“Sleeping,” sleeping, and Cronic sleeping.

Three recent cases involving lawyers alleged to have been sleeping during trial (actually only two about sleeping lawyers, one about a lawyer pretending to sleep) leave me feeling like there has to be the germ of a worthwhile point to be made in there somewhere, but after drafting and redrafting this post in spare moments the last couple of days, I’m not sure any longer that had a point to be made but here we are, and I’m pot committed, so …

Those of us who primarily handle civil litigation tend to think that the stakes we deal with are high, and our clients certainly think so and expect us to treat their cases in that fashion.  Those responsibilities can end up keeping lawyers up at night.  Yet, in criminal cases, there are typically more significant repercussions for the participants that can flow from a lawyer’s mistake.  Jail time, capital punishment, etc.

Falling asleep during trial would be universally recognized as a pretty significant error for an attorney make.  Yet, pretending to be asleep during trial could, of course, be a strategic ploy.  The three cases decided in 2016 so far that got me thinking on this topic manage to cover the spectrum of the “slumbering lawyer” problem.

Back on Groundhog Day of this year, a prosecutor in Maine was chided by that state’s highest court for conduct described as “sophomoric, unprofessional and a poor reflection on the prosecutor’s office.”  Specifically, the conduct was pretending to sleep during the defense’s closing argument in a murder trial.  The court determined, however, that neither that conduct, nor other conduct by the prosecutor that the court found problematic, was enough to find prejudicial error to the defendant sufficient to justify reversing the homicide conviction in the case.  The stage craft of pretending to sleep could, as with other kinds of stagecraft, be viewed as amounting to a violation of RPC 4.4(a) on the part of the prosecutor.  Maine’s RPC 4.4(a), like the ABA Model Rule, prohibits a lawyer representing a client from “us[ing] means that have no substantial purpose other than to embarrass, delay, or burden a third person….”

Moving on from fake sleeping, but also back in February 2016, the 11th Circuit affirmed a lower district court’s ruling that a criminal defendant was not prejudiced by his slumbering counsel because the lawyer alleged to have fallen asleep only did so during a non-critical stage of the trial.  Specifically, defense counsel fell asleep while a recorded interview of an accomplice – spanning 71 pages in transcript length – was played to the jury.  The 11th Circuit agreed with the district court’s ruling that the standard for ineffective assistance under Strickland v. Washington and not U.S. v. Cronic was correct and that the trial court did not unreasonably apply Strickland.

The 11th Circuit opinion presents a very dry read including very little detail (even the lawyer involved never has his name mentioned).  From the opinion though, it appears the only actual proof mentioned of an instance of sleeping was the lawyer’s own statement made after cross-examining the witness and in response to the prosecutor asking for a break while defense counsel was cross-examining the law enforcement officer who had authenticated the recording:  “I need to take a break; I fell asleep a couple of times.”  Whether a sleeping lawyer is viewed as providing incompetent representation in violation of RPC 1.1, or acting in a manner not sufficiently diligent under RPC 1.3, or simply not in a position to effectively communicate with the client during trial under RPC 1.4, one would think that, if the lapse into unconsciousness could actually be proven, that the potential would exist for a finding of a disciplinary violation.  Yet, I would be very surprised if discipline ever came to pass.

In contrast, just last week, the Fourth Circuit reversed the conviction and thirty-year sentence of a defendant whose counsel also fell asleep during trial.  The Fourth Circuit case, as with the 11th Circuit case, involved a Section 2255 proceeding, but the difference in this situation being fairly described as one of degree and of the resulting legal standard to be applied.  Everyone who testified during the evidentiary hearing proceedings — except for the lawyer in question — testified to having witnessed the lawyer asleep at least once during trial.  The lawyer’s client after first alleging his lawyer fell asleep twice, eventually testified that his lawyer had slept for as many as 10 minutes a stretch some 10 to 20 times during the trial.  Counsel for other co-defendants each testified that despite now having a direct view of him at all times, they had noticed at least one bout of snoozing.  Perhaps, most damningly, a juror testified that the lawyer was asleep for at least a half an hour almost every day of trial and that the sleeping lawyer had been a topic of discussion during deliberations.  The lawyer, in question, in testimony not lost on the appellate court, said he couldn’t recall sleeping during the trial.

The Fourth Circuit, in what was a first impression matter for it, joined several other circuits in indicating that the Cronic standard — permitting the presumption of prejudice — and not Strickland applies when a lawyer is asleep for a substantial part of the trial.  The Fourth Circuit, however, also explained in a footnote that its ruling should not be treated as meaning only “the most egregious instances of slumber” will serve to trigger the need for the Cronic standard, indicating that being asleep for a critical part of the trial alone could also be sufficient.  Thus, the same fact pattern in the 11th Circuit matter might suffice in the Fourth Circuit if the nap had come not during the paying of an audiotape of a repetitive witness statement but during a critical time in the trial.

The same set of ethics rules mentioned above as to the one-time-napper are, of course, also implicated by repeated siestas during trial, but the odds of such a proceeding being pursued and discipline imposed inherently should be more likely as to the lawyer in the Fourth Circuit case.  Given the pretty broad conspiracy that would be necessary for the lawyer to prove his public explanation that this was a political dirty trick mounted against him because he had run for public office, such a case would likely be difficult to defend.

[P.S. While his other response, equating the allegations against him as an insult to the federal judge who presided over trial, the logistics of the courtroom described in the Fourth Circuit opinion that could explain why the trial court wouldn’t necessarily have seen the sleeping no matter how frequent and the Fourth Circuit’s own pretty strong rebuke of the district judge’s discounting of the witness testimony — “[T]he district court utterly failed to consider the likely possibility that each was saw [the lawyer] asleep or nodding off on different occasions.  Had the court done so, it would have reached the conclusion that [the lawyer] could have been asleep on at least six or seven different occasions.” — that approach isn’t likely as elegant a way of defending himself as it might seem at first glance.]