When lawyers sleep on the job, defendants face an uphill climb to justice

Sixty years ago, the Supreme Court recognized that criminal defendants have a right to counsel at trial, which means that if they're too poor to pay for an attorney, the government will assign one. Nowadays, defendants have a right not only to a lawyer, but to an effective lawyer. But judges have struggled with how to draw the line between effective and ineffective, and this has huge implications: If a judge finds that defense counsel is ineffective, it can lead to a new trial. GBH legal analyst and Northeastern University law professor Daniel Medwed joined Morning Edition co-host Jeremy Siegel to talk about a case that could change how that's done in Massachusetts. This transcript has been lightly edited.

Jeremy Siegel: This is something that I think a lot of people know a little bit about, and not that many people know a lot about. I might be dating myself a little bit here, but I did not even know that the right to counsel came just 60 years ago. It's something I'm familiar with because of TV shows where police tell you 'you have the right to remain silent' and that you have the right to an attorney. But it's definitely less-known that you have a right to an effective attorney. You don't hear police officers in TV shows saying that to people when they're arrested. How exactly does this work?

Daniel Medwed: As you mentioned at the top, a series of Supreme Court cases have carved out a federal constitutional right to an effective attorney at the pretrial and trial stages of your case, which means that if you can prove that your lawyer was ineffective, you can get a new trial. The problem is the Supreme Court has created a very, very high bar for proving that your lawyer was ineffective. The test comes from a rather well-known 1984 case called Strickland v. Washington, which set up a two-part standard. First, as a defendant who lost a trial, you have to prove on appeal that your trial lawyer was defective, was deficient: they failed to investigate the case, they didn't put on an alibi witness, they didn't cross-examine their opponents, things like that. And then second, you have to show that the deficiency somehow contributed to the bad verdict, to the conviction. In other words, it's not enough to show that your lawyer messed up. You have to show that that error was somehow outcome-determinative.

Siegel: I think for people trying to make sense of this, in a way, it makes sense that you want to make it a thorough process to prove that someone's ineffective, because you don't want people abusing it and appealing every case on this. But the second part of that kind of stuck out to me: That you don't just have to prove that your lawyer is ineffective, but you essentially have to prove that their horrible work as your attorney is what led to conviction at trial.

Medwed: Exactly. It's a little bit like the no harm, no foul concept in sports. You actually have to show that there was an impact on the ultimate decision because of the error. And this can lead to some absurd outcomes. I saw one study that found that 97% of the time when a defendant raises one of these ineffectiveness issues on appeal, they lose. And cases where lawyers were drunk or under the influence of drugs have been upheld, or at least not considered ineffective performance of counsel. One despicable case from Texas, I think, is really illustrative: A man is charged with murder and he's facing the death penalty. He's too poor to pay for a lawyer, so he's assigned one by the court. That lawyer falls asleep intermittently throughout the trial. The defendant goes to the judge to alert the judge about this, and here's the judge's response: the Constitution says you're entitled to an attorney. It says nothing about that attorney being awake.

Siegel: That's just shocking to hear that. Daniel, tell us about the situation here in Massachusetts. Do we have to follow the Supreme Court case law or could we, say, provide more protection to criminal defendants in these situations?

Medwed: Well, here in Massachusetts, we could create a more robust ineffectiveness doctrine than the Supreme Court demands. And here's why: it's often said that the federal Constitution is a floor. States can't provide fewer rights, less protection, than the Supreme Court and the federal Constitution require. But there's no ceiling. We can always provide more. So that's one reason among many why we still have a robust right for people to terminate pregnancies if they so choose, even though the U.S. Supreme Court has eviscerated the federal constitutional right to choice in the Dobbs case from last year. So we could create a more robust right if we wanted.

Siegel: I mentioned earlier that there is a case pending in Massachusetts that could affect how these types of ineffective lawyering claims end up being treated. What exactly is at stake here?

Medwed: So tomorrow, the SJC is going to hear oral arguments in a case involving a defendant named Nyasani Watt. The facts are pretty procedurally complicated, but here's the main gist: Watt was charged with first degree murder for participating in the shooting death of a young man in Dorchester back in 2011. Watt was only 17 at the time. The case went to trial a few years later, he was convicted, sentenced to life behind bars, and then he lost his appeal. Fast-forward another few years: He accumulated some evidence that his lawyer had fallen asleep off and on at trial. And he even got affidavits from a bunch of courtroom observers, folks who were in the courtroom at the time of the trial, including several prosecutors, to verify that the lawyer fell asleep. So Watt assembled all this information and filed a post-appeal motion with the original trial judge. But the trial judge said there wasn't enough information that the lawyer fell asleep at critical parts of the trial or for a substantial portion of the trial. So at least in theory, this case could provide an opportunity for the court to really evaluate whether we tolerate sleeping lawyers in criminal cases in Massachusetts.

Siegel: So what do you think will end up happening here?

Medwed: You know, I'm not so sure. On the one hand, there are lots of issues in this case, and it's possible the SJC will hang its hat on another issue and bypass that substantive issue altogether. For instance, there's a question about whether why Watt waited too long to file this claim, whether he should have acted earlier in the process, or whether the fact that he was really young at the time of his trial and appeal should excuse that failure to raise it before. On the other hand, if the court is inclined to take another look at the substantive doctrine here, it could provide a chance to create greater protections for criminal defendants in Massachusetts than the federal Constitution demands.