It used to be that New York lawyers could safely razz Texas lawyers because they put people to death while the defense lawyer slept. Ah, the good old days. At least sleeping lawyers were in the courtroom.
According to the Second Circuit, however, you should feel lucky if your lawyer is fast asleep. At least he’s in the courtroom. Azzeaz Saleh had to make do with his lawyer out to lunch. Literally.
According to the decision, the trial judge, Richard Arcara, told counsel to return from lunch at a quarter to two. Mr. Saleh’s lawyer, however, Matthew Pynn, somehow became confused and thought he had until 2:15 (the normal time to resume trial after lunch, by the way). When Mr. Pynn arrived at the courtroom, a crucial witness was already on the stand and testifying about Mr. Saleh purchasing contraband cigarettes. Mr. Pynn felt very badly, though adequately sated.
The Circuit, in its tripartite wisdom, noted that there are two prongs to the Strickland test. It was not enough that Mr. Saleh’s lawyer had failed to appear, but that he prove that he was prejudiced by Mr. Pynn’s absence.
According to the Second Circuit, however, you should feel lucky if your lawyer is fast asleep. At least he’s in the courtroom. Azzeaz Saleh had to make do with his lawyer out to lunch. Literally.
According to the decision, the trial judge, Richard Arcara, told counsel to return from lunch at a quarter to two. Mr. Saleh’s lawyer, however, Matthew Pynn, somehow became confused and thought he had until 2:15 (the normal time to resume trial after lunch, by the way). When Mr. Pynn arrived at the courtroom, a crucial witness was already on the stand and testifying about Mr. Saleh purchasing contraband cigarettes. Mr. Pynn felt very badly, though adequately sated.
The Circuit, in its tripartite wisdom, noted that there are two prongs to the Strickland test. It was not enough that Mr. Saleh’s lawyer had failed to appear, but that he prove that he was prejudiced by Mr. Pynn’s absence.
In Tippins v. Walker, 77 F.3d 682 (2d Cir. 1996), a defendant sought a new trial on the grounds that his attorney slept through significant parts of the trial.
In Tippins, the circuit said it was reluctant “to extend a rule of per se prejudice in any new direction,” adding that “[o]ordinarily, episodes of inattention or slumber are perfectly amenable to analysis under the Strickland prejudice test.”
Are there that many episodes of slumber? Am I the only one staying awake throughout trial?
Now I can far better understand a lawyer getting back late from lunch, particularly when the time for return set by the court is unusual (as here). It’s not excusable, but understandable. But I have a real problem when sleeping through trial becomes so common as to be “perfectly amendable to analysis” under Strickland.
And why not make it a per se rule? Does anyone question whether it’s wrong? Does anyone argue that attendance by lawyers at trial is voluntary? There are two immutable characteristics of both sleeping and showing up. First, if you’re asleep or not there, you can’t represent your client. Second, if you’re asleep or not present, the trial judge ought to know about it. Thus, it can be addressed right there and then, rather than “discovered” on appeal.
Showing prejudice, other than as a rhetorical matter, is very difficult bordering on the impossible. After all, there’s no way to show what would have happened had the ineffectiveness not happened. Would there have been an objection, a voir dire on the evidence, something, that would have made a difference? How many individual things happen at trial that would affect the outcome at all? It’s sheer speculation.
But still we expect attorneys to be attorneys, do their job, stay awake and show up, all the way through the trial. It’s just not that hard to do. While the Second Circuit is clearly hesitant to give defendants a back door on appeal, defendants really deserve better than this. If the Court of Appeals won’t give it to them, then who?
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