The state's judicial conduct committee is now looking into claims that Rockingham County Superior Judge Patricia Coffey slept during a trial that sent a man to jail for at least 23 years.Judge Coffey disputes the allegation. She has categorically denied ever sleeping in court during her 15 years on the bench.But a poll of jurors by the public defenders office found two who said Coffey did nod off during the June trial. And since then, more people have come forward with claims that Coffey slept during other proceedings. New Hampshire Public Radio's Josh Rogers spoke to watchers of judicial conduct and filed this report.
Sleeping judges may seem the stuff of an editorial cartoon or a blues lyric……..But they do surface, in courts and in judicial discipline proceedings nationwide……While the results of those proceedings vary, experts on judicial conduct tend to agree on a basic point.…….
"Sleeping judges……Well, it's not a good thing to do……."
That's Harvard Law School Professor Andrew Kaufman…He's studied judicial ethics for nearly half a century and advised the Massachusetts Supreme Court on conduct matters…..Kaufman adds though, that there's sleeping on the bench and there's sleeping on the bench…..
"I guess I would say that if a judge once fell asleep briefly and if the judge would take care of the problem, it’s the sort of thing an administrative judge would handle, if it was once….Could it be ground for an appeal?…..Yeah…..it could be grounds for an appeal….And it would have to be how much or what is the impact? And how does it look? Has it affected the course of the trial?"
Melissa Spinner, the wife of the man sent to prison -- and the person who filed the complaint against Judge Coffey -- insists that Coffey's demeanor compromised her husband's right to a fair trial…..Spinner further insists that the sleep went far beyond an isolated incident.
"It happened every day of the trial --opening arguments, closing arguments, in between testimony, at periods of the testimony. It happened quite often."
Even so, determining the context of the purported sleeping in this case may not be easy……No mention of it appears in the trial record…..The defense never raised the issue…..And the prosecution says if it happened they didn't notice it……Most lawyers agree that fact presents no small barrier to getting a new trial.
"Somebody has to call it, somebody has to call it into the record….somebody has to alert the court reporter that the judge is asleep and that takes a little bit of guts."
Jack King is director of public affairs for the National Association of Criminal Defense Lawyers.……
"Somebody has to say for the record, 'I hate to interrupt here but the judge appears to have fallen asleep'….If he is just leaning back with his eyes closed, he will jump up and say I am not asleep. But if he is asleep he's not going to say anything -- and it will go into the record and the court of appeals will have to decide whether or not he was asleep during some non-consequential testimony or some crucial testimony."
But even if sleep were reflected in the record, there's little apparent precedent for securing either a reversal or new trial on that basis……The fifth US circuit court did grant a retrial in a Texas death penalty case based on the defendant's lawyer nodding off in court……But at the same time, other appeals courts have upheld verdicts in cases where it was undisputed that judges had slept……The only example the American criminal defense association could provide of a judge's sleeping prompting a rehearing was from a 2002 case -- also out of Texas…… Again Jack King.
"The trial judge was to decide whether to revoke the defendant's probation and if revoked what penalty to access. Well, the Texas Court of Appeals concluded that because he fell asleep and it was confirmed by the prosecutors and it was confirmed by the prosecutor that he deserved a new hearing…..
This example differs from the Spinner case in two key respects…..First, the hearing in question didn't involve a jury, and second……the judge's sleeping was corroborated by the prosecution. Should the Judicial Conduct committee choose to investigate the complaint against Coffey, and finds she slept, such conduct could,….pending further court proceedings…..be added to the record and thus become an additional grounds for appeal……As it stands, the conduct committee has given Judge Coffey until January 26th to respond to the allegations…..At that time, the committee could dismiss the complaint, or order a public proceeding where witnesses could testify and Coffey could defend herself……
