I have to wonder what went through Edward Trujillo’s mind as his lawyer dozed during his trial. Did he think to give his lawyer a nudge? Did he think that he should have hired a lawyer rather than go 18b? Did he think that he was better off letting his lawyer sleep?
Brooklyn Supreme Court Justice Vincent Del Giudice vacated Trujillo’s conviction after trial for third degree weapons possession based on ineffective assistance of counsel in People v. Irazarry. On its surface, the decision might be taken as a funny one, comparing New York criminal defense lawyers in low degree felonies with the sleeping lawyers in Texas capital cases.
The lawyer involved, whose name was omitted by Justice Del Giudice but was identified in this Law.com post, Michael Harrison, challenged Trujillo’s allegations of ineffective assistance.
Reached by phone Wednesday, Harrison called his opening statement “very logical and precise.” As for the laughing jurors, he said, “Well, laughter’s very good when you’re looking at many years in prison.” Regarding the allegation that he slept throughout the trial, he added, “That sounds very relaxing.”
Harrison added that “just about everything” alleged in the decision was untrue, and that he intended to “take [the matter] up with the judiciary grievance committee.”
Clearly, Harrison is dismissive of the of claims, which is an interesting approach subsequent to a decision granting a motion to vacate alleging that he not only slept and read a fitness magazine during trial, but that his opening statement and cross-examination was so bad that the jurors laughed at him. Not with him, but at him.
But this isn’t a funny decision. Not for Harrison. Not for Trujillo. Not for the rest of us either. Justice Del Giudice found:
But this isn’t a funny decision. Not for Harrison. Not for Trujillo. Not for the rest of us either. Justice Del Giudice found:
It is very unusual for this court to criticize a member of the bar and I am hesitant to do so in this opinion. This is a learned profession and I appreciate and enjoy watching members of the bar perform their craft. However, during this trial, I found myself very uncomfortable whenever defendant Trujillo’s counsel addressed either a witness or the jury. It was impossible to predict what he was going to say. Based upon all of the foregoing, I conclude that this defendant did not receive the minimum level of representation that is required by law.
It’s unlikely that the judge realized the gravamen of this statement, but it’s quite clear to me. Justice Del Giudice admits that as he sat there, putatively presiding over a criminal trial in Brooklyn Supreme, he observed a lawyer before him whose conduct failed to meet the minimum level of representation required under New York law. And he did nothing.
In New York, ineffective assistance of counsel isn’t based on Strickland v. Washington, as it is under federal law, but rather People v. Baldi. It requires that counsel provide “meaningful representation,” without requiring the prejudice prong of Strickland. If the attorney’s choices can be attributed to some strategic purpose, even though it failed to achieve success, then the lawyer wasn’t ineffective. But it need not be judged by resulting prejudice. This means that a trial judge need not wait for the jury to convict to determined that counsel has been ineffective.
In New York, ineffective assistance of counsel isn’t based on Strickland v. Washington, as it is under federal law, but rather People v. Baldi. It requires that counsel provide “meaningful representation,” without requiring the prejudice prong of Strickland. If the attorney’s choices can be attributed to some strategic purpose, even though it failed to achieve success, then the lawyer wasn’t ineffective. But it need not be judged by resulting prejudice. This means that a trial judge need not wait for the jury to convict to determined that counsel has been ineffective.
Del Giudice confirmed that he witnessed much of what Trujillo alleged.At what point does the judge, whose responsibility includes assuring that the defendant is afforded his constitutional rights, including the right to counsel at trial, decide that it’s time to do something? Whats striking here is that the judge concedes that he saw the train wreck coming, and he did nothing. He saw it happen, and he did nothing. He saw the aftermath, and still he did nothing. Not until new counsel was appointed and moved to vacate did the court figure out that it has a role to play in this trial.
“At one point during the trial, this court stopped the proceedings and required all parties to engage in a side bar, because I observed [Harrison] apparently sleeping at the counsel table. The court asked counsel, at side bar, if he was feeling well and if he needed a break to eat or drink,” the judge wrote.
He added, “[Harrison] did, indeed, give a bizarre opening statement. The beginning … was so off topic and irrelevant that this court was compelled to stop counsel and direct that he address what he intended to prove during the course of the trial. The jury was, in fact, laughing during counsel’s opening statement and such laughter at a member of the bar created an unprofessional atmosphere.”
The judge also stated that although he did not witness Harrison reading magazines while witnesses were being examined, he did see him drop one.
I don’t know Michael Harrison, who “[b]y his own count, he has taken more than 600 trials to verdict.” Let me say that I am skeptical of this claim, in the extreme. But even if he’s tried 100 cases to verdict, still quite a lot, it does nothing to counterbalance what happened in the trial of Edward Trujillo, who was as entitled to competent counsel as any other defendant.
The judge’s expressed reluctance to “criticize” a member of the bar reflects misguided priorities. His job was to give the defendant a fair trial, where all constitutional rights were fully afforded. His job is not to cover for a fellow lawyer, or even sit back and enjoy the show. There’s nothing funny about this.
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Well put, SG. I just wanted to make clear that my advocacy over the years for more lawyer naptime is limited, while at courthouses, to Restrooms and the Lawyers Lounge.
I’m not sure what’s worse — the fact that Trujillo’s lawyer did such a piss poor job defending him or the fact that the judge sat there while his attorney slept and did nothing.
Instead of praising a Judge for taking the difficult step of overturning a verdict you attack him. Do you think this is the first time Mr. Harrison represented a client in this manner? Would it surprise you to know that a lawyer can do a horrible job and the jury can still return a not guilty verdict? If that happens ( and I have heard of a case where it did happen with this same attorney) there would be no reason for the Judge to overturn the verdict would there. If anybody is to be criticised it should not be the one Judge who stood up and said this is wrong but the other Judges who allowed this to go on in their courtrooms. Your criticism seems to be that the Judge should have acted sooner. You do not understand the realities of the judicial process. Yes a Judge can get involved in the judicial process but he must exercise restraint and avoid becoming a third lawyer in the courtroom
This is one of the saddest rationalizations I’ve read. Praise the judge for letting the case go to verdict just to save himself from having to do his job? I understand that realities awfully well, and you are so fundamentally wrong about the judge’s responsibility. If things have gone so awry before him that he is faced with a constitutionally flawed trial, his job isn’t to exercise restraint but to assure that the defendant receives a constitutionally adequate trial.
Apolgists don’t help matters, and the judge’s duty isn’t changed by the fact that the incompetent counsel lucks into a not guilty verdict. The end does not justify the means. Keep apologizing for judicial failure and we keep getting the judiciary we deserve.
I don’t know how many trials SHG has participated in. Criminal law has been what I have been doing for over thirty years. There are Judges who are appointed primarily because of politics. Some of them are ok and some do not have a clue. The Judge in this case is someone I know and I can tell you without a doubt that he is extremely knowledgeable and in this particular case he did the right thing by overturning the verdict. The result is nobody was hurt – not the defendant and not the prosecution. SHG may think he should have acted sooner. One problem with this is the concept of double jeopardy might have kicked in making it impossible to put the defendant on trial again. For another if the defendant had been found not guilty there would be no basis for claiming ineffective assistance of counsel because the result was what the defendant wanted and a defendant is the only way who is going to complain about ineffectiveness of counsel. Certainly a prosecutor is not going to claim that the lawyer who opposed him and won the case was ineffective. SHG may think this is an apology. From my vantage point it is just reality. SHG wants perfection. No system is perfect.
So your argument is that nothing is perfect, and since the judge ultimately did the right thing, though he blew the opportunity before verdict to do so, should immunize him from criticism for what he did wrong? That’s absurd.
Obviously, this judge is a friend of yours and you’re defending him for having done the right thing, albeit a little late. That’s very sweet of you to defend your friend. But he’s a judge and should be able to take some heat for a bad call during trial. That he’s your friend doesn’t make it any better, nor provide a reason to ignore his blown call. And that he’s your friend doesn’t mean the rest of the world will lay off. Nor does the fact that other judges wouldn’t have tossed the verdict afterward make the mistake during trial a non-mistake.
As for “SHG’s background,” it’s more than 25 years practicing criminal law, meaning that you have about 5 years on me. But obviously, I have far higher expectations and standards than you. I don’t applaud error, even if it’s your pal who committed it.
I don’t deny knowing the Judge and being friendly with him when we see each other around the courthouse. However, we do not socialise or communicate with each other outside court. I also don’t deny knowing the lawyer in question and having been friendly with him when I saw him around the courthouse. Does this make me “pals” with either of them? As for defending the Judge there is nothing to defend. The only one I know of who is criticising him is you. By the way I noticed you did not comment on the double jeopardy issue. As an experienced practitioner do you think that there might possibly be double jeopardy consequences if the Judge stopped the trial without the consent of the defense attorney?
First, I don’t see any double jeopardy implications at all. If a mistrial was declared, it would be due to manifest necessity based on the acts/omissions of his attorney, which would not preclude retrial. There’s no need for consent of defense counsel when his own actions gave rise to the necessity of a mistrial.
Second, if you aren’t defending the judge, then why are you commenting?
I appreciate your point that many judges, perhaps most, wouldn’t have done the right thing by tossing the verdict at the end. But that fact doesn’t excuse the judge’s failure to address what he, by his own words and reasoning, saw happening during trial and yet allowed to continue unabated. There are certainly plenty of judges who would have left it to the appellate division to fix the mess, and I grant you that Judge Del Giudice cleaned up his own mess. But he should never have allowed the mess to happen before his eyes in the first place, and done nothing. Sure, a not guilty verdict would have allowed him to avoid the problem, but judicial convenience and avoidance isn’t exactly a foundation of jurisprudence. Practical, but far less than what we hope for. And if we don’t expect better from judges, then we will never get better. So Del Giudice was better than most. Not exactly high praise.
At last we appear to have reached some points of agreement.See you in Court someday.