Lawyer’s Nap During Murder Trial Created ‘Uncurable Error’

An attorney who nodded off during a first degree murder trial violated a defendant’s constitutional right to counsel, the Massachusetts Supreme Judicial Court said in an opinion Thursday.

“A defendant whose attorney is unconscious and thereby constructively absent for significant portions of the proceedings or during an important part of the proceedings” has been deprived of their constitutional right to counsel, the opinion said.

The opinion sets the state court’s standards for evaluating claims of ineffective assistance of counsel based on an attorney’s sleepiness. 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.

The justices granted the defendant’s request for a new trial even though they lacked clear evidence that the attorney slept during a critical stage of the case. Their opinion recognized “the unique evidentiary hurdles facing defendants whose rights to counsel have been infringed due to a deprivation of counsel.”

Nyasani Watt, an indigent 20-year-old defendant, was found guilty of first degree murder in 2013. He requested a new trial in 2020 based on his and several lawyers’ observations that his lawyer dozed off during jury selection and a prosecution witness’s testimony, arguing that his attorney’s sleeping was a structural error that violated his right to assistance of counsel.

“Although any slumber by counsel during trial is distressing and detrimental, counsel’s constructive absence during either a significant portion of trial or an important aspect of trial so offends the constitutional protections surrounding the right to assistance of counsel that it renders the entire adversary process ‘presumptively unreliable’ and creates an uncurable error, ‘even if the error was ultimately harmless,’” the opinion said.

The case is Commonwealth v. Watt, Mass., No. SJC-13279, 1/11/24.