Illinois Judge Jeffrey O’Connor took a short nap during the presentation of evidence in the murder trial of Nicholas Sheley, charged with a notorious killing spree. At the 2014, trial, 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. The judge didn’t reply.
“Judge?” the defense attorney asked, according to a transcript. “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 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.
A divided Illinois Appellate Court panel held that as long as the judge was not sleeping 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 issue is not whether the judge missed something important. Its about the message it sends to a jury about the importance of paying attention and the seriousness of the proceeding.
And in its latest ruling, the state’s appeals court said 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.
Experienced trial attorneys will tell you that judicial napping is rare but sometimes happens during jury trials, when the judge serves more as referee than fact finder. I have come across it in civil trials but never in a criminal trial. I have seen lawyers intentionally push something off their desk to wake a judge up. My method is to cough loudly and I have heard other lawyers fake sneeze to wake up a nodding judge. But in a multiple murder trial? During the showing of the surveillance footage of one of the crimes? Its a bad message to the jury and for what judges are paid to preside over trials, they could stand up once in awhile and drink some coffee to make sure they are awake for the entire process.
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