Sleepy Judges: Winkin’, Blinkin’, and Nod

Every trial lawyer has their own story of a judge falling asleep on the job. Before I was called to the bar I was a law clerk for an elderly judge and would accompany him to court to take notes.

On more than one occasion I observed him nodding off during counsel’s tedious argument. During “tea” breaks in his chambers he would also rest his head on his chest for more than just a few minutes He retired at the mandatory age of 75 and went on to hold several high-profile government positions until he retired for the last time at the age of 85.

I’ve also heard stories of lawyers dropping large books on their podiums or the floor to awaken the sleeping judge who will decide their client’s fate.

Of course, the precursor to sleep is yawning and closing one’s eyes. That is fairly routine in long cases where a lawyer consistently meanders away from relevant evidence, or has the habit of repetition, a trait I abhor.

The “precursor” is only welcomed when it is opposing counsel who is causing the judicial condition.

Judge Ian Dodd, age 56, of the New South Wales District Court, endured a media frenzy when his judicial sleepiness was thrust into the spotlight in 2005. The allegations included incidents in 2002 when Judge Dodd fell asleep during a corporate fraud trial and a criminal matter involving weapons offences. In 2003 it was reported that Judge Dodd was sleeping and snoring during the evidence of a rape victim.

In 2004 Judge Dodd, now nicknamed Judge Nodd, fell asleep numerous times during a seven month drug smuggling trial. Defence counsel took to passing notes to the court clerk to gain her assistance to wake up the judge. This was a jury trial and several jurors admitted they were taken aback by the judge’s behavior. Judge Dodd sentenced the convicted offenders to 24 years in jail.

On appeal the accused argued that Judge Dodd’s demeanor was prejudicial to them as it signalled the Court’s disinterest in their evidence and their case.

The Court of Appeal agreed, but refused a new trial and merely reduced their sentences.

Later in 2004 Judge Dodd initiated a medical examination for himself that revealed he had sleep apnea and he began treatment that reportedly cured his condition.

But the media attention did not subside and eventually the State Judicial Commission launched an investigation.

As a result of now seven separate complaints a public hearing was scheduled and Judge Dodd also lost his driver’s license. The hearing was averted when Judge Dodd opted to resign, thus terminating the investigation.

Major changes were made to the legislation governing judges in New South Wales including granting power to the State Judicial Commission to compel a judge to undergo a physical or mental examination, even where there has been no complaint.

The story of Judge Dodd eventually faded from view with a last headline “Sweet Dreams as Judge Retires”. After eight years on the bench, Judge Dodd left with a $152,000 annual pension.

He’s probably out surfing on the Gold Coast!

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