From United States v. Ragin (4th Cir. Mar. 11, 2016):

We believe that when counsel for a criminal defendant sleeps through a substantial portion of the trial, such conduct compromises the reliability of the trial, and thus no separate showing of prejudice is necessary. This case presents such a situation.

Now, just because your lawyer fell asleep during trial doesn’t mean your conviction will be reversed. The Sixth Amendment guarantees criminal defendants the right to assistance of counsel, and showing ineffective assistance usually means proving (1) the lawyer’s performance was deficient and (2) it actually made a difference at trial. But, as this court held, if the record shows the lawyer was unconscious for a “substantial portion”of the trial, that’s all you have to prove: the court will presume the substantial unconsciousness made a difference.

We must of course consider what “substantial portion” means.

In this case (see also WSJ Law Blog coverage), Ragin was convicted of conspiracy to commit various drug- and prostitution-related offenses. He later sent the court a letter complaining about his defense attorney, alleging among other things that the attorney “had the audacity to fall asleep twice during the trial.” (It actually isn’t possible to fall asleep “audaciously,” but I award him one vocabulary point anyway.) The conviction was affirmed, but Ragin later filed a habeas motion arguing ineffective assistance.

Claim number seven was that “[c]ounsel fell asleep during the trial.” The court doesn’t seem to have credited any of the others, but decided to hold an evidentiary hearing to consider the extent of the sleepiness. (Although this was the same judge who presided at trial, as the Fourth Circuit pointed out, attention at trial is often directed at the witness or at least whoever is speaking, so the judge would not necessarily see every nap taken by a lawyer.)

Ragin’s lawyer, Mr. Mackey, testified that “he did not recall whether he slept during the trial,” and I was going to give him one honesty point but then he said “he thought he ‘would have recalled something like that.'” Well, I’m fairly sure I slept last night but I’m just inferring that from other evidence; I can’t say I “recall” being unconscious. Mackey also argued that if he had fallen asleep, somebody surely would have mentioned it, but the transcript showed no such thing.

On the other hand, even the prosecution’s other witness admitted he had seen Mackey “nod off” once or twice. Co-defense counsel testified that he “definitely” noticed it once, when the prosecutor wanted to show them an exhibit before introducing it. “I remember that [Mackey] was sort of sitting back,” he said, “sort of with his chin resting on his fist, and [the prosecutor] held the document in front of him and he didn’t move….” The judge then said “‘Mr. Mackey’ … very loudly,” causing him to “jump” and look “sort of confused” before noticing the document. Another defendant’s lawyer testified that on one occasion he noticed Mackey’s “head [was] down … [and he was] breathing very regularly as if he was sleeping.” Yes, “as if.” I do this all the time. I just think better that way. Totally circumstantial.

Ragin, of course, testified to frequent snoozing, but he had every reason to do so. (I’d like to believe his claim that his lawyer once woke up and “asked [him] what he missed”—not something you want to hear from your lawyer at trial—but I’m skeptical.) The Fourth Circuit found more compelling the testimony of a juror who testified on Ragin’s behalf and said she noticed Mackey sleeping “almost every day … morning and evening,” for at least 30 minutes per nap. He had “[t]otally dozed off,” she said, and claimed Ragin frequently “would have to punch him” in order to wake him up. She also said other jurors noticed the snoozing. In particular, she said they had discussed their observation that at one point Mackey was “resting his head against [Ragin]” and that it may have influenced the verdict.

I guess there are alternative explanations for “resting [your] head against” a client, but I don’t think any of them are very good ones. Maybe they were just conferring, though?

Ragin would likely have preferred that this juror not vote to convict him in the first place, of course, but her testimony did get him a new trial (most likely).  The lower court seems to have assumed that she was “remorseful” about her vote, but the Fourth Circuit held the record didn’t support that.

It noted that although this was the first time it had considered the sleepy-lawyer question, four other circuits have done so and all agreed prejudice must be presumed “when counsel sleeps either through a ‘substantial portion'” of trial “or at a critical time during trial.” That is, dozing off during closing argument or something like that would be bad, but that didn’t happen here. And “episodes of inattention or slumber” might require consideration of prejudice, the court noted, but “the buried assumption” in that analysis is that “counsel is present and conscious…. Of course, we cannot make such an assumption when counsel is asleep during a substantial portion” of trial. A lawyer who sleeps “too much” at trial, in other words, is no lawyer at all.

How much is too much? Hard to say, but here’s the rule, for future reference: