At his sentencing hearing on June 28, 2002, Byron Case accused Judge Charles E. Atwell of having dozed off a number of times during the course of the trial, and requested a mistrial:

"If for no other reason than to make it a matter of record, I would like to bring to the attention of the Court an issue of serious concern.

"During the course of my trial, some people made my attorney, Mr. Lance, aware that they witnessed Your Honor repeatedly nodding off to sleep. Mr. Lance never said a word of this to me until I later confronted him about it. By that point, the trial was already over, however. Then, to compound the matter, he never mentioned this as either an amended version of his motion for new trial or as an addendum to that document.

I feel this is one of the examples of my counsel's, frankly, ham-handed way of dealing with my defense and of what I feel is a blatant disregard for my right to fair trial. I don't think it's any excuse of professional embarrassment that can possibly be acceptable when dealing with the issue of deciding people's lives.

"The only viable resolution that I see, and I hope that you see as well, sir, is that at this point I think the best thing would be to overthrow the jury's verdict and declare a mistrial." ¹

Case did not witness this himself, and did not provide the names of anyone who had supposedly witnessed and told him of it. Neither Prosecution nor Defense cousel witnessed such an occurence, and no bailiff, juror, nor court observer (there were three newspaper reporters at the trial) had seen such a thing. Judge Atwell found Case's motion to be unsupported by evidence and without merit.

A few months later, Case's supporters published a number of "affidavits" in which they claimed to have seen the Judge "nod off" during the trial. It is significant that the only individuals who made such statements were friends of Case or friends of Case's mother; there was not a single disinterested third party who attested to such events. It is even more significant that one of the affiants in this matter had been ejected from the trial after its first recess, barely an hour into the trial, having spent no time observing Judge Atwell's behavior. It is further significant that one affiant was a witness for the defense, and was only in the courtroom during the few minutes of her own testimony; it is unlikely that she would have spent much time observing others (especially the judge) while giving testimony and responding to questions from both defense and prosecution counsel.

Although Case has since made no appeals based on this spurious claim, and his supporters have since removed the claims and supporting statements from their website, they still occasionally mention it when attempting to argue their case.