A DISCUSSION OF LAW AND JOURNALISM

“Your Lawyer Fell Asleep During Your Trial? Deal With It.”

By Nadia-Elysse Harris and Alison Parker

His defense attorney may have slept through his cross-examination, but hey, Joseph Muniz would have been convicted of murder whether his attorney caught some shut-eye during his testimony or not.  Sound absurd?  Well, that was the ruling handed down by the U.S. District Court in July of this year when Mr. Muniz filed a habeas petition asserting that he did not receive adequate representation from his attorney:

This [affidavit] alleges only that Muniz’s attorney was asleep for an undetermined portion of a single cross-examination. The record shows that Muniz’s attorney was not asleep for the entire cross since he objected near the end of the questioning. This is especially significant, given that the total cross-examination was fairly short, spanning only 26 pages of trial transcript. Muniz’s lawyer therefore must have only been asleep for a brief period.

LASIS found this outcome a bit puzzling.  An attorney who dozes off while the prosecution probes his client seems pretty useless to us.  How could Mr. Muniz’s attorney still be said to have adequately represented his client?

Mr. Muniz claimed he received ineffective assistance of counsel (IAC).  A criminal defendant can bring a claim for IAC when an attorney’s representation is so lousy that it violates his constitutional right to a fair trial.

Cases like Mr. Muniz’s are not as uncommon as you would think.  In 1999 a defendant was convicted of rape and brought an IAC claim against his defense attorney.  In that case, his attorney did not tell the court that alleged victim recanted her testimony and wished to drop the charges. The court didn’t think this oversight was sufficient to support the defendant’s IAC claim. In 2002, an Oklahoma court held that even though the attorney did not present mitigating evidence of the defendant’s fetal alcohol syndrome in a death penalty case, this also did not constitute IAC.

So how bad does the attorney’s misconduct need to be in order to succeed in a claim for IAC? The client must prove that (1) his attorney’s performance was deficient and  (2) the attorney’s conduct was so egregious that it influenced the outcome of the case. In other words, the defendant must prove that the attorney’s conduct was so reprehensible that but for the conduct, the outcome of the case would have been different. Slight indiscretions do not merit a successful claim.

In one capital case, the attorney met with his client only a few times, and avoided or refused all of his client’s phone calls. The attorney failed to meet numerous court deadlines that precluded his client from presenting evidence central to proving the his innocence. And, for over a year, counsel failed to inform the defendant that the case had been dismissed.  That was enough for the court to find the attorney’s repeated instances of disregard for her client unacceptable and ordered a new trial.

Similarly, in a 2009 New York Supreme Court case, the court found that a defendant who was faced with eight years in prison for a conviction of criminal possession of a controlled substance did not receive effective assistance of counsel.  In so ruling, the court said, “The existing record establishes that trial counsel’s overall performance was prejudicially deficient. Counsel’s demonstrated lack of basic comprehension of criminal law and procedure through her persistent frivolous conduct at multiple stages of the proceeding, including, among other things, pretrial motion practice, a purported interlocutory appeal, the suppression hearing, requests for jury instructions, post trial motions and sentencing. ”

The standard to prove IAC is a tough one, but it is not intended to encourage shoddy representation.  Policy concerns regarding claims of ineffective assistance of counsel are many.  If the standard were easier, every client ever convicted of a crime would flood the courts with IAC claims.  As it stands now, courts look at the lawyer’s complete performance in deciding whether a client received effective assistance of counsel, not just the offending moment.

It seems fair enough when you look at it that way, we’re sure.  But ask Joseph Muniz and he’ll likely disagree.

Comments

6 Comments »

6 Responses

  1. Jenny Penny says:

    This is unbelievable. A lawyer falling asleep in court is clearly not doing his or her job. That person may even be on drugs. Should be disbarred.

  2. Adam Jacobs says:

    Ridiculous. And people wonder why lawyers get such a bad rep!

  3. Cam says:

    Lawyers are people too. And if the evidence against him would’ve convicted him anyway, why go through the trouble and expense of a new trial? It’s a tough one to argue either way.

  4. king james says:

    cam, what are you smoking?
    who knows if the lawyer is so out of it, he screwed up the whole defense. THAT’s why the evidence seems that the defendant would’ve been convicted anyway.

  5. coutry7o7 says:

    this is rediculous…a guy gets paid to do a job awake in the time he in court…to pay attention a notice all things going on in the court room….and he falls asleep is not in his pay agreement….fired for sleeping on the job…..!!!!!!!!!!!!!!!!

  6. blinkingblythe says:

    For those who think this is ok,
    how about a surgeon falling asleep
    while performing open heart surgery,
    or a construction worker falling
    asleep while operating one of those
    massive crane? If it’s ok for a
    defense attorney to fall asleep while
    soneone’s life is on the line
    (defendant facing years or life
    in prison, or even the death penalty), then my two examples should be perfectly OK too.

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