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Friday, April 27, 2018

When crim pro hypos come alive

If you teach criminal procedure, you probably teach about the Sixth Amendment and the Strickland ineffective assistance of counsel standard.  Essentially, the Supreme Court has held that to find a Sixth Amendment violation for constitutionally bad lawyering you need to show deficient performance and prejudice

And, because we criminal procedure professors are teaching a bunch of future lawyers it is usually fruitful in class to play around with the concept of “deficient performance.”  What should be the constitutional floor for lawyering (recognizing that you have another person’s life and liberty on the line).

In my class I reference the “sleeping lawyer” case that arose out of the United States Court of Appeals for the Fifth Circuit around 2000.  Calvin Burdine was facing the death penalty with a lawyer who slept through some portion of the trial.  It was actually hard to tell how much he slept because the trial record was silent (silence being a direct consequence of the lawyer sleeping and not objecting).  A three-judge panel initially upheld the death penalty, but after columnist Bob Herbert wrote a scathing editorial in the New York Times entitled Medieval Justice the case got renewed attention, and ultimately the en banc court reheard the case and reversed.  Sleeping in a death penalty case is understood to be deficient performance.

So, what happens when one of the best lawyers in the country -- a lawyer who’s hourly fees are so high he is one of America's richest lawyers, and who has won some of the most celebrated criminal cases in history (Michael Jackson etc.) falls asleep in the middle of trial (technically 30 minutes during the judge reading back prior testimony to the jurors).  That is what apparently happened in the Bill Cosby retrial this week during deliberations.  (I can’t confirm the facts but there were several news reports even as the story became overshadowed by the bigger news of the guilty verdict.)     

But, for law professors interested in crim pro hypos… Is this deficient performance (putting aside the prejudice issue)?  Shouldn’t it be more deficient if you are paying more for an attorney than most people could dream of affording?  If it is not deficient performance then why?  A presumption of competence based on wealth and reputation?  Can a well-compensated super lawyer ever be deficient?    While here the sleeping did not seem to interfere with the actually lawyering (the judge was just reading back the testimony), what if it had happened in other stages?  

Now that Cosby has been convicted will this be an issue for appeal? 

Posted by Andrew Guthrie Ferguson on April 27, 2018 at 01:03 PM | Permalink


@Asher: "Isn't that part of why many states postpone the litigation of ineffective-assistance claims to collateral review?"

My comment was mostly a joke, because if there is a serious claim of IAOC, the lawyer has a conflict and withdraw or be removed. But hypothesizing lawyers who does not perceive (or care about) their own errors and plunge ahead on an appeal, I don't think that's why IAOC questions are postponed. Most states, as permitted by the federal constitution do not provide counsel on collateral review, and there is no restriction on trial counsel representing their client on collateral review. In addition, on direct appeal, there is no general requirement for new counsel on appeal, which I believe is essential for effective review (trial counsel, of course, should consult with appellate counsel on the issues). Based on these practices, I see little reason to think that this aspect of the system has been structured based on concern for the interests of convicted persons.

I think the primary reason IAOC is not generally raised on direct appeal is that most IAOC claims are based on extra-record facts. But when the facts are on the record (such as, if an alert prosecutor had asked the judge to wake Mr. Mesereau) the claim could be raised (or not)on direct appeal.

Posted by: Jack | Apr 29, 2018 12:49:19 PM

I don’t think sleeping while testimony is read back is ineffective assistance, but how terrible! It really must tick off the jury,

What are these trial judges doing? If they notice it, which they should, they should immediately take a recess and have a talk with counsel or break for the day. It should never get to the point that it is a litigated issue.

Posted by: Anon | Apr 29, 2018 8:29:33 AM

My own reaction is that sleeping lawyers undermine the reliance that the public can have on the integrity of the justice system and I don't see how the cost of the lawyering plays a role in that concern. Yet at the same time I find it difficult to articulate any meaningful standard to judge just how much loss of faith must be required for the judge to order a new trial. Does it rely on the total length of sleep? Whether sleeping goes on a crucial junctures? (and how does one define what a crucial juncture is?) Does it matter the seriousness of the charges? The weeds get thick and murky fast. Relying on raw intuition I would say I don't see enough to order a new trial in this case but raw intuition makes for a very very short argument.

Posted by: James | Apr 27, 2018 4:57:19 PM

It seems pretty clear , that the general standard of effective harm caused by reckless representation , should be applied here . For , the defendant , should prove , that without the reckless behavior or mistake of the lawyer , the result of the trial , could have changed in his favor . Just to quote from Strickland V. Washington :

" An error by counsel does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment "

End of quotation :

So , one can't assume it seems , the a lawyer sleeping during reading , could change the outcome or result of the trial it seems .


Posted by: El roam | Apr 27, 2018 4:50:21 PM

"Shouldn’t it be more deficient if you are paying more for an attorney than most people could dream of affording?"

Are you really proposing that rich defendants should be able to get habeas relief by proving that their retained expensive lawyers performed only as well as a poorly-paid appointed lawyer? That is the implication of what you are saying, if "Shouldn't it be ..." is (as one would think) i seeking the answer "yes."

Posted by: Sam | Apr 27, 2018 4:00:14 PM

Thanks for the interesting post, Andrew! I agree that the sleeping lawyer cases make for really fruitful hypos. I like to put the students in role to argue Joseph Muniz's case: https://blogs.findlaw.com/sixth_circuit/2011/08/attorneys-cross-exam-nap-doesnt-mean-counsel-was-ineffective-1.html. In addition to using the hypos to explore the IAC doctrine, I find this a really useful time to talk about prosecutorial stance on appeal.

Posted by: Anna Roberts | Apr 27, 2018 2:37:26 PM

"if the sleeping lawyer is counsel on appeal, he is unlikely to raise the issue."

Isn't that part of why many states postpone the litigation of ineffective-assistance claims to collateral review?

Posted by: Asher Steinberg | Apr 27, 2018 1:44:06 PM

Very interesting. I assume there were other defense lawyers at counsel table, which would arguably eliminate any deficiency and harm. In addition, if the sleeping lawyer is counsel on appeal, he is unlikely to raise the issue.

Posted by: Jack | Apr 27, 2018 1:40:05 PM

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