When lawyers sleep on the job, defendants face a steep climb to the judiciary

Sixty years ago, the Supreme Court recognized that defendants in criminal proceedings have the right to legal counsel, meaning that the government will assign a lawyer if they are too poor to pay for a lawyer. Defendants today have a right not just to an attorney, but to an effective attorney. But judges struggle with how to draw the line between effective and ineffective, and that has huge implications: if a judge finds defense counsel to be ineffective, it can lead to a new trial. Daniel Medwed, a legal analyst at GBH and a law professor at Northeastern University, spoke with Morning Edition co-host Jeremy Siegel about a case that could change the way things are done in Massachusetts. This transcript has been edited lightly.

Jeremy Siegel: That’s something I think a lot of people know a little bit about, and not that many people know a lot about. I may have dated myself a bit here, but I didn’t even know that the right to legal representation only came about 60 years ago. I know this from TV shows where the police tell you you have the right to remain silent and you have the right to a lawyer. But it’s definitely less well known that you have a right to an effective attorney. You don’t hear cops say that to people on TV shows when they’re arrested. How exactly does this work?

Daniel Medwed: As you mentioned above, a number of Supreme Court cases have created a federal constitutional right to an effective counsel in the pre-trial and trial stages of your case, which means that if you can prove your counsel was ineffective, you can get a new trial version. The problem is that the Supreme Court set a very, very high bar for proving that your attorney was ineffective. The test comes from a fairly well-known 1984 case called Strickland v. Washington, who established a two-part standard. First, as a defendant who has lost a trial, you must prove on appeal that your trial counsel was defective, that he was defective: you did not investigate the case, you did not use alibi witnesses, you did not cross-examine your opponents, such things. And second, you have to show that the lack somehow contributed to the bad judgment, to the condemnation. In other words, it’s not enough to show that your lawyer screwed up. You have to show that this error was somehow decisive for the outcome.

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Siegel: I think for people who are trying to make sense of this, it makes sense in a way that you want to make it a thorough process of proving someone is ineffective because you don’t want them to be People abuse it and appeal in every case. But the second part of that nature caught my eye: that not only do you have to prove that your attorney is ineffective, you essentially have to prove that your horrible work as your attorney resulted in a conviction in court.

Medved: Exactly. It’s a bit like the no harm no foul concept in sports. You actually have to show that the error influenced the final decision. And that can lead to some absurd results. I saw a study that found that a defendant loses 97% of the time if he raises any of these invalidity issues on appeal. And cases where lawyers were drunk or under the influence of drugs have been confirmed, or at least not considered invalid legal advice. I think one despicable case from Texas is really illustrative: a man is charged with murder and faces the death penalty. He’s too poor to pay for a lawyer, so the court assigns one to him. This lawyer falls asleep intermittently during the trial. The defendant goes to the judge to bring this to his attention and here is the judge’s response: The constitution says you are entitled to an attorney. It says nothing about this attorney being awake.

Siegel: That’s just shocking to hear. Daniel, tell us about the situation here in Massachusetts. Do we have to follow the jurisprudence of the Supreme Court or could we, for example, offer more protection to defendants in these situations?

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“Here in Massachusetts, we could create a more robust ineffectiveness doctrine than the Supreme Court requires.”

– Daniel Medwed, Legal Analyst at GBH News

Medwed: Well, here in Massachusetts we could create a more robust ineffectiveness doctrine than the Supreme Court requires. And here’s why: It’s often said that the federal constitution is a ground. States cannot offer fewer rights and fewer protections than the Supreme Court and the Federal Constitution require. But there is no ceiling. We can always offer more. So that’s one of many reasons we still have a robust right for people to terminate pregnancies if they choose, even though the US Supreme Court gutted the federal constitutional right to choose in last year’s Dobbs case. So we could create a more robust law if we wanted to.

Siegel: I mentioned earlier that Massachusetts has a pending case that could affect how these types of invalid attorney claims are ultimately handled. What is this about exactly?

Medwed: Tomorrow the SJC will hear oral arguments in a case involving a defendant named Nyasani Watt. The facts are quite complicated procedurally, but here’s the gist: Watt was charged with first-degree murder for taking part in the 2011 shooting of a young man in Dorchester. Watt was only 17 at the time. The case came to trial a few years later, he was convicted, sentenced to life imprisonment, and then he lost his appeal. Fast-forward a few more years: He gathered some evidence that his attorney had occasionally fallen asleep during the trial. And he even got affidavits from a group of court observers, people who were in the courtroom at the time of the trial, including several prosecutors, to confirm that the attorney had fallen asleep. So Watt gathered all this information and filed a post-appeal motion with the original trial judge. But the trial judge said there was insufficient information that the attorney fell asleep during critical parts of the trial or for a significant part of the trial. So, at least in theory, this case could be an opportunity for the court to really assess whether we tolerate sleeping criminal attorneys in Massachusetts.

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Siegel: What do you think will happen here in the end?

Medwed: You know, I’m not so sure. On the one hand, there are many issues in this case, and it is possible that the SJC will hang its hat on another issue and bypass this essential issue entirely. For example, the question is whether Watt waited too long to file this lawsuit, whether he should have acted earlier in the trial, or whether the fact that he was really young at the time of his trial and appeal should excuse that omission it before. On the other hand, if the court is inclined to reexamine the substantive doctrine here, it could present an opportunity to provide criminal defendants in Massachusetts with greater protections than the federal constitution requires.

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