As reported in the New York Law Journal, Second Circuit Judge Rosemary Pooler went back to 1997 to decide whether a defendant, Alfonso Williams, was denied effective assistance of counsel when his lawyer, Syracuse attorney Stephen Lane Cimino, slept during his narcotics conspiracy trial. 

Judge Pooler found that Cimino “actively engaged in defending Mr. Williams, lodging objections and in cross-examination of witnesses making references to their direct testimony,” at the 11 week long trial.  The motion to vacate the conviction was denied.

Of course, Mr. Williams called 6 witnesses, all of whom testified that they observed Cimino sleeping for lengthy periods of time during the trial.  Mr. Cimino was also called as a witness, and testified that he remembered having a sinus headache during the trial and putting his head in his hands and squeezing to alleviate the pain.  He also remembered having an infection that caused loss of hearing in one ear.

And you thought things like this only happened in Texas.

A case like this reveals some disturbing problems with the criminal justice system.  First, as held by Judge Pooler, the level of representation necessary to provide effective assistance of counsel is so minimal that a sleeping lawyer can fulfill it.  Notably, it was not alleged that he slept every second of the trial, so there is nothing inconsistent about the fact that the lawyer engaged in cross and made an occasional objection and that his slept for lengthy period during the trial.  These are not mutually exclusive over the course of 11 weeks.

Second, the defendant produced 6 witnesses to testify that the lawyer was sleeping, and yet Judge Pooler sided with the lawyer (or circled the wagons might be a better description?).  This is the classic pissing match between lawyer and client, the one in which the client invariably loses, no matter how truthful he is or how much evidentiary support he can muster.  While we can talk about how this is all for the clients, notice how defensive lawyers and judges can be when the situation flips on its head and the lawyer comes under the microscope. 

So why would Judge Pooler ignore the 6 witnesses, ignore the impact of sleeping on the job, and deny the motion?  It might have something to do with the fact that she presided over the trial.  If the lawyer was asleep at her trial, shouldn’t she have notice?  Isn’t it the judge’s job to assure that every defendant’s 6th Amendment right to effective assistance of counsel is met?  Of course it is, and the fact that an attorney slept through large portions of a trial does not reflect well on the judge who allowed it, or worse yet, didn’t even notice.

Is it possible that the lawyer rendered effective assistant even though he slept?  it’s possible.  But it’s not good enough.  If he made 10 appropriate objections, what it he should have made 50?  If he asked 20 good questions on cross, what if he should have asked 100?  It’s not sufficient to speculate that the defendant received effective assistance.  It’s time to stop parsing the transcript to find a few good things the lawyer did to cover all the things that never happened because he was asleep.  Criminal defense lawyers should not sleep during trial.  Is that such a hard rule to follow?

And I don’t want to seem entirely unsympathetic to Mr. Cimino’s sinus headache problems.  I’m sure Mr. Williams would be happy to help him alleviate his pain by personally squeezing Cimino’s head.