6th Circuit holds a Sleeping Attorney is Not "Ineffective" Counsel

• Muniz v. Smith

The 6th Circuit heard a case out of Michigan last week that involved a defendant's appeal of a conviction for assault with intent to commit murder, felon in possession of a firearm, and felony firearm. Muniz argued that his 6th Amendment right to counsel was violated because his attorney fell asleep during his trial.

The 6th Circuit first had to decide which rule of law to follow. Muniz argued that the Court should only apply the rule of U.S. v. Cronic which held that there are "circumstances so likely to prejudice the accused that the cost of their effect in a particular case is unjustified and prejudice is presumed." The lower Court previously used the standard of U.S. v. Strickland which held that in order to successfully claim that an attorney was so ineffective as to violate the 6th Amendment, the defendant must prove two things: that counsel's performance was deficient and that the deficient performance prejudiced the defendant.

Applying both rules, the 6th circuit determined that the defendant had not proven that his counsel's slumber had a prejudicial effect on his defense. Applying the rule from Cronic, the Court had to decide whether Muniz had proven that his attorney slept through a "substantial part" of his trial. The only evidence Muniz offered was testimony from two of the jurors who said they saw the attorney sleeping during Muniz's cross-examination. His cross-examination made up only a very small part of the trial transcript. This evidence, the Court held, did not prove the attorney slept through substantial portion of the trial.

Applying the rule from Strickland, the Court had to decide whether the attorney's conduct fell below an objective standard of reasonableness, and if so, if that conduct prejudiced the defendant. The Court held that there is no question that the attorney's conduct fell below an objective standard of reasonableness. Sleeping in court during your client's cross-examination is not reasonable conduct for an attorney. What the defendant could not prove, however, was that his attorney's conduct prejudiced the defendant's defense. In order to do so, Muniz would have to prove that the outcome of the trial would have been different. The evidence against Muniz was so strong, the Court held that it was unlikely that the outcome of the trial would have been different even if the attorney had not fallen asleep.

If an attorney sleeping through examination of his client by the government is not enough to trigger relief, what is? Sounds like the Court is asleep on this issue as well. I understand that in a case--especially one of strong proof--that the court can't be reversing on collateral issues. But I wonder what the trial court was doing. Surely, if two jurors are to believed and counsel was asleep, the Court was aware. I can't think of anything more damaging to the integrity of the judicial process than a sleeping defense attorney. You can imagine what the jurors said, "if his own lawyer doesn't care enough to be awake for the trial you know he's guilty."