Wednesday, June 7, 2023 | Back issues
Courthouse News Service Courthouse News Service

So your lawyer fell asleep at trial…

Arguments at the high court of Massachusetts offered little sympathy for counsel dozing off — except maybe when the proceedings drag.

BOSTON (CN) — The Massachusetts Supreme Court struggled Wednesday with how to handle the life sentence given to a teenager whose lawyer, now deceased, slept through portions of his trial.

“You’re saying that in a long trial it’s OK to nod off once in a while,” Justice Serge Georges reprimanded Assistant District Attorney Elisabeth Martino at oral argument. “I would vehemently disagree with that. You should be paying attention.”

Maybe, Martino insisted, but “momentary dozing is not enough” to invalidate a court proceeding.

Justice Scott Kafker conceded that “there are monotonous parts of trial” where a sleepy lawyer doesn’t harm a client, “but there are also momentous moments where he can’t be asleep.”

Defense lawyer Elizabeth Doherty argued that a lawyer should never sleep through the presentation of evidence, but Justice Frank Gaziano wasn’t so sure.

“There are five pages of trial transcript about the technicalities of fingerprint evidence; is that critical?” he asked. “I get it if an informant is testifying, or a rape victim is testifying, but you’re saying that any time a witness testifies,” the lawyer has to be awake?

The lawyer in this case, Willie Davis, was defending Nyasani Watt, who was arrested for first-degree murder at age 17 in what prosecutors claimed was a gang-related shooting. Davis died shortly after the trial, and a different lawyer was unable to get Watt's conviction overturned on appeal. Doherty took over the case for the next stage, obtaining affidavits in which prosecutors and co-counsel suggested that Davis had occasionally nodded off. She brought another appeal claiming for the first time that Davis’ lack of consciousness violated Watt’s constitutional rights.

“A sleeping counsel is equivalent to no counsel at all,” she wrote in her brief. “The mere physical presence of an attorney does not fulfill the Sixth Amendment entitlement to the assistance of counsel.”

Whereas federal law says that a lawyer can’t sleep through a “substantial portion” of a trial, the law in Massachusetts specifies that a lawyer can’t sleep thought a “critical stage” of the proceedings. As to what constitutes a critical stage, however, left the judges flummoxed.

Doherty suggested that any presentation of evidence is critical, but that that went too far for Justice Dalila Wendlandt who said it would encompass the entire case. “What does ‘critical’ mean if it’s the entire trial?” she asked.

“How much of a trial would a lawyer have to sleep through before you’d agree that it was a problem?” Justice Elspeth Cypher asked Martino.

Martino dodged the issue but Kafker cut her off. “Don’t broom that; it’s a critical question,” he said.

Martino acknowledged that, during the 12-day trial, Davis “sometimes had his eyes closed” — but she said this was “not uncommon.” She noted that a prosecutor reported that he once had to cough to wake Davis up when showing him an exhibit.

“Isn’t an exhibit critical?” Cypher asked.

“Yes, but he woke up for it,” Martino replied.

In the end the judges seemed to coalesce around the idea of remanding the case for a hearing to determine the exact portions of the trial that Davis had slept through. Martino wanted the appeal dismissed but she eventually backpedaled and suggested that a remand was preferable to an outright reversal of the conviction.

“If you find against me, you can remand to suss out exactly when he was sleeping,” she conceded.

Categories:Appeals, Civil Rights, Law

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.