An Illinois appellate court has ruled that a new trial is not necessarily required simply because the trial judge fell asleep in the midst of testimony.
“We find that a judge falling asleep during a trial does not constitute per se reversible error,” a majority of a three-justice panel from the Illinois Third Appellate District ruled in an opinion dated Friday. Instead, the majority concluded in upholding defendant Nicholas T. Sheley’s conviction on four counts of murder that Sheley failed to show he was in any way prejudiced by the judge’s sleep.
The majority opinion was written by Daniel L. Schmidt and joined by William E. Holdridge. In dissent, Justice Mary K. O’Brien wrote that she considered a judge falling asleep to be automatically grounds for reversal, likening the judge’s falling asleep to a judge who left the bench to take a telephone call during trial, which the Illinois State Supreme Court concluded in 1996 required a new trial.
Quoting language from that earlier case, O’Brien wrote in dissent that 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.” Further, she added, “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.’”
At issue was Sheley’s conviction on four counts of murder, involving four victims who were found bludgeoned to death in their Rock Falls, Illinois, apartment in 2008. The case was tried before a jury overseen by Circuit Judge Jeffrey W. O’Connor of Henry County, who has served as a judge in the 14th Circuit since 1982.
A police officer testified about video footage taken from a gas station in Galesburg where Sheley was seen before the murder. After the video was shown in the darkened courtroom, the court transcript shows assistant attorney general William X. Elward saying, “Judge, can we have the lights back up.”
Sheley’s defense attorney, Jeremy S. Karlin, then asks, “Judge?” Karlin then approached the bench, and the court opinion quotes the transcript:
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.
After the lunch break, Karlin put on the record that when O’Connor had not responded, “I was concerned. I came to the bench, I called, I said Judge, to you again, you, and after that was when the clerk either, I think, poked you and then you awoke. Frankly, this is not the first time that I’ve observed this, but certainly not to the degree that I observed this morning and I have to make a record of that.”
Elward responded, “I share Mr. Karlin’s observations.” The next day Karlin made a motion for a mistrial, which the judge denied.
After Sheley was convicted of all four murders, and O’Connor sentenced him to four consecutive life terms without parole, Karlin moved for a new trial, contending the judge had fallen asleep on “numerous occasions.”
O’Connor said he considered that phrasing “gratuitous,” and added, “So if I was not looking at the video, that does not mean that I was not listening and hearing everything that was being said, and I find that the allegations that I fell asleep on multiple occasions to be feckless, factually unsupported, and, in fact, factually inaccurate, because I am the one that knows.”
The majority opinion states: “We hold that a judge falling asleep for a portion of a trial does not rise to the level of structural error. That is, such an error does not ‘necessarily render a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence.’”
Instead, the majority concluded, without a showing that the defendant was prejudiced the sleeping would be treated as a harmless error. The court noted there had been no objections for the judge to rule on during the period of he was sleeping, and the evidence against Sheley was overwhelming.