A Quick Little Power Nap

Hello Readers.  Welcome back.  I realize it has been so long since my last post that some of you may have forgotten about me or at least moved on with your lives.  I got a little busy with work and also got bogged down in another post I hope to soon complete, but I assure you, loyal readers, that you were missed.

To get back in the swing of things, and on a topic somewhat related to my neglect of the blog, I offer a few quick thoughts about sleeping on the job.  Generally, even if your job is not terribly important, it’s probably not a good idea.  You can probably get fired for sleeping at most places of employment.

But if you can’t make it through a full day without a little snooze, fear not.  There is a job out there for you.  It seems that if you just go to law school and pass a bar and get some poor schmuck to hire you to defend him in his trial for allegedly shooting someone, a brief nap is forgivable.  Or at least it’s not enough to get your client another bite at the apple.


So sayeth the Sixth Circuit:

“Petitioner Joseph Arthur Muniz filed a petition for a writ of habeas corpus challenging his state conviction for the 2004 shooting of Pedro Gutierrez. Muniz attacks his conviction on the ground that he was denied his Sixth Amendment right to counsel when his attorney fell asleep while Muniz was being cross-examined by the government. The district court denied Muniz’s petition, as well as his request for an evidentiary hearing. For the reasons stated below, we AFFIRM.”  (emphasis added — not to “AFFIRM”; the other emphasis).

I will spare you a long detailed legal analysis except to say that this is bullshit.  The court reasoned that there was no proof the attorney was asleep for a “substantial portion” of the trial, so prejudice could not be presumed.  Also, Muniz could not prove actual prejudice because he could not prove that the outcome would have been different if the attorney had been awake.  

Looking at the reasoning of the other circuits and the underlying Supreme Court precedent on ineffective assistance of counsel, this may be within the realm of a reasonable application of the existing law.  But it is wrong.  And the underlying precedent is wrong.  If your defense attorney put you on the stand to testify and then fell asleep while you were cross-examined by the prosecution, your counsel was ineffective.  (Seems so simple.)

But . . .  if you are not sitting in jail because of a sleeping attorney, and your current employer is a little too strict about on-the-job napping, you might consider going into criminal defense.  The clients may not be too happy about your dozing, but thanks to judges like these on the 6th Circuit, there probably isn’t much they can do about it.  As long as it’s just a little nap.


H/T Volokh Conspiracy


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