based on criminal trials - the focus was on the defendant's rights first and the judge's conduct only as it relates to whether the defendant got a fair trial. But what should a lawyer or other observer do when a judge falls asleep on the bench?

Certainly, a concerned attorney or member of the court staff could report the judge to the Judicial Inquiry Board. The Board does not publicly comment on how it handles these matters.

Retired Judge John Coady, who is president of the Illinois Judges Association, says that "regardless of the reason, sleeping on the bench is something we don't want and is unacceptable." He believes that it can lead to either actual prejudice due to lack of attentiveness or undermine confidence in the administration of justice.

However, Coady notes that the reason for nodding off will dictate the response from the judicial system. In some instances, judges may fall asleep for reasons beyond their control. For example, undiagnosed sleep disorders, new medications, high levels of stress, and being up all night with a newborn baby can all lead to an exhausted judge taking the bench. Coady says that "the key in all of this is addressing the situation early before a major problem takes place."

While it may seem daunting to call out a judge for sleeping on the bench, Coady notes that participants in the system are doing a judge a favor by notifying the court system. There are several programs in place that can assist judges before a problem arises.

For example, the Lawyer's Assistance Program does more than provide addiction and mental health resources for attorneys. It is also set up to handle these kinds of issues. Reports to the LAP are confidential and will get a response.

There is also the State of Illinois ombudsman program, which uses lawyers and retired judges who are empowered to receive reports and work with a judge to come to a resolution. Coady says that a good example is the Illinois Fourth Judicial Circuit's ombudsman program (http://bit.ly/2AnOk56).

He notes that even if a specific judicial circuit lacks an ombudsman program, all circuits have chief judges. The chief judge has more ability than an ombudsman, and can also talk to court reporters, clerks, and courtroom security officers before meeting with the judge. Regardless of the means of intervention, Coady stresses that the key is addressing the situation early before a problem occurs and working towards a resolution that serves everybody.

(For more on the Sheley decision, see IL Law Update on p. 18.)


Matthew Hector
Matthew Hector is a senior associate at Woerthwein & Miller.

Member Comments (1)

If a judge nods off the lawyers should find a way to discretely wake him up and ask for a recess. Once when a judge fell asleep, no doubt due to the boring testimony I was eliciting, and seeing opposing counsel was aware of the matter, I asked an improper question to which opposing counsel (who is now a very fine judge himself) roared an objection throwing a book down on the table.

That proved sufficient - after three tries.