Two men who were each convicted and sentenced to more than ten years in prison will not be getting a new trial just because the judge repeatedly fell asleep during the first one, an Australian court ruled this week. The majority in the 2-1 decision said that the judge's tendency to doze during trial proceedings was "regrettable," but had not been shown to have resulted in a miscarriage of justice.
Judge Michael Grove, who wrote the majority opinion, conceded that the trial judge had not been "bright-eyed," in fact had repeatedly "nodded off," and "on other occasions, notably when he was heard to snore, was asleep in a real and practical sense." Nicely done. How about, "periodically displayed a level of consciousness that perhaps was not all it could have been"? Having covered the range of sleepiness standards, however, Judge Grove then ruled that it didn't matter on these facts, finding that for a judge to be "constantly attentive is not a fundamental requirement."
Dissenting judge John Basten believed, however, that the men should be given a new trial. Noting evidence that the jury was distracted by the judge's snoring while one of the defendants was presenting his evidence, he found it a reasonable possibility that the judge's conduct -- or lack of conduct -- could have influenced the jury. Unless the sleepytime periods in question were "insignificant," he wrote, he believed it was better as a general matter to require a trial judge to be "present and conscious" during the entire criminal trial.
The trial judge in question retired in 2005, a year after the trial, and was later diagnosed with sleep apnea. His case was one of 15 cases of "judicial sleepiness" examined in a paper published in May in Sleep, the professional journal of the American Academy of Sleep Medicine. (Other cases allegedly involved the War Crimes Tribunal at The Hague, and the U.S. Supreme Court.) According to a summary on the University of Sydney's website, the paper "asserts that occupational sleepiness in white-collar monotonous workplaces, such as courtrooms," is not uncommon. When it strikes behind the bench, said a professor quoted in the summary, it may be a serious problem.
"Clearly judicial sleepiness threatens the integrity of the judicial system," he said, "and there would seem to be a need to develop preventative or monitoring strategies in judicial systems to prevent it occurring."