Thursday, January 8, 2009

More Sleeping Lawyer As Not Ineffective Assistance, This Time In Arkansas

Posted by Alan Childress

The blog Law of Criminal Defense reports on an Arkansas Supreme Court opinion decided today which finds no ineffective assistance of counsel for [yet another] sleeping defense counsel.  The blog's editor, John Wesley Hall Jr., notes that it will be difficult to find reversible prejudice on the facts since three other defense attorneys were not asleep.  Lawyers can step away, as long as trial is covered, and no one finds huge prejudice in the missing attorney. 

True, but there is something different signaled to a judge and jury about an attorney who cannot stay awake in a capital case.  At any rate, Hall astutely adds that any case that relies on a sleeping lawyer opinion from the Tex.Crim.App. is suspect itself.

Add this case to Andy Perlman's list at Legal Ethics Forum of examples of what is amazingly sad about our criminal justice system.

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It's appalling. Yet, as much as I hate to say this, but I'd estimate that 90% of trials that last several weeks or more have at least one key person (lawyer, judge, or juror) fall asleep at least once. I'm not defending that, just estimating the facts.

(Once, in the middle afternoon of a bench trial, the opposing trial lawyer and I realized that the judge had fallen asleep. It was during his direct exam, so don't blame me. It raised questions along the lines of 'if a tree fell in a forest and no one heard . . . .')

Posted by: John Steele | Jan 8, 2009 7:42:24 PM