On Friday, the Fourth Circuit, deciding “an issue of first impression,” ruled that a new trial is required when a defense lawyer sleeps through a substantial portion of a trial. The opinion in United States v. Ragin is available here. This post summarizes and discusses the case.
Background. In 2004, Nicholas Ragin was charged with federal crimes as a result of his alleged participation in a prostitution ring and a drug distribution operation. Though not discussed in the appellate opinion, the Government’s evidence tended to show that Ragin was an “enforcer” who would beat up women who were noncompliant or would shoot at rival drug dealers in defense of his group’s territory. Ragin v. United States, 2014 WL 4105898 (W.D.N.C. Aug. 19, 2014) (unpublished).
A Charlotte attorney named Nikita Mackey was appointed to represent Ragin. The case went to trial, Ragin was convicted, and he received a lengthy sentence. He appealed the sentence, but it was affirmed.
Post-conviction proceedings. Ragin then filed a post-conviction petition under 28 U.S.C. § 2555, which is the federal equivalent of a motion for appropriate relief. He alleged that Mackey had provided ineffective assistance of counsel because he slept through portions of the trial. The judge who had presided over the trial held an evidentiary hearing. Several witness, including Ragin, a juror, the case agent, and counsel for Ragin’s co-defendants, testified that Mackey had slept or appeared to sleep at times. Mackey testified that he did not recall sleeping, and the judge noted that Mackey had cross-examined relevant witness and had showed familiarity with their testimony on direct examination. Therefore, the judge ruled that Mackey had not provided ineffective assistance of counsel, and it denied the petition.
The Fourth Circuit’s opinion. The Fourth Circuit reversed. It found that the evidence that Mackey slept was “not disputed,” and credited the testimony of a juror who stated that Mackey slept “almost every day” for 30 minutes at a stretch. The court then held that “a defendant is deprived of his Sixth Amendment right to counsel when counsel sleeps during a substantial portion of the defendant’s trial.”
This is so, said the court, regardless of whether counsel’s sleeping prejudices the defendant. A sleeping lawyer is the functional equivalent of no lawyer at all, and a complete denial of counsel is “structural error” that mandates a new trial:
Although generally a defendant must show that his counsel’s performance was deficient and prejudicial to prevail on a claim of ineffective assistance of counsel, see Strickland v. Washington, 466 U.S. 668 (1984), in United States v. Cronic, 466 U.S. 648 (1984), the Supreme Court held that there are certain situations where the reliability of a trial becomes so questionable that the defendant need not show that he was actually prejudiced. Instead, prejudice is presumed. We believe that when counsel for a criminal defendant sleeps through a substantial portion of the trial, such conduct compromises the reliability of the trial, and thus no separate showing of prejudice is necessary.
In ruling that structural error occurs when a defense lawyer sleeps for a substantial portion of a trial, the Fourth Circuit joined several other circuits that have reached the same conclusion. See, e.g., Muniz v. Smith, 647 F.3d 619 (6th Cir. 2011); Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc).
How much sleeping is “substantial”? The Fourth Circuit stated that occasional “episodes of slumber” are not structural error and should be analyzed using the Strickland test. So, how much snoozing is required before counsel “sleeps during a substantial portion” of a trial? In a footnote, the court offered some limited guidance on that point:
While we conclude that the manner in which Mackey slept in the instant case was substantial, we decline to define this term for all cases. Whether a lawyer slept for a substantial portion of the trial should be determined on a case-by-case basis, considering, but not limited to, the length of time counsel slept, the proportion of the trial missed, and the significance of the portion counsel slept through. At the same time, however, while we decline to dictate precise parameters for what must necessarily be a case-by-case assessment, we caution district courts that the scope of our holding today should not be limited to only the most egregious instances of attorney slumber.
Further reading. I wasn’t previously familiar with Mackey, but in Googling around for some background on this case, I learned that he has been in the news quite a bit. This story about the Ragin case highlights a few aspects of his career.