One of four defense counsel apparently napping during voir dire in a capital case (where life was imposed) was not ineffective assistance of counsel. Jackson v. State, CR07-1016 (Ark. January 8, 2009). How this arose:

In his third point on appeal, Jackson argues that the circuit court should have granted his motion for mistrial, made during voir dire, in response to the alleged ineffectiveness of one of his four attorneys. As attorney Marczuk was conducting voir dire of the fourth group of potential jurors, he raised an objection to a line of the State’s questioning. After the court excused the venire members so that counsel could discuss Marczuk’s objection, Marczuk asked that the panel be stricken, but the prosecutor, Thomas Deen, commented that it had been raising the same line of questions with the previous jurors. Marczuk replied that one of the other three attorneys had been objecting unsuccessfully to the question, and he did “not mind doing it again.” Deen retorted, “That’s probably because you were sleeping during the other ones.”

After another defense attorney complained that Deen’s comment was derogatory, Deen replied that Marczuk “has obviously been sleeping during these proceedings.” The court then attempted to turn the discussion to the actual objection that had been raised, and the court ultimately denied defense counsel’s request that the panel be stricken. At that point, defense attorney Bing Colvin again raised Deen’s comment about Marczuk’s sleeping, and the following colloquy occurred:

COLVIN: Well, I’ve tried a number of cases against this prosecution, and one of their tactics is to make snide remarks like that. And it’s got no place in a trial where a man’s life is at stake. And it’s only done to make us look bad. Now, it’s just not ---

COURT: What is the objection ---

COLVIN: — got any place in the record. It’s not got any place in front of the jury.

DEEN: Look bad to who? There’s nobody but us in here.

COLVIN: And that’s what I meant. He’s going to keep going. I want to make a record. I made an objection when we first got started when we were going through that death is different.

COURT: Well, let me — I understand. I think maybe it’s my responsibility. And lead counsel for the defense obviously has delegated the responsibility to somebody else. But he’s alert and he’s ready to go now. Let’s bring the jury back. The jury hasn’t — we’ve been going several hours. But I mean, nobody is making up anything. But, you know, he has a battery of attorneys for the defense —

DEEN: I’m not suggesting he’s suffered any prejudice by it. I’m not suggesting that in the slightest.

MARCZUK: Well, apparently he has. So I’ll, we’ll go ahead and declare me ineffective, Judge. I have no problem with that. If that’s what you want to do, I have no problem with that. Maybe we should just start over. I’ll go ahead and ask to recuse. If I might go ahead and ask to step aside.

The motion was denied. Marczuk was suffering from the stress of representing a man charged with capital murder and facing death. He was required to work into the night, night after night, to get ready for this trial, and the state was death qualifying the jurors, which we all know helps insure a guilty verdict, too.

Here, having four lawyers assured no ineffective assistance; the other three weren't asleep:

Jackson cites cases in support of the premise that “sleeping counsel is tantamount to no counsel at all.” See, e.g., United States v. Thomas, 194 Fed. Appx. 807 (11th Cir. 2006); Burdine v. Johnson, 262 F.3d 336 (2001). Cases such as Burdine, supra, and Tippins v. Walker, 77 F.3d 682 (2d Cir. 1996), have held that prejudice can be presumed from the fact of a defense attorney’s sleeping through critical stages of a defendant’s trial because “if counsel sleeps, the ordinary analytical tools for identifying prejudice are unavailable.” Tippins, 77 F.3d at 686. See also United States v. Cronic, 466 U.S. 648 (1984) (a defendant is denied counsel not only when his attorney is physically absent from the proceeding, but when he is mentally absent as well, whether by being asleep, unconscious, or otherwise non compos mentis).

However, the cases on which Jackson relies involve a sole defense attorney sleeping through large portions of the trial. See, e.g., Burdine, 262 F.3d at 339 (witnesses testified that attorney fell asleep as many as ten times during trial, once for at least ten minutes). Here, on the other hand, Jackson had four attorneys, all of whom participated in voir dire. Moreover, the record does not reflect how long Marczuk had been asleep, and even during those periods when he was sleeping, Jackson’s other attorneys were actively engaged in voir dire. In Ex Parte McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005), the Texas Court of Criminal Appeals refused to presume prejudice from lead counsel’s naps, even when they occurred during critical stages of the trial, because the defendant had two attorneys and was thus never without counsel. McFarland, 163 S.W.3d at 752-73. Accordingly, because Jackson was never without the assistance of counsel — and counsel about whom he raises no claims of ineffectiveness — his argument lacks merit.

Regrettably, I see this issue as over, for cert, post-conviction, and habeas. While one defense counsel was asleep, what's the difference if the lawyer was coming and going from the courtroom talking to witnesses, still preparing for trial? The jurors seeing the lawyer sleeping, of course.

The lawyer is not always there, but it is hardly ineffective assistance. Also, Arkansas is a state long ago requiring two death qualified defense lawyers at trial. If at least one is there for everything, how is the defendant prejudiced. Sometimes counsel has to leave the room when a witness is on the stand.

And, the client avoided the death penalty. That should say something.

An aside I can't help: any case that relies on a sleeping lawyer opinion from the Texas Court of Criminal Appeals is suspect itself. My views of that court were posted here July 19, 2008. But, the fact remains that the Arkansas court is likely right on this issue if you compare the issue to lawyers having to leave the room for an hour, a half day, a whole day. It happens, and it is the lawyer being effective in other ways, leaving parts of the case to co-counsel.

(Note: Cross-posted to the Legal Profession Blog, a place I go everyday.)