The Kansas Supreme Court has opined that a trial judge napping during trial is not grounds for a new trial. See here. It is not so bad as the headlines suggest -- the napping judge did not miss any objections. But the analysis is curious in some respects. There is an interesting review of the reported cases about judges sleeping during trial and cases where the judge is absent for parts of the trial. The issue here was whether the napping judge created a structural error requiring reversal; that view was rejected. The theory seems to be that the short nap was misconduct, but not actually or structurally prejudicial: "An isolated incident of a trial judge nodding off during a portion of testimony where no objections were made does not create structural error requiring automatic reversal." Short nap, no remedy. It is misconduct -- and the response to the misconduct is? Is it just the embarrassment of a published opinion about the nap? Is there anything more? I don't know. In general, judicial misconduct remains cloaked in secrecy. Letting the public know when a judge has misbehaved will destroy confidence in the court system. And lawyers are limited in what they can say about a judge, Back to the case.
"Just like a driver who feels the overwhelming physical need for sleep should immediately get off the road, a responsible judge charged with overseeing a criminal trial who feels the need for sleep, and can no longer successfully put it off, has a responsibility to call a halt to the proceedings. But just as not every dozing driver causes an accident, not every instance of a dozing judge must lead to an automatic reversal." "Physical need for sleep" as opposed to other kinds of need for sleep? A psychological compulsion does not count? The last sentence suggests that for sleepy drivers what is punished is causing the accident, while one has a responsibility to stop driving it is not a crime to drive and doze (absent accident). Is that the law in Kansas? Isn't it the case that impaired driving -- which would include, I think, driving while so sleepy that one naps at the wheel of a moving vehicle -- is the crime, or a crime, and a serious one? I know the Court's point is more along the lines of 'the napping did not cause any prejudice'. Not quite what it says though.
I await the coming cases setting out the guidelines for determining when and how much napping or sleeping on the bench is a problem. Sleeping through an objection? (But won't that get shuffled off to consideration of prejudice in missing the objection?) A whole day, but without objections? I also await guidelines for how the defense counsel should wake up the judge. The defense has the burden of remedying everyone's mistakes, so that is where the burden will fall.
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