You might think any first-degree-murder trial would be interesting enough to keep a lawyer awake for the duration, at least for the lawyer representing the defendant. This turns out not to be true. You might also think that someone whose defense lawyer fell asleep during such a trial would get a new trial because he or she received “ineffective assistance of counsel.” But this also turns out not to be true.

It depends on the duration and timing of the snooze(s).

You should, of course, already know this. See “TIP: Lawyer Who Sleeps for ‘Substantial Portion’ of Trial Is Ineffective” (Mar. 14, 2016). And as FindLaw mentions here, this happens often enough that by now, several courts have considered just how much sleeping during trial might be too much.

Yes, this does mean at least some amount of sleeping during trial is acceptable. Well, maybe “acceptable” isn’t the right word. But courts have unanimously held that merely showing your lawyer was unconscious part of the time isn’t enough to show “ineffective assistance.” How much is too much? The Fourth Circuit and at least three others apply the “substantial portion” standard. The Second Circuit has focused more on whether naps were taken during “critical times.” Now the highest court of Massachusetts has weighed in, and it looks like it’ll be harder than ever for a defense lawyer to get a little shut-eye there.

In Commonwealth v. Watts, the defendant was convicted of first-degree murder. A different lawyer took over after the conviction, and the defendant told this lawyer the first one had “slept during portions of the trial.” For reasons not explained (but I assume because this was before my 2016 article came out), the new lawyer “dismissed the issue as unmeritorious” and did not investigate further.

The defendant then hired a third lawyer to handle the appeal. But, possibly because of the prior lawyer’s reaction, he failed to tell this one that his trial lawyer had been catching Zs. Only after oral argument did she learn this, when it was too late to bring it up in the direct appeal. She filed another new-trial motion anyway, arguing this was “newly discovered evidence.” Which it sort of was, but only in the sense that she had just discovered it. (The high court let this slide, so I will too.)

She collected affidavits from people who had been around for the trial (but not from trial counsel himself, which was understandable because he had died during the appeal). These affidavits set forth each person’s “recollection as to whether trial counsel was observed sleeping during the trial and, if so, when and for how long.” These recollections varied.

Unsurprisingly, the defendant and his mother testified that trial counsel slept a lot, or as the court put it, “recurrently and during significant moments.” These “moments” allegedly included jury selection and the testimony of a “central prosecution witness.” A co-defendant (who had separate counsel and so less reason to exaggerate) also said trial counsel caught winks repeatedly and during important testimony. His lawyers were more equivocal: one said “trial counsel slept at least once during testimony” and the other that his “eyes were closed several times throughout the trial,” presumably not just while blinking. Only one juror responded to inquiries, and did not recall anything specific. But one of the prosecutors admitted he saw trial counsel snoozing “on several distinct occasions,” and once had to “rouse” him to look at a picture about to be shown to a witness.

The judge who heard this motion “credited the affidavits” but held they were not enough to show a consitutional violation: “trial counsel’s slumber neither rose to the level of structural error nor prejudiced the defendant’s case.” The high court, however, was more receptive.

“It is well established,” its analysis began, “that a person may be deprived of counsel in certain circumstances even though counsel is present physically.” With no quotes around “deprived of counsel” this has sort of a Zen feel to it—if a lawyer argues in the forest with no one to hear him, does he make a sound? But it could happen, for example, if counsel is appointed at the last minute with no time to prepare. “We have not had occasion to consider the point at which an attorney’s slumber during trial results in deprivation of counsel,” the court noted, but now that time had come.

The five federal circuits that have considered this to date “agree as a general matter that a trial counsel’s slumber constructively may deny defendants their right to counsel,” but as noted above have focused on different things. This court decided both were equally important. Therefore, I inform you that under the Massachusetts state constitution, a deprivation of counsel occurs when “counsel sleeps for a significant portion of trial or sleeps through an important aspect of trial.” (Emphasis in original.)

The first prong means a defendant might win “regardless of the demonstrated importance of the particular times at which counsel slept, if the duration and frequency of counsel’s sleeping was significant in and of itself.” The court continued, not very helpfully: “Although less frequent or shorter periods of unconsciousness at trial” might be enough, “mere momentary lapses in attention or consciousness are insufficient.” (As another court had noted, “there are states of drowsiness that come over everyone from time to time during a working day, or during a trial, for that matter,” but the record before it showed “that [trial attorney] was actually unconscious.”)

But the second prong means that even a momentary blowing of Zs could be enough if it occurred during “an important aspect of trial.” What’s sufficiently “important” is hard to say; there is no bright-line rule—apparently even in a capital-murder case. In any event, this “dual approach” is now the law in Massachusetts.

Applying this standard to the evidence above, the court held it supported a finding that trial counsel “at least slept through a significant portion of the trial” and likely also “through an important part of trial,” namely the testimony of that “central prosecution witness.” It then held this justified a new trial, which under its analysis will basically always be the case if a court makes the required sleepiness finding. “A defendant whose attorney is unconscious,” it concluded, “and thereby constructively absent” has not received a fair trial. This defendant will get a new one.

To me, the cited evidence seems pretty thin, especially if you discount the testimony of defendant and his mom. It’s hard to see how this evidence added up to a “significant portion of the trial,” which was the basis for the holding. Still, given that this was a capital case, I don’t really have a problem with the result. “No sleeping during a murder trial” would be a clearer standard, I guess is what I’m saying.

Here’s another potential bright-line rule: does any substantial evidence show defense counsel was audibly snoring? Because regardless of how long that went on or when it happened, it just looks bad, or sounds bad, or let’s say “might tend to undermine the public’s confidence in the legal system.” Here, only the defendant testified that “trial counsel at one point was snoring,” and I would want at least some corroboration for that. But I suspect the Massachusetts court was really applying my no-snoring-in-a-capital-case rule. I think it’s a good one.