Published on: Wednesday, March 15, 2023

Massachusetts’ highest court debated whether a defense attorney who slept through parts of a first degree murder trial and had to be roused by a prosecutor at one point might have tainted his client's conviction because it violates a defendant’s constitutional right to counsel (article available here).

The defendant and several lawyers present during the trial noticed the lawyer doze off, but the defendant lacked clear evidence that the attorney slept during a critical stage of the case.

The issue was not raised during Nyasani Watt's first, unsuccessful appeal, and prosecutors argued that Watt waived the argument by not bringing it up the first time around.

A ruling on the request for a new trial will establish the state’s stance on the extent to which a defendant must demonstrate that his lawyer’s dozing impacted his case.

The Second, Fourth, Fifth, Sixth, Ninth, and Eleventh Circuits have all found that it’s a structural error when an attorney was asleep for a substantial part of a trial. That grants the defendant an automatic new trial, without having to articulate particular ways in which his attorney’s inattentiveness impacted his case.

"Trials are long, and a quick closing of the eye is not a 'substantial portion,'" said Elisabeth Martino, the assistant district attorney representing the state, drawing a rebuke from one of the justices. "You're supposed to be paying attention," he said. "It's your client that's on the line. Pay attention."

One of the prosecutors during the trial, a current Superior Court Justice, said he recalled that he either coughed loudly or kicked Davis's chair to get him to look at a piece of evidence before he approached a witness with it.

The defense argued that having a sleeping defense attorney amounts to a structural error, meaning that it allows a new trial even if she cannot show the error harmed her client. The state countered that the defense has not shown any prejudice.

The case is Commonwealth v. Watt , Mass., No. SJC-13279.