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March 14 — A lawyer who fell asleep several times during trial violated his client's right to counsel in such a fundamental way that the man didn't need to show prejudice to win a reversal of his conviction, the U.S. Court of Appeals for the Fourth Circuit ruled March 11.
Prejudice is presumed and reversal is automatic if the lawyer dozes off repeatedly because a sleeping lawyer is tantamount to no lawyer at all, the court said in an opinion by Judge Roger L. Gregory.
According to the court, the Second, Fifth, Sixth, Ninth circuits have all held that prejudice must be presumed when counsel sleeps either through a substantial part of the trial or during a critical point of the trial.
The court said it was undisputed that Nicholas Ragin's lawyer was asleep for much of Ragin's drug conspiracy and prostitution trial.“Nicholas Ragin's Sixth Amendment right to counsel was violated not because of specific legal errors or omissions indicating incompetence in counsel's representation but because Ragin effectively had no legal assistance during a substantial portion of his trial.”Judge Roger L. Gregory
It credited the testimony of three witnesses in particular: A juror and the lawyers for two of Ragin's co-defendants.
The juror said she noticed the lawyer nodding off “almost every day” for 30 minutes at a time. She also noted that other jurors saw the lawyer sleeping and commented on it in the jury room.
Ragin testified he occasionally had to nudge his lawyer to get him to respond to testimony during the trial.
The district court denied Ragin's habeas petition, finding no prejudice. It said the lawyer had cross-examined all the witnesses who mentioned Ragin in their testimony and noted that the lawyers for Ragin's alleged co-conspirators had cross-examined the other witnesses.
It also said that the evidence of Ragin's guilt was overwhelming.
The court of appeals reversed Ragin's conviction, saying that a lawyer who sleeps through a substantial portion of the trial is the equivalent of having no lawyer at all. This is a structural error, requiring automatic reversal without any need to inquire about actual prejudice, it added
“Nicholas Ragin's Sixth Amendment right to counsel was violated not because of specific legal errors or omissions indicating incompetence in counsel's representation but because Ragin effectively had no legal assistance during a substantial portion of his trial,” the court said.
The court said that the presumption of prejudice is only triggered when counsel sleeps through a “substantial” portion of the trial and doesn't come into play just because there may have been occasional “episodes of inattention or slumber.”
It declined to define “substantial,” saying only that courts should weigh factors like “the length of time counsel slept, the proportion of the trial missed, and the significance of the portion counsel slept through.”
Judges Dennis W. Shedd and Andre M. Davis joined the opinion.
Tin, Fulton, Walker & Owen PLLC, Charlotte, N.C., represented Ragin. The U.S. Attorney's Office, Charlotte, represented the government.
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