Two recent decisions reflect remarkably different values in how trials are conducted – one addressing whether we need judges who are awake and alert, the second whether it is permissible to attack defense counsel in a criminal case as a truth-twisting purveyor of information.

Let’s start with the judges.  On November 27, 2019, a unanimous Kansas Supreme Court held it was not “structural error” – an error that goes to the “entire conduct of the trial from beginning to end[]” and thus depriving defendants of the “basic protections” of a criminal trial.  Neder v. United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S. Ct. 3101, 92 L. Ed. 2d 460 [1986]).  The decision is State v. Johnson, 2019 Kan. LEXIS 340.

What was the reasoning?  There were two components, the first being in effect ‘well, no other court has called this structural error, so we won’t either.’  The second was that the reviewing court could  not find a moment where the Judge did not appear to be less than engaged:

The record of the time-period in question does not suggest an absent judge—quite the opposite. The court did not read its preliminary jury instructions until 3:30 that afternoon. After the judge administered the lengthy preliminary instructions—15 pages in the trial transcript—the court instructed the parties to give their opening statements. Following opening statements, the court asked the State to call its first witness.

During the State’s direct examination, the State offered five exhibits—all of which the trial judge admitted into evidence. When the State finished its direct examination, the judge called upon Johnson to cross-examine [*12]  the witness. During that cross-examination, the State lodged one objection. The court promptly sustained the objection. After the judge sustained the objection, the defense ended its cross-examination and the judge asked the State for any redirect. The State conducted a brief redirect, and the court recessed for the day. So while the trial transcript contains no notation of when, precisely, the judge was nodding off, it also does not show any lapses of judicial oversight during the window of time in question.

2019 Kan. LEXIS 340, *11-12.  Restated in plain English, when there were objections or procedures needed [e.g. ‘call your next witness’] the judge did respond.  Presumably this is a credibility determination – there was no real or substantial nodding off.  But there is a second point here – it views the role of judge as reactive, a person who answers to the word “objection.”  There is no vision of the need for a judge to be proactive – to be alert and step in sua sponte if matters were to go off the rail.

This notion of the judge as being needed only to be responsive to requests form counsel is not limited to this case.  A LEXIS search with the terms identified 27 cases; and in one that same philosophy was made manifest:

Because the evidence in this case was overwhelming and the parties did not call upon the trial judge to make any evidentiary rulings at a time when the judge was asleep, the judge falling asleep was harmless error.

People v. Sheley, 2017 IL App (3d) 140659, P21, 90 N.E.3d 493, 498, 2017 Ill. App. LEXIS 669, *12, 418 Ill. Dec. 335, 340.  Put more simply, the right to an awake judge depends solely on whether attorneys were themselves awake and responsive to error.

Only one of the 27 cases raised a more cautionary note.  “We caution, however, that having a judge or juror sleep during a trial could be structural error.”  In re Pers. Restraint of Caldellis, 187 Wn.2d 127, 145, 385 P.3d 135, 145, 2016 Wash. LEXIS 1369, *19

The sleeping judge phenomenon is not new – a reported decision from 1901 discusses the problem but – there, in a civil case – again finds no substantial harm and puts the onus on counsel.  .

Conceding the irregularity of the presiding judge going to sleep while a trial is progressing, we cannot hold the mere circumstance of his having slept four or five minutes reversible error. If the judge was asleep, as certified, counsel must have known it, and knowing it they should either have suspended the examination of the witness then testifying until the judge awoke, or have awakened him by calling his attention, in a voice sufficiently loud to awake him, to the fact that the trial was progressing. Counsel did neither,

Chicago C. R. Co. v. Anderson, 193 Ill. 9, 12-13, 61 N.E. 999, 1000, 1901 Ill. LEXIS 2618, *5.

What is the upshot?  If judges need only be alert when counsel does object, then maybe these decisions make sense.  But if the role of the judge is greater – to be alert and to step in when necessary – then the focus of these cases is wrong.  Sleeping judge, judge on the telephone, judge off the bench – does not  any of those deprive an accused in a criminal case of the “basic protections” of a civil trial?

Now, on to ‘lying lawyers.’  In what is unquestionably one of the most over-the-top and unprofessional closing arguments ever given in a criminal trial, the following occurred:

Among the several blatantly improper comments the prosecutor made in his closing argument to the jury in Oscar Fortune’s murder trial, he claimed, “My job is to present the truth,” and said, “if you look in the . . . Code of Laws . . . [, I] have to say what the truth is.” “On the other hand,” the prosecutor told the jury, “the defense attorneys’ jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to –without regard for the truth.” The prosecutor explained that if he—the prosecutor—believes “somebody else did the crime,” then he must “dismiss it.” “And [if] I know the person  has done something that I think the facts show they’re guilty of, then I can’t [dismiss] it. I have to go forward with it.”

Fortune v. State, 2019 S.C. LEXIS 115, *1-2 (December 4, 2019).

While much of the court’s repudiation of this conduct focused on the prosecutor self-declaring as the apostle of truth, the South Carolina Supreme Court also condemned the attack on defense counsel:

The assistant solicitor in this case also improperly characterized the role of defense counsel. We find this misconduct is also inexcusable. After claiming his role “to show the truth,” the assistant solicitor told the jury,

On the other hand the Defense attorneys’ jobs are to manipulate the truth. Their job is to shroud the truth. Their job is [to] confuse jurors. Their job is to do whatever they have to — without regard for the truth — to get a not guilty verdict.

Courts have universally condemned this type of statement by a prosecutor. As the United States Court of Appeals for the Ninth Circuit has stated,

[It is not] accurate to state that defense counsel, in general, act in underhanded and unethical ways, and absent specific evidence in the record, no particular defense counsel can be maligned. Even though such prosecutorial expressions of belief are only intended ultimately to impute guilt to the accused, not only are they invalid for that purpose, they also severely damage an accused’s opportunity to present his case before the jury…

Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir. 1983) (per curiam);

2019 S.C. LEXIS 115, *12-14.  The South Carolina Court went on to cite additional caselaw condemning such tactics, tactics that have no place in a trial.

So – one decision supportive of the right to a fair trial, decided on the facts; and a second that says a little napping is no problem unless something really bad happens while the judge is dreaming.