Judge/Jurors Alleged Sleeping During Trial Cases

In People v. Silagy, 101 Ill. 2d 147, 461 N.E.2d 415, 77 Ill. Dec. 792 (1984), our supreme court found the defendant forfeited, on direct appeal, consideration of his argument he was denied a fair trial because a juror was seen sleeping. Silagy, 101 Ill. 2d at 170-71, 461 N.E.2d at 426-27. The court held a defendant who sees a juror sleeping has "a duty to call it to the attention of the court at that time." Silagy, 101 Ill. 2d at 171, 461 N.E.2d at 427. In Nix, the Third District, on appeal from the dismissal of a postconviction petition, applied Silagy and rejected the argument premised on the allegation that a juror slept during trial. Nix, 150 Ill. App. 3d at 50, 501 N.E.2d at 827. The court in People v. Donley, 314 Ill. App. 3d 671, 674, 731 N.E.2d 1260, 1263, 247 Ill. Dec. 252 (2000), concluded that a defendant's allegation that the trial judge was asleep for 15 minutes during the defendant's bench trial for first degree murder "sufficiently contained the 'gist of a claim for relief which is meritori us.'" This court refused to apply waiver despite the fact that the defendant and his counsel were aware of the sleeping judge yet did not raise the asserted error at the time of trial. Donley, 314 Ill. App. 3d at 674, 731 N.E.2d at 1263. We disagree with the ruling in Donley.