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Judges

Justice Never Sleeps - But What if the Judge Does?

Posted on January 3, 2018 by Mark S. Mathewson

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.

Sheley was based on a criminal trial - 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? Find out in the January Illinois Bar Journal.

Accusing Judges: Balancing Lawyer Ethics and Free Speech

Posted on May 3, 2017 by Mark S. Mathewson

All attorneys have opinions about judges. Those opinions are sometimes negative and are often shared around the office, or when talking shop with a colleague.

But lawyers should beware of voicing those opinions in a more public forum. Rule 8.2 of the Illinois Rules of Professional Conduct prohibits attorneys from knowingly making false statements concerning the qualifications or integrity of a judge.

So when do opinions become lies? The First Amendment protects people who are stating opinions. It doesn't protect defamatory speech. And the issue gets even more complicated when that speech is part of a document filed with the court.

Some years back, the seventh circuit considered the nexus between the First Amendment and ethical rules in In re Palmisano70 F.3d 483 (7th Cir. 1995). There, the court reviewed a rule to show cause why an attorney who had been disbarred in Illinois should not be disbarred by the U.S. District Court for the Northern District of Illinois as well.