Here’s an important tip: the Court of Appeal for Ontario, Canada, has ruled that lawyers who notice that their trial judge is sleeping must awaken him or her at the time and object, rather than waiting to raise the issue on appeal.
The case, Leader Media Productions v. Sentinel Hill Alliance, involved a complex financing arrangement, the details of which are neither relevant nor, obviously, very interesting. After Sentinel Hill lost, it argued on appeal that the judge had not sufficiently explained his decision, that he had not heard oral argument, and, in an argument raised for the first time on appeal, that he "was unable to follow much of the trial evidence" because he was often sleeping.
The appellate panel said it would accept the new evidence showing that "the trial judge fell asleep frequently but for only very brief periods of time." But it also ruled that this evidence did not help Sentinel because its counsel had done nothing at the time for tactical reasons:
Instead of confronting the trial judge, after discussions among appellants’ counsel . . . they made a deliberate decision not to raise the issue[, but rather] to "wait and see how things played out". Presumably, if the trial result was in their favour they would do nothing; if not, they would have this additional evidence to use as a basis for appeal arguing that they were denied the right to a fair trial.
The court held that this was not appropriate and that, instead, parties must wake up sleepy judges and raise an objection at the time.
The parties apparently found only two prior cases involving sleeping judges, which is a little surprising since there have been many others, as they would have known had they only been readers of Lowering the Bar. For example, respondents could have found a 2007 decision that repeated "nodding off" did not warrant a retrial because for a judge, being "constantly attentive is not a fundamental requirement." And appellants could have found a study reported in Sleep magazine analyzing 15 similar cases, finding that "[in] 10 cases, judicial sleepiness resulted in a retrial . . . ." See Grunstein & Banerjee, "The Case of ‘Judge Nodd’ and other Sleeping Judges – Media, Society, and Judicial Sleepiness," 30 Sleep No. 5 at 625 (2007). But they didn’t.
The study is absolutely worth reading. The title case involved Judge Ian Dodd of New South Wales, who had repeatedly fallen asleep during civil and criminal trials. This included a drug-smuggling case in which the jurors said they had nicknamed him "Judge Nodd," and commented on his loud snoring. Other reported cases of judicial sleepiness included:
A Nigerian judge on the International War Crimes Tribunal who had "regular sleep episodes" during a 2001 prosecution.
An Indiana case rejecting a defendant’s appeal because the only evidence of sleeping was one exchange in the transcript: "Am I boring you today, Your Honor?" "No, just resting my eyes."
A prior Ontario case in which a criminal defendant got a new trial after showing that the judge had fallen asleep during his cross-examination. His defense lawyer had boldly "dropped a 2136-page copy of the Criminal Code onto the judge’s desk to get his attention," later noting that "His Honour was visibly stirred from his slumber."
A report that Justice Ginsburg fell asleep during oral argument in a 2006 redistricting case. Justices Souter and Alito reportedly "looked at her, but did not give her a nudge."
The study reported that sleepy judges are often treated deferentially. For example, Justice Roderick Meagher (also of New South Wales), was said to be "known for his ability to nod off on the bench," but apparently his competence was never questioned. In a speech in honor of the judge’s retirement in 2005, the local bar association’s president referred to this by saying that Justice Meagher "brought colour to the Court of Appeal, but not, if I may say so, . . . much movement." He also claimed that the justice had once warned him, "Mr. Harrison, I’m going to sleep now, and I don’t want you to be here when I wake up."
Link: Ontario Star