Imagine a criminal trial where the defendant is charged with four separate counts of first degree murder. Then imagine that while a detective is testifying regarding some videotape evidence, defense counsel notices that the judge is ….. asleep. Sounds like the opening scenes from Law and Order. But that exact scenario played out in a Whiteside County, Illinois courtroom not long ago. The saga is detailed in this Appellate Court opinion – People v. Sheley, 2017 IL App (3d) 140569 -.

After the videotape concluded, defense counsel noticed the judge was sleeping. Defense counsel then woke the judge. Shortly thereafter, defense counsel properly made his record, where he noted that the judge – Judge Jeffrey O’Connor – had fallen asleep. The Appellate Court opinion indicates that defense counsel noted that he had observed Judge O’Connor sleeping before, but the specifics are not provided. The State’s Attorney, acknowledged on the record that he too had observed the judge sleeping. Judge O’Connor didn’t deny falling asleep. He simply commented that he had no physical issues the might impair him and allowed the trial to move forward.

The next day the defense appropriately asked for a mistrial because O’Connor had been falling asleep. The motion was denied and the defendant was convicted. The defense sought a new trial, citing the fact the judge had fallen asleep more than once, and appeared to be confused. O’Connor’s ruling on that motion is a study in deflection. First, he noted, apparently in his defense, that he only fell asleep once. O’Connor then goes on to voice his displeasure with the fact that the local press had the nerve to point out that he had fallen asleep during a murder trial. O’Connor characterized the motion as “disgusting” and denied it. The defendant appealed the guilty verdict.

The Third District Appellate Court didn’t exactly meet the moment. Right out of the gate the Appellate Court shrugged. The opinion noted that the mere fact the guy in charge of things is unconscious is not quite enough. Instead, the defendant has to show he was somehow prejudiced. The Appellate Court then noted that while the video was being played there were no objections made. Does the Appellate Court really wish to suggest that as long as the judge isn’t called upon to actually do something he can continue sleeping? I hope not.

And the opinion only gets worse. In a concurring opinion, one of the Appellate Judges ignores the issues and takes a cheap shot at defense counsel – declaring the lawyer waited to object in an effort to “sandbag” the judge. Good Christ. A judge falls asleep during a murder trial and and you go after the lawyer?

There was one bright spot in an otherwise immensely disappointing decision. In a dissent, Judge O’Brien noted that when a judge is asleep, that judge, by definition, loses control of his courtroom. He can’t rule on objections or stop any objectionable conduct. O’Brien argued that a sleeping judge threatens a defendant’s right to a fair trial. Additionally, O’Brien noted that by falling asleep during testimony, the judge in effect, is telling the jury that testimony is not important. But one judge out of three doesn’t carry the day. The trial court verdict was affirmed. Not a great day for the Third District.