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Massachusetts Supreme Judicial Court Announces Constructive Denial of Right to Counsel Where Defense Counsel Sleeps for Significant Portion or During Important Aspect of Trial

by David M. Reutter

In a case of first impression, the Massachusetts Supreme Judicial Court held that “a defendant constructively is deprived of his or her constitutional right to counsel under art. 12 [of the Massachusetts Declaration of Rights] where trial counsel sleeps for a significant portion of during an important aspect of trial.” The Court, therefore, vacated the judgment of conviction and ordered a new trial.

Nysani Watt was convicted of first-degree murder for the 2013 shootings that killed 16-year-old Jaivon Blank and wounded 14-year-old Kimoni Elliott. Watt informed his first appellate attorney “that his trial counsel slept during portions of the trial,” but the “first appellate counsel dismissed the issue as unmeritorious and did not investigate it further.” The conviction was affirmed on appeal.

A motion for new trial was denied in 2020. Approximately two months later, Watt “filed another motion for new trial, contending that he was deprived of his right to counsel because his attorney was sleeping during critical parts of the trial. In support of this motion, the defendant submitted his own affidavit as well as affidavits from his second appellate counsel, his codefendant, his codefendant’s two trial attorneys, the two trial prosecutors, and his mother. Each affidavit described the affiant’s recollection as to whether trial counsel was observed sleeping during the trial and, if so, when and for how long.” The motion judge denied the motion. Watt timely appealed.

The Court applied the gatekeeper analysis under G.L.c. 278, § 33E, which is “the mechanism by which this court exercises plenary review of all convictions of murder in the first degree, provides this court with ‘extraordinary powers’ to ‘consider the whole case, both the law and the evidence, to determine whether there has been any miscarriage of justice.’” Dickerson v. Attorney Gen., 488 N.E.2d 757 (Mass. 1986). “This unique form of review requires our consideration of issues raised by the defendant, as well as issues not raised, ‘but discovered as a result of our own independent review of the entire record.’” Id.

Because no one at the trial raised the fact that counsel was sleeping during trial, the error was not apparent from the record. “As a result of first appellate counsel’s ineffective assistance, this court was not able to consider the claim under its plenary review, despite the efforts of the defendant,” the Court stated. “In these unique circumstances, we conclude that the defendant has presented a ‘new’ question under § 33E, because this claim was not available to the defendant in prior proceedings.”

Having found the gatekeeper criteria was met, the Court turned to the merits of the appeal. The Court noted that a defendant may be deprived of counsel even when counsel is physically present under certain circumstances. See United States v. Cronic, 466 U.S. 648 (1984) (constitutional error where, without a showing of prejudice, counsel was present but was “prevented from assisting the accused during a critical stage of the proceeding”). The issue of whether “an attorney’s slumber during trial results in deprivation of counsel requiring reversal” was a matter of first impression for the Court. It noted that in such cases the “United States Courts of Appeals for the Fourth, Fifth, Sixth, and Ninth Circuits focus on whether counsel slept for a substantial portion of the trial…. Meanwhile, the United States Court of Appeals for the Second Circuit focuses on whether counsel was unconscious ‘at critical times,’ a consideration that the Fifth Circuit has also discussed.” United States v. Ragin, 820 F.3d 609 (4th Cir. 2016); Muniz v. Smith, 647 F.3d 619 (6th Cir. 2011); Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001); Tippins v. Walker, 77 F.3d 682 (2d Cir. 1996); Javor v. United States, 724 F.2d 831 (9th Cir. 1984).

The Court concluded that under art. 12 of the state Constitution, “a deprivation of counsel occurs when counsel sleeps for a significant portion of trial or sleeps through an important aspect of trial.” The Court stated that the significant portion of the trial standard provides a defendant “might prevail regardless of the demonstrated importance of the particular times at which counsel slept, if the duration and frequency of counsel’s sleeping was significant in and of itself. Although less frequent or shorter periods of unconsciousness at trial may support a claim of structural error, mere momentary lapses in attention or consciousness are insufficient.” Tippins.

Under the important aspect of trial standard, even “if a defendant cannot demonstrate that counsel slept for a significant portion of the entire trial, prejudice may be presumed where a defendant demonstrates that counsel slept through an important aspect of trial,” the Court stated.

The Court announced that the “standard we adopt today for determining whether a constructive deprivation of counsel has occurred at trial affirms that which already may be intuitive—that there is a distinction between those portions of trial where unremarkable, ancillary evidence is being presented versus when direct evidence of guilt or innocence is being presented, and that the line between the two must be assessed on a case-by-case basis.”

Applying the newly adopted standard, the Court ruled that the affidavits submitted “provide a sufficient factual basis” to support the determination that trial counsel was asleep for a significant portion of the trial, including an important aspect of trial. Commonwealth v. Sylvain, 46 N.E.3d 551 (Mass. 2016).

The Court explained that “submitted affidavits [came] from both sides of the aisle, all of which corroborate the defendant’s claim that trial counsel was sleeping throughout trial.” Thus, the Court concluded that Watt was deprived of his right to counsel under art. 12 and determined that a miscarriage of justice occurred because “the deprivation of counsel at trial is the type of structural error that inherently raises serious concerns whether the trial itself was ‘an unreliable vehicle for determining guilt or innocence.’” Neder v. United States, 527 U.S. 1, (1999).

Accordingly, the Court reversed the order denying the defendant’s motion for a new trial, vacated the convictions, set aside the verdicts, and remanded for a new trial. See: Commonwealth v. Watt, 224 N.E.3d 377 (Mass. 2024).   

Related legal case

Commonwealth v. Watt

 

 

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