So ruled the US Court of Appeals for the Fourth Circuit last Friday:
UNC’s Jeff Welty provides the background:
In 2004, Nicholas Ragin was charged with federal crimes as a result of his alleged participation in a prostitution ring and a drug distribution operation. …
A Charlotte attorney named Nikita Mackey was appointed to represent Ragin. The case went to trial, Ragin was convicted, and he received a lengthy sentence. He appealed the sentence, but it was affirmed. …
Ragin then filed a post-conviction petition under 28 U.S.C. § 2555, which is the federal equivalent of a motion for appropriate relief. He alleged that Mackey had provided ineffective assistance of counsel because he slept through portions of the trial. The judge who had presided over the trial … ruled that Mackey had not provided ineffective assistance of counsel, and … denied the petition. …
The Fourth Circuit reversed. It found that the evidence that Mackey slept was “not disputed,” and … held that “a defendant is deprived of his Sixth Amendment right to counsel when counsel sleeps during a substantial portion of the defendant’s trial.”
In its opinion the Court quoted several witnesses, including one who described how:
[Government counsel] walked over to Mr. Mackey, and I remember that Mr. Mackey was sort of sitting back, leaning back in his chair with his left elbow on his left thigh, . . . and sort of with his chin resting on his fist, and [government counsel] held the document in front of him and he didn’t move, he sort of sat there. … Judge Conrad leaned into his microphone, because we were all sitting there and [Mackey] wasn’t moving and said, ‘Mr. Mackey’ . . . very loudly. [Mackey] jumped up and sort of looked around and was licking his lips and moving his mouth and looked sort of confused and looked all over the room except at [government counsel]. And after a few seconds, he saw [government counsel] standing there and looked at the document.”
Another witness, a juror, reported that she and other jurors had noticed Mackey sleeping:
“Frequently . . . almost every day . . . morning and evening. … We could see [Mackey] clearly, and we were facing [him] completely. [He] totally dozed off [with] his hand on the table and head down and did not appear to be alert at all. … [Ragin] would have to punch him . . . or kind of rouse him.
How common is it for a lawyer to fall asleep in court? More common than one might suppose. According to the Court:
Four other circuits have considered whether application of a presumption of prejudice … is warranted when a defendant’s counsel is asleep during trial. All of these circuits have held that prejudice must be presumed when counsel sleeps either through a “substantial portion of [a defendant’s] trial” or at a critical time during trial.
This is certainly bad news for lawyers who like to burn the candle at both ends, but it could have been worse. The Court made it clear that occasional “episodes of inattention or slumber” do not necessarily constitute ineffective assistence of counsel:
Whether a lawyer slept for a substantial portion of the trial should be determined on a case-by-case basis, considering, but not limited to, the length of time counsel slept, the proportion of the trial missed, and the significance of the portion counsel slept through.
