Criminal Justice

Lawyer nodded off on 'multiple occasions' at trial, requiring reversal, 4th Circuit says

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A conspiracy defendant’s Sixth Amendment right to counsel was violated because his lawyer slept during parts of his trial, a federal appeals court has ruled.

The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals overturned the conviction of Nicholas Ragin, who was sentenced to 30 years in prison after his 2006 conviction for conspiracies involving prostitution and cocaine. He was represented by lawyer Nikita Mackey at the federal trial in Charlotte, North Carolina. The Wall Street Journal Law Blog and WSOCTV have stories.

“Ragin was thrown unarmed into the arena to face the gladiators without benefit of the assistance of counsel to which he had an absolute right,” the 4th Circuit said in its March 11 opinion (PDF).

Ragin had complained to the judge in a letter that Mackey had twice fallen asleep during the trial. During a later evidentiary hearing, however, Ragin said the snoozing was more frequent. Ragin testified that Mackey slept for up to 10 minutes at a time between 10 and 20 times. Ragin said he had to nudge Mackey several times, and one time Mackey asked Ragin what he had missed.

A juror also testified about frequent bouts of sleeping. The juror said Mackey was asleep for at least 30 minutes almost every day, morning and evening. When Mackey was called on during trial, the juror said, Ragin would have to punch or rouse Mackey. The juror said the sleeping lawyer was even discussed during deliberations.

Lawyers for two co-defendants also said they saw Mackey appearing to sleep. One of the lawyers said he saw Mackey with his head down and breathing regularly as if sleeping. The other lawyer said Mackey didn’t move when he was approached one time by a government lawyer with an exhibit. The judge leaned into the microphone and called Mackey’s name. Mackey “jumped up and sort of looked around and was licking his lips and moving his mouth and looked sort of confused,” the lawyer testified.

A government witness also said he saw Mackey nodding off on one or two occasions.

Mackey himself testified that he didn’t recall whether he slept during trial, but he thought he would have recalled something like that. He said he first heard of the sleeping allegations while running for sheriff and he viewed them as political fodder.

The district court judge found Ragin had incentive to embellish his sleeping claim during the hearing, and his original assertion that Mackey was asleep on two occasions was more credible. The juror, the trial judge said, referred to Ragin by his first name and may have been remorseful because of the severe sentence imposed. A few occasions of sleeping didn’t rise to the level of ineffective assistance, the judge said.

The appeals court said it believed the trial judge was mistaken in his findings of fact and credibility determinations. The facts are “extraordinary and egregious,” the appeals court said.

The witnesses all said that Mackey appeared to be asleep or nodding off at some point, and they may have observed Mackey on different occasions, the appeals court said. And the juror—who was positioned to best see Mackey–said it was frequent. There was no evidence the juror felt remorseful or even knew of the sentence, the appeals court said.

“Based on this record,” the appeals court said, “we find it impossible not to conclude that Mackey slept, and was therefore not functioning as a lawyer during a substantial portion of the trial.”

The appeals court said it agreed with other circuits that a defendant’s Sixth Amendment rights are violated when his lawyer is asleep during “a substantial portion” of the trial. “While we decline to dictate precise parameters for what must necessarily be a case-by-case assessment,” the appeals court said in a footnote, “we caution district courts that the scope of our holding today should not be limited to only the most egregious instances of attorney slumber.”

WSOCTV published a statement from Mackey, who said he was happy to learn the appeal was successful.

“I have always maintained and still do maintain that the allegations against me regarding this case are untrue and are the result of a contentious political battle for sheriff,” Mackey told the broadcast station. “I have come to expect that people and media outlets will distort my record and/or actions, but I am not used to attorneys disparaging a federal judge in this way.

“I understand and expect for defense counsel to do anything within ethical bounds in order to defend their clients. But to imply that a presiding federal court judge would allow defense counsel to ‘sleep almost every morning and afternoon … for 30 minutes’ as your station has reported, and do nothing, is ridiculous and, in my view, offensive to the judge and me. I will leave it to each person to form their own opinions as to how realistic that is.

“ ‘Candor to the court’ is a very important part of our legal system and 99 percent of the time it is automatic. I submit to you that it is sorely missing in this instance.”

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