Tuesday, March 15, 2016

Captain Egregious and the Van Winkles

Yesterday was not only Pi Day, which truth be told seems to me at least to be more than enough to put on one day's plate.  Someone other than me decided that it was not.  Yesterday was also National Napping Day.  Indeed.  National Napping Day.  It is a day such as yesterday that gives me a greater appreciation for my pal Phil Ayoub's decision to become a greeting card magnate.  A license to print money, I tell you.  An absolute license to print money.  

I am notoriously obtuse.  Thus, I am constantly befuddled between the seemingly paradoxical yet interconnected relationship between irony and coincidence.  Often, probably too often in fact, they seem to me to be opposite sides of the same coin.  Apropos of nothing, when I was a little kid I never won a coin toss.  Not once.  Kelly used to be the one who flipped the coin and every time he did, he would subtly remind me that the outcome was pre-determined, "Heads I win.  Tails you lose."  It is not easy going through childhood wishing for a leaner.  

But I digress. 

Yesterday morning, the Washington Post posted a story on its site, written by Lindsay Bever, about something that would be funny only if it happened to someone other than you or someone who you know and love.  Ms. Bever's piece told the story of Nicholas Ragin.  Approximately ten years ago a man named Nicholas Ragin was tried and convicted in the United States District Court for the Western District of North Carolina on charges of conspiracy and racketeering.  Ragin was sentenced to thirty years in Federal prison as punishment for his crimes.  This past Friday, a three-judge panel of the United States Court of Appeals for the Fourth Circuit, sitting in Richmond, Virginia, overturned Ragin's conviction.  

The basis for the Fourth Circuit's decision was its determination, based upon evidence adduced at an evidentiary hearing granted to Mr. Ragin in connection with a motion he filed pursuant to 28 U.S.C. 2255 to have his conviction vacated in which he argued that he had been deprived his Sixth Amendment right to assistance of counsel.  His motion was not predicated upon the fact that he had not had an attorney at trial.  He had.  In fact, his attorney was a lawyer named Nikita V. Mackey.  Mr. Mackey was appointed by the District Court to represent Mr. Ragin.  The underlying basis of Mr. Ragin's motion was that even though Mr. Mackey was there - he really was not there because he was too busy sleeping to effectively represent his client.  

The Ragin court, in a unanimous opinion authored by the Hon. Roger L. Gregory, U.S.C.J., concluded that Mr. Ragin's unrebutted evidence, which he presented in the form of witness testimony at his 2255 hearing, established that Mr. Mackey slept in court quite a lot.  Every day, in the morning and again in the afternoon as a matter of fact: 

Based on this record, 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. “Unconscious counsel equates to no counsel at all.” Burdine, 262 F.3d at 349.  Unconscious counsel cannot “analyze, object, listen or in any way exercise judgment on behalf of a client.” Id

Because we have no basis to conclude that an attorney who sleeps through a substantial portion of the trial has exercised judgment on his client’s behalf, “we have insufficient basis for trusting the fairness of that trial and consequently must presume prejudice.” Id. Therefore, the fact that Mackey was sleeping during Ragin’s trial amounted to constructive denial of counsel for substantial periods of that trial.

Judge Gregory and his colleagues were quick to point out, however that not every criminal case in which defense counsel catches up on his or her beauty sleep while he or she is supposed to be zealously representing the client will give rise to the vacation of a conviction as it did in Mr. Ragin's case.  In a footnote, the Ragin court pointed out that the conduct of the defense attorney must be looked at on a case-by-case basis, which is the type of thing that as a lawyer to me makes perfect sense while, I realize, driving wholesale portions of the population bat-shit crazy: 

Whether a lawyer slept for a substantial portion of the trial should be determined on a case-by-case basis, considering, but not limited to, the length of time counsel slept, the proportion of the trial missed, and the significance of the portion counsel slept through. At the same time, however, while we decline to dictate precise parameters for what must necessarily be a case-by-case assessment, we caution district courts that the scope of our holding today should not be limited to only the most egregious instances of attorney slumber.

"The most egregious instances of attorney slumber".  It rolls right off of tongue does it not?  I hope that should I live to be 1,000 that I never have to defend myself and the effectiveness of my representation of a client by relying upon the fact that my slumber did not rise to the level of being among "the most egregious instances" of such conduct.  

The Ragin opinion can be read in its entirety here

-AK 






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