How Long a Nap Is Ineffective Assistance of Counsel?
Jonathan H. Adler • July 30, 2011 11:15 am
If your defense attorney falls asleep during your trial, and you are convicted, do you have an ineffective assistance of counsel claim? That may depend on how long your attorney was asleep, and whether you can demonstrate prejudice. Yesterday, in Muniz v. Smith, the U.S. Court of Appeals for the Sixth Circuit denied a habeas petition alleging ineffective assistance of counsel because the defense attorney fell asleep while the defendant was under cross-examination. A courtroom nap, by itself, is insufficient to establish ineffective assistance of counsel unless the attorney is asleep for a “substantial portion” of the trial, and that could not be demonstrated here. Further, the defendant could not demonstrate he was prejudiced by his attorney’s nap.
volokh.com
Jonathan Adler (at Volokh): "How Long a Nap Is Ineffective Assistance of Counsel?" It's a good question, so if you have thoughts you might comment over at Volokh, where Adler discusses a new case on that issue -- one where the defense counsel fell asleep during the cross-examination of the defendant.
In every trial I've had that lasted over one week, someone fell asleep at least once, usually in mid-afternoon well into the trial. The strangest occasion was during a bench trial when the judge fell asleep. The opposing lawyer and I made eye contact, wondering what to do. IIRC, the other lawyer made an unusually loud throat clearing noise and the judge perked up.
legalethicsforum.com
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This [affidavit] alleges only that Muniz’s attorney was asleep for an undetermined portion of a single cross-examination. The record shows that Muniz’s attorney was not asleep for the entire cross since he objected near the end of the questioning. This is especially significant, given that the total cross-examination was fairly short, spanning only 26 pages of trial transcript. Muniz’s lawyer therefore must have only been asleep for a brief period. This is in contrast to [another case] in which the trial judge himself "testified that [defense counsel] 'slept every day of the trial.'"
He couldn't stay awake for the entire cross, no, but he did perk up there at the end...
loweringthebar.net |
