Jim Dey: Appeals court decides to let sleeping judge lie

Jim Dey: Appeals court decides to let sleeping judge lie

When the sandman has his opponent pinned up against the ropes and he's pounding him with one body shot after another, what choice does a fellow have?

It's time to bow to the inevitable.

At least that's what Jeff O'Connor thought when he found his head nodding, his eyes closing and his breathing settling into the smooth rhythm of sleep.

Unfortunately, at the time, O'Connor — more properly known as Whiteside County Circuit Judge Jeffrey W. O'Connor — was presiding over a jury trial in a high-profile murder case. In fact, he was hearing — or at least he was supposed to be hearing — testimony from a police officer who was describing security camera video footage linking the defendant to a multiple murder.

"Judge?" asked the defense lawyer.

"Judge O'Connor?" the defense lawyer inquired again.

"Judge, could we get the lights back on?" came another voice, this time from the prosecutor.

"Hmmmmm," Judge O'Connor finally responded after being prodded by the bailiff.

A few moments later, one of the lawyers suggested that "this might be a good time for a break for lunch."

"Excellent time," Judge O'Connor replied.

If Judge O'Connor was embarrassed about falling asleep, he hid it well. He denied a defense motion for a mistrial based on his nap, and he made no effort to hide his anger when the defense suggested he had fallen asleep on "multiple occasions."

"This phrase here 'on multiple occasions' I regard as gratuitous because nowhere in the record did the defense make any objections whatsoever to multiple occasions of what they perceived," he said.

His anger at the defense was nothing compared with his resentment of news reports about his snooze.

He complained that the press "had a field day" with the news and that the reporting was "a little bit out of bounds" and "disgusting."

That settled that. The defendant, Nicholas T. Sheley, was found guilty.

The evidence against him was overwhelming. So without any other viable issue to challenge Sheley's guilt, the defense sought to overturn his conviction on the grounds that the judge had slept during a small part of the trial (the judge's position) or repeatedly (the defense position).

What happens when a judge falls asleep? Is that — by itself — sufficient grounds to overturn a conviction?

Judges on the 3rd District Appellate Court recently ruled — in a 2-1 decision — that it is not.

Justice Daniel Schmidt said a trial judge has to do more than saw a few logs to justify overturning a guilty verdict. He found Judge O'Connor's nap to be "harmless error" because it was not a mistake "of such gravity" that it "infected the fundamental fairness of the trial."

He held that a defendant needed to "establish prejudice" to make a credible claim for a new trial.

"It is undisputed that neither party called upon the judge to make any evidentiary rulings during that time. Additionally, the evidence of defendant's guilt was overwhelming," he wrote in his decision.

There are limits on just how lax judges can be during a trial. In a 1996 case, the appellate court overturned a defendant's conviction in People v. Vargas because the "judge left the bench during a jury trial to take a phone call while a witness continued testifying."

The court held that the judge's decision to remove himself from the proceedings denied the defendant a fair trial and undermined "the integrity of the judicial process." But Justice Schmidt said "the policy concerns underlying the holding in Vargas do not apply in situations ... where a judge falls asleep on the bench."

What's the difference?

He said that "unlike physically leaving the bench, which is always a voluntary act, falling asleep is often inadvertent" and, as a consequence, is not as easy to deter as a judge leaving a courtroom while the trial is in session.

But dissenting Justice Mary Kay O'Brien disputed the notion that there's a difference.

She insisted it should be reversible error because "the judge falling asleep" is "tantamount to a judge physically leaving the bench."

"A judge cannot be physically active on the bench when he is asleep," she wrote.

(Justice O'Brien's blanket statement regarding inactivity did not contemplate heavy snoring or sleep walking. It seems clear, however, a judge would violate the Vargas rule if he left the courtroom while sleepwalking.)

Further, she contended that the judge's inattentiveness surely was witnessed by jurors.

"I believe it is highly unlikely that the jury did not notice the judge falling asleep during Officer Cirimotich's testimony. Counsel called for the judge several times with no response. Defense counsel indicated that the judge was not roused until his clerk poked him. 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," O'Brien asserted.

Jim Dey, a member of The News-Gazette staff, can be reached by email at jdey@news-gazette.com or by phone at 217-351-5369.

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Mr Dreamy wrote on November 02, 2017 at 8:11 am

When is Jim Dye going to write about our local judge who is accused of, and has admitted to being a thief? Judge Steigmann, Dye's buddy, is accused by the Supreme Court Judicial Inquiry Board of stealing state property, and has admitted to that stealing to Mary Shenck.

Coverup. Sad.