The Lawyer Woke Up Too Soon

As in so many things, the law on this is clear but nearly toothless.
The criminally accused have a right to counsel.  More, they have a right to the effective assistance of counsel.
That's the "clear" part. The "nearly toothless" part is that the standard is so preposterously low.  In March of last year, I explained it this way.

The Sixth Amendment guarantees not just the right to counsel, but also the right to the effective assistance of counsel.  That should mean something like actual quality representation.  It doesn't.  The Supreme Court set out the test of effectiveness in Strickland v. Washington.  It started from a premise close to integrity.

An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair.

And then it eviscerated it.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. Cf. Engle v. Isaac, 456 U. S. 107, 133-134 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." See Michel v. Louisiana, supra, at 101. There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, 690 The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 343 (1983).

That's all a fancy way of saying that pretty much anything that can be imagined to be strategy or tactics, however ill-conceived (a nice way of saying "stupid") or inadequately accomplished (a polite way of saying "performed incompetently"), will suffice.  The basic test: If a mirror is held up to the lawyer's nose and it fogs up, the lawyer was effective.

But even if not, the lawyer wasn't ineffective unless there's a reasonable probability that the outcome would have been different.  Got that?  The Court offered several formulations of that rule, but here's the starkest.

An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.

And you know, it has to be that way.  Because if we actually demanded that counsel do their job properly, then the criminally accused would have a hard time finding lawyers.  And they might not trust the incompetent ones.

Counsel's performance and even willingness to serve could be adversely affected. Intensive scrutiny of counsel and rigid requirements for acceptable assistance could dampen the ardor and impair the independence of defense counsel, discourage the acceptance of assigned cases, and undermine the trust between attorney and client.

(You really can't make this stuff up unless you sit on the Supreme Court.)

So what does that mean in the real world?  It means that the lawyer fucking up is trivial.  What matters is proving that there's a reasonable probability you'd have done better with a lawyer who was doing everything right.  And while the Supremes have consistently said that "reasonable probability" doesn't mean "probably," they've also said that it just about does.
Except, you know, there are those extreme cases.  The ones where the courts just had no choice but to find prejudice.  Hell, they had to assume it.  Because see there's this other case that says when you're completely deprived of counsel, or when your lawyer doesn't function as a lawyer, that's automatically reversible.  Because, really.  What?  Not so?

Prejudice has not been presumed for claims of denial of effective assistance of counsel due to counsel's alleged impairment because of alcohol, drug use, or a mental condition. See, e.g.,Burnett v. Collins, 982 F.2d 922, 928-30 (5th Cir.1993) (alcohol abuse); Berry v. King, 765 F.2d 451, 454 (5th Cir.1985) (addiction to illegal drugs), cert. denied, 476 U.S. 1164, 106 S.Ct. 2290, 90 L.Ed.2d 731 (1986); Buckelew v. United States, 575 F.2d 515, 521 (5th Cir.1978) (poor health); Dows v. Wood, 211 F.3d 480, 485-86 (9th Cir.) (Alzheimer's disease), cert. denied, ___ U.S. ___, 121 S.Ct. 254, 148 L.Ed.2d 183 (2000); Smith v. Ylst, 826 F.2d 872, 875-76 (9th Cir.1987) (mental illness), cert. denied, 488 U.S. 829, 109 S.Ct. 83, 102 L.Ed.2d 59 (1988);Hernandez v. Wainwright, 634 F.Supp. 241, 245 (S.D.Fla.1986) (intoxication during trial), aff'd,813 F.2d 409 (11th Cir.1987).

That's from Judge Rhesa Hawkins Barksdale's majority opinion from a case in the Fifth Circuit.
So when your lawyer has Alzheimer's?  Well, sure, but see maybe there was a cogent moment.  So prove that the Alzheimer's mattered and we'll give you a new trial.  You can do that, can't you?  What's that you say?  You can't prove it?  Oh, too bad.  Better luck next time.
That Fifth Circuit case is Burdine v. Johnson.  By a 2-1 vote, the panel said that sure, it's a bad thing for counsel to sleep through a capital murder trial.  But really.

Of course, our rejecting Burdine's presumptive prejudice claim should not be understood as condoning sleeping by defense counsel during a capital murder trial (or any other trial, for that matter). Again, we hold only that, under the specific circumstances of this case, in which it is impossible to determine — instead, only to speculate — that counsel's sleeping was at a critical stage of the trial, prejudice cannot be presumed; the Strickland prejudice analysis is adequate to safeguard the Sixth Amendment guarantee of effective assistance of counsel.

OK, the good news (at least for Calvin Burdine) was that the 5th Circuit then took up the case en banc, and with the whole court voting reversed the panel.

The State suggests that because Cannon was physically present in the courtroom, his dozing constituted a form of performance that should be subjected to prejudice analysis. The State maintains that it is impossible to distinguish between sleeping counsel and other impairments that nevertheless have been subjected to prejudice analysis. We disagree. An unconscious attorney does not, indeed cannot, perform at all. This fact distinguishes the sleeping lawyer from the drunk or drugged one. Even the intoxicated attorney exercises judgment, though perhaps impaired, on behalf of his client at all times during a trial. Yet, the attorney that is unconscious during critical stages of a trial is simply not capable of exercising judgment. The unconscious attorney is in fact no different from an attorney that is physically absent from trial since both are equally unable to exercise judgment on behalf of their clients. Such absence of counsel at a critical stage of a proceeding makes the adversary process unreliable, and thus a presumption of prejudice is warranted pursuant to Cronic.

Of course, the decision wasn't unanimous.  (It was 9-5.)  But even the 9 wouldn't give it all. 

As in Russell, we decline to adopt a per se rule that any dozing by defense counsel during trial merits a presumption of prejudice. Our holding, that the repeated unconsciousness of Burdine's counsel through not insubstantial portions of the critical guilt-innocence phase of Burdine's capital murder trial warrants a presumption of prejudice, is limited to the egregious facts found by the state habeas court in this case.

Of course, Calvin Burdine isn't the only guy who's had a lawyer sleep through his case.
Up in Michigan, for instance, there was Joseph Muniz.  His situation is different than Calvin Burdine's because he wasn't sentenced to die.  (Michigan has no death penalty, and anyhow the guy Muniz is supposed to have shot didn't die.)  Still, it's no bagatelle.

Muniz is currently incarcerated in Michigan. In his trial held in the Circuit Court for Wayne County, Michigan, he was convicted of assault with intent to commit murder, felon in possession of a firearm, and felony firearm. Muniz was then sentenced as a second habitual offender to 29-1/2 to 60 years for the assault with intent to commit murder conviction, to run concurrently with a sentence of 40 to 60 months for the felon in possession of a firearm conviction. He was also sentenced to a consecutive term of two years for the felony firearm conviction.

I'm not a Michigan attorney, and I don't have any idea of how much time Muniz will actually have to serve, but it's substantial.  And, in any event, his lawyer dozed.  
Ah, but not enough.

Muniz testified in his own behalf, the usual way, it seems.  You know, his lawyer asked questions and Muniz answered.  Then it was time for cross-examination.  And well, asking questions can wear a fellow out.  So during the cross-examination of Muniz, counsel took a nap.
Really, it could happen to anyone.
But it shouldn't.  Really.  The 6th Circuit was clear about that.  His lawyer did a bad.

While no evidentiary hearing has been held at the state or federal level on this claim, by putting forward the affidavit of a juror who witnessed Muniz’s attorney sleeping Muniz has made a sufficient showing that the standard of conduct by his attorney fell below the objective standard of reasonableness. There is no suggestion in the government’s brief, nor could there be, that Muniz’s attorney fell asleep at trial because in his “reasonable professional judgment” it was the best course of action.

Glad we got that cleared up.  Sleeping wasn't a reasonable trial tactic.  But then.
As it happens, there are two ways Muniz could have gotten relief.  
He could have proved that his lawyer slept through a "substantial portion" of the trial.  But apparently cross-examination of the defendant just isn't substantial enough.  Counsel just woke up too soon.  Damn.
So Muniz was stuck with the other way.  He had to prove prejudice.  And there it is again.

Muniz, however, cannot show prejudice from his attorney’s deficient performance. “To establish prejudice, [Muniz] must show that a reasonable probability exists that, but for counsel’s deficient performance, the result of the proceedings would have been different.”

And how do you do that again?  Of course, by retrying the case.  But you can't do that because you can't prove that retrying the case with an awake lawyer had a fair chance of making a difference because you can't get the chance to retry the case with an awake lawyer because you . . . .
Fortunately, nobody gives a fuck about whether any of this was fair.  Nobody's interested in whether the system operates as it should.  All anyone gives a damn about is whether Muniz got convicted.
Because finality and all that.
And Joe Muniz?  Hell, at least they aren't going to kill him. 
Oh, yeah.  Did I mention that counsel had been using cocaine?

H/t Micah Gates at the 6th Circuit Blog 

Resting up

What is it with these folks who snooze at death penalty trials? Sure, the trials aren't like TV dramas. They're slow and often boring with a lot of not terribly articulate folks speaking in great detail about matters of what can seem like stultifying trivia. ("Patrolman Smith handed me the bag, I signed my name to the chain-of-custody slip attached to it, signed it right below what looked like Smith's name, then I carried it to the property room and gave it to Sergeant Jones who I watched sign the slip and then put the envelope in the safe." That sort of thing, which can go on for four or five witnesses and take the better part of an hour in some cases.)

But still. Sleeping?

I want to talk about Calvin Burdine and Joe Frank Canon and George McFarland and John Benn. I want to talk about Arif Majid and Juror No. 1. And I want, especially, to talk about Judge Doug Shaver and Judge Kathleen Sutula.

Burdine and McFarland ended up on death row after their lawyers (Canon and Benn) slept through substantial portions of their trial. Both cases were tried before Judge Shaver in Houston, Texas, who explained to a reporter, in the context of McFarland's case that

The Constitution says everyone's entitled to the lawyer of their choice, and Mr. Benn was their choice. The Constitution doesn't say the lawyer has to be awake.

Shaver can't have been too surprised by Benn's sleeping. According to an article in the Los Angeles Times in July 2000, Shaver explained,

"I knew John Benn. I knew he wasn't competent," Shaver said in a courthouse interview in late June. The judge said Benn had the appearance of "a heavy drinker. . . . His clothes looked like he slept in them. He was very red-faced; he had protruding veins in his nose and watery red eyes. . . . I can't imagine anyone hiring him for a serious case."

Benn himself said,

I'm 72 years old. I customarily take a short nap in the afternoon.

After years of struggling, Burdine got a federal judge to agree that when your lawyer sleeps through your trial, it's like you had no lawyer at all and you're entitled to a new trial. Although a panel of the Sixth Circuit disagreed, the entire court ultimately overruled them in a 9-5 vote.

So far, McFarland hasn't been so lucky.

That extra lawyer may have made a crucial difference. Although he was young, and specifically appointed to assist Benn, not replace him, he ended up trying almost the whole case by himself. And though he made some efforts to wake Benn, he eventually gave up the effort to concentrate on the trial.

But the Texas Courts have said that no matter what Benn did, McFarland had that other excellent lawyer, and that's enough. In fact, he may actually have wanted Benn to sleep:

We might also view Melamed's decision to allow Benn to sleep as a strategic move on his part. At the new trial hearing, Melamed stated that he believed that the jury might have sympathy for appellant because of Benn's "naps."

So, at least, said the Texas Court of Criminal Appeals.

McFarland sits on death row in Texas. The federal courts are next for him.

Arif Majid has a different story. His lawyer didn't sleep through his death penalty trial (he got life) - Juror No. 1 did. Judge Sutula, who tried the case, knew it but did nothing about it. Let's consider the difference, for a moment, between a sleeping lawyer and a sleeping juror.

The sleeping lawyer cannot make decisions about the evidence. He can't decide to object or not. He can't decide whether to cross-examine based on what a witness said, because he doesn't know what the witness said. He is, in every meaningful respect, not present. The sleeping lawyer makes an unfair trial because the adversary system under which we operate collapses. There's just a one-sided presentation. The trial shouldn't count because it wasn't fair.

A sleeping juror isn't listening to the evidence. He cannot weigh it because he doesn't know what it was. He cannot decide whether the witness is lying or telling the truth or maybe just confused because he never observed the witness. His vote is a coin toss and his verdict shouldn't count because it can't have properly been voted by the juror who, in effect, might as well have stayed home.

They didn't put it that way, but that's what the Eighth District Court of Appeals said last week. And good for them. But here's what the Judge Sutula, who tried the case, said.

I saw it. So what. Let him sleep. You guys picked this jury, I didn’t.

Got that?

One judge thinks your right to a lawyer is satisfied even if the lawyer sleeps through the trial. Another judge thinks its OK if the jury sleeps through the trial.

I don't know either Judge Shaver or Judge Sutula. In fact, you now know absolutely everything I do about them. Perhaps they have, in other cases, demonstrated themselves jurists of the highest wisdom and integrity, paragons of the profession, virtually the Platonic ideal of Judge. But you gotta wonder.

Oh, you should wonder about this, too. Both Texas and Ohio elect judges.