I've previously mentioned many good reasons for seeking a trial continuance, including motions that cited the start of deer season in Arkansas, the appearance of one's favorite team in the playoffs, the seven puppies recently born to one's Cavalier King Charles Spaniel, and the need for a brief delay so that counsel could enter an Ernest-Hemingway-look-alike contest. You don't typically see such rationales cited in motions asking a judge to recuse him- or herself from a case, probably since those motions often involve accusing a judge of bias and so are more serious than a scheduling request.
But now you have.
This conduct is an open, blatant and obvious indication of Judge Elia Cornejo Lopez’s animosity, dislike and disdain for counsel and her desire to not have counsel practice in her court before her, possibly exacerbated by his refusal to purchase a case of Girl Scout cookies from her daughter’s troop.
So wrote a defense attorney, who according to the Brownsville Herald cited this "possibility" in a motion asking the judge to recuse herself from a case. The motion states that the judge has previously removed counsel from acting as an appointed defense attorney, and that on one occasion the judge "directed" counsel to speak with her court coordinator, who told him that Lopez wanted him to buy some Girl Scout cookies. The motion does not go so far as to accuse the judge of demanding a bribe, but suggests that counsel's refusal to buy said cookies "possibly exacerbated" the judge's existing bias against him.
Let us assume that the judge did, in fact, make the cookie request. This is the sort of thing that a lawyer might feel compelled to comply with, even if it was just a "suggestion," for fear of irking a judge. Because of the inherent risk of coercion, intended or not, judges really are not supposed to make these sorts of requests. True, here we are only talking about a few bucks for Girl Scout cookies, but the principle is the same … sort of.
And I guess this really should not have been surprising, but as Jonathan Turley has pointed out, ethics committees in at least three states, including Texas, have in fact considered the specific dilemma of judicial entanglement with Girl Scout cookie sales.
The Texas committee ruled in 1988 that it "perceive[d] no violation of the Code of Judicial Conduct in the described activities" if engaged in by the judge's staff, which is not too far removed from the judge doing it. Oklahoma, however, has taken the contrary position (as it often does where Texas is involved). California, in its wisdom, has split the difference, holding that a judge "may accompany her/his daughter selling Girl Scout cookies, but must not make judicial position known or otherwise use it to advance sales." So no wearing the robe door-to-door or entering any injunctions requiring cookie purchases.
Still, there is a separate question whether this is something you would ever put in a recusal motion, and I would say the answer to that is no. If you have solid evidence of bias, you don't need the cookie allegations, and if you don't have it … well, maybe you should not be filing the motion at all. It's a fairly high-stakes approach, and throwing in a cookie complaint doesn't seem to fit.
Of course, there is another way to avoid this whole dilemma, namely just buying the damn cookies in the first place. It might be mildly unethical for a judge to demand it, but dude! Those are some good cookies.
Actually, it's not accurate to call John Mark Heurlin a "lawyer" at the moment, which is the whole point of this latest proceeding against him (the fourth or fifth depending on how you count). The first three involved fees. For example, in 2005 he was suspended for (among other things) refusing to turn over settlement money to his client because of a fee dispute. Mishandling client money is one of the cardinal sins of legal ethics, and here it contributed to a lengthy suspension. The order said Heurlin could seek reinstatement after two years, but he never did.
Nor did he ever actually stop practicing law.
This is a problem not just because the bar told him to stop but also because the unauthorized practice of law is a misdemeanor in California (like most places). According to this 2011 order, Heurlin didn't tell his partners he had been suspended, and when they found out (from opposing counsel), they voted to dissolve the partnership and they have all been fighting over the assets ever since. In the course of that fight and related matters, Heurlin continued to hold himself out as an attorney, using letterhead that said "Attorney at Law," signing his name "John M. Heurlin, Esq.," and signing a declaration stating that he was licensed to practice law in California. In 2011, citing this and the prior misconduct, the bar court recommended that he be disbarred.
One aggravating factor, the judge noted, was that Heurlin insisted there was nothing wrong with this, even though he was told by the Court of Appeal back in 2006 that it was troubled by his "cavalier" attitude toward his suspension (which at the time he was referring to as his "disability"). Five years later, his attitude had not improved:
Despite the appellate court's clear warnings and the legal authority it had provided to him, respondent argued before this court that terms such as “Esq.,” and “counselor at law,” “have no meaning in the State of California.”... At trial, respondent cross-examined witnesses about Esquire magazine in an attempt to show that the use of the honorific “Esq.” after the name of a suspended attorney … has no legal significance ….
For those of you thinking, that can't mean what I think it means, oh yes it can. It is a little clearer in the more recent ruling on Heurlin's appeal of the recommendation:
Heurlin further argues that the word "Esquire" has many meanings, including that of property owner and subscriber to the magazine Esquire. This argument is unconvincing because we do not focus on a single usage of a particular word [but rather] the context of the words and the general course of conduct.
(Emphasis added.) Yes, that's true. It's also unconvincing because, for example, no human being on the face of the Earth would ever put "Esq." after his name to indicate that he subscribes to Esquire. Let me know if I'm wrong about this, by all means. Yours sincerely, M. Kevin Underhill, J.D., Esq., Sci. Am., Nat. Geo., Sprts. Ill. (Swimsuit).
Heurlin's position appears to be that he can describe himself as an attorney because he is representing himself, a position that cannot be described as correct. From here, the recommendation goes to the state supreme court, which I am guessing will accept it. Whether or not that will matter to this guy remains to be seen.
As Popehat has already covered in detail here (see also Adam Steinbaugh), Charles Carreon has again escalated his frivolous lawsuit against Matthew Inman (creator of The Oatmeal), IndieGoGo, and two charities (the American Cancer Society and the National Wildlife Foundation).
This time, he filed an application for a temporary restraining order, seeking on an emergency basis to stop the transfer of the money Inman raised to the two charities. There are lots of reasons why this filing is clearly just a BS attempt to hassle the defendants further, but let's go with two for now: (1) sending the money to the charities is exactly what Carreon supposedly wants to happen anyway; and (2) he knew that the money was going to be sent by July 2 at the latest, but he filed for the TRO so late that it would have been almost impossible for the court to consider it by then.
Okay, three: the idea that an impending transfer of money to these charities was an "emergency" that needed to be dealt with immediately is just nonsense. Oh no! Don't let the American Cancer Society and National Wildlife Federation get ahold of that cash! Who knows what they might do with it?!
The defendants' oppositions (which you can find via the links above) are both very well done and completely thrash Carreon's ridiculous arguments. As I also mentioned here, Carreon doesn't have standing to sue just by virtue of the fact that he donated $10 in an effort to create standing. The EFF makes that point on Inman's behalf, and also explains (though it is pretty obvious to everyone but Chucky) that Inman's comments and fundraising campaign are protected by the First Amendment. IndieGoGo also shows that as an online service provider, it is immune under the Communications Decency Act anyway, and convincingly argues that Carreon can't enforce the California charity law that he's pretending to care about. (This is why he sort of tried to join the California Attorney General, or whatever it is he was trying to do.)
Not that it was unclear before, but this is just further evidence that Carreon's real goal is to hassle the defendants. If so, that violates the legal-ethics rules as well as potentially subjecting him to sanctions under the Federal Rules of Civil Procedure. And after he loses on the TRO (if he doesn't withdraw it first), he's likely to also lose an "anti-SLAPP" motion, which would require him to pay the defendants's fees and costs.
The first rule of being in a hole is to stop digging. One of quite a few rules that Charles Carreon seems to be unfamiliar with.
Update I: Jonathan Lee Riches has now jumped into the fray with a frivolous lawsuit of his own, which, comically, he has filed against Charles Carreon. I am not condoning frivolous lawsuits by anyone, but think it's remarkable that even Jonathan Lee Riches is on the right side of this contest.
Update II: Popehat reports here that Judge Chen of the Northern District of California has asked for proof that the money has in fact been paid over to the charities, which very strongly suggests that the application for TRO will be denied tomorrow on the grounds that it's moot (and possibly for other reasons). No hearing yet. When and if there is one, I will do my best to go watch and then report.
There has understandably been enormous interest in Charles Carreon's crusade against (1) The Oatmeal, (2) some charities, and (3) reality. In fact, not since somebody claimed she was bamboozled by a Crunch Berries box (see "Reasonable Consumer Would Know Crunch Berries Are Not Real, Judge Rules" (June 2, 2009)) has there been so much interest in a lawsuit. Or at least the kind of lawsuit that is likely to end up here.
Ken at Popehat wrote this post the other day analyzing the complaint and suggesting that Carreon's claims are at the very least dubious and hypocritical (Ken went with the legal term, "full of shit"), and as usual his post is dead-on. Since he's done that, I thought I'd discuss the related but different topic of legal ethics.
First, to some of you "legal ethics" may seem like an oxymoron, but it's not, really. The legal profession is governed by ethics rules in addition to the generally applicable legal duties that apply to everyone, other than the members of whatever administration is currently in power, of course. Every state has its own rules, although by now they almost all have some version of the ABA's Model Rules, which aren't binding but are influential. You can find the Model Rules here, or here (PDF) if you happen to need the Russian translation (I guess you never know).
These rules cover topics including (and this may also surprise some) competence, fees, conflicts of interest, and what a lawyer can and can't say in certain circumstances. These rules can be vague and some are controversial, but many are just common sense. Violating them can result in a "reprimand" (unpleasant but not career-ending), a suspension of the license to practice law, or even disbarment. Committing an actual crime is often (though not always) also a violation of the ethical rules, but it is possible to violate the rules without violating any laws.
So let's consider Carreon v. Inman. As Ken has noted, because Carreon filed in federal court, Rule 11 is looming over his case. This is not strictly an ethics rule, but it's a rule of civil procedure that requires lawyers to certify that papers presented to a court are supported by the law and facts and aren't for an improper purpose like harassment. Violating Rule 11 can lead to a fine or an order to pay the other side's fees and costs, but doesn't directly threaten a license. The court could refer the matter to the state bar, though.
Attorneys practicing in federal court are subject to the ethics rules of the state where the court is located, and also the rules of the state(s) in which they are licensed. That can get complicated, but isn't here. Carreon is licensed in California, and according to the California Bar's website (this is all based on publicly available info), he is also licensed in Oregon, but his status there is "inactive." He lives in Arizona, but doesn't appear to be licensed there. So California's rules will apply.
It is worth noting, and the California Bar already does note it, that Carreon's license was suspended in 2006 by both California and Oregon for practicing law in Canada without authorization. He was representing a U.S. company in Vancouver, but never took the bar there or applied for a "foreign lawyer" permit. More unfortunate was his decision to use some of the money from a settlement trust fund to pay a personal expense, a "money judgment obtained for a residential lease he had signed" in connection with the job. He may have legitimately thought he was entitled to do that, but the company disputed it, and if there's one thing that will almost always get you in trouble, it's messing with (even disputed) client funds. Anyway, the suspension lasted 60 days, and Carreon has been able to practice law here ever since. That's too bad for a number of reasons, partly because California's current rules are more limited than elsewhere and because it is still in the process of converting its rules to the Model Rule format, which is a pain in the ass for me here.
In this case, Carreon doesn't really have a client, since he's representing himself. So it would appear that many rules intended to protect clients, like conflict-of-interest rules and, let's say, rules about not messing with (even disputed) client funds, would not apply here. (If you're thinking that self-representation could cause problems under Rule 3-120 (Model Rule 1.8(j)) "Sexual Relations With Client," think again, smarty—the definition of "sexual relations" requires that it involve "another person." They thought of that, apparently.)
Carreon does have a client elsewhere, though—FunnyJunk.com—and he may have violated a rule in the course of that representation. Explaining in an interview why he never filed the lawsuit he originally threatened Inman with, Carreon said he had been "told" all of Inman's comics were removed from the FunnyJunk website but that turned out not to be true. Well, presumably he was told that by his client, and if so then he was publicly disclosing confidential and privileged information (a potential admission of infringement, in fact). Unless the client consented for some reason (or Carreon and FunnyJunk are really the same entity), that would violate Rule 3-100 (MR 1.6).
Then there's Rule 3-110 (MR 1.1), which requires a lawyer to be "competent." In practice, though, a lawyer's got to be very bad, or repeatedly not very good, in order to violate this rule; if that's the case, he or she has probably violated other, more specific rules and will be disciplined for that instead.
Such as, here, Rule 3-200 (MR 3.1), which prohibits a lawyer from bringing cases or making arguments that are "frivolous" (meaning "bogus" or "unfounded," not "full of fun and frivolity"). As Ken's post suggests, there are already several reasons to think that this case is frivolous, or even that the complaint states some facts that aren't true. One questionable case or three is usually not enough to get sanctioned, as the Crunch Berries saga demonstrates, but it could be different if the BS gets especially deep here, as it very well may.
Oh, what about the possible lying? Well … California doesn't exactly have a rule against that, at least generally speaking. You can't lie in advertising (Rule 1-400) or to a court (Rule 5-200), but at the moment there are no equivalents to the more general provisions in Model Rule 4.1 (no lying to third parties) or 8.4(c) (no being dishonest in general). That doesn't make it okay to lie, though. As the committee considering the new rules has said, there are other very good (and binding) reasons not to do that, so nobody should rely on the lack of a general no-lying rule. (It has recommended adopting 8.4 anyway.)
Ultimately, dumb as the lawsuit is, so far Carreon probably has not violated any of California's current ethics rules, with the possible exception of 3-200 if the complaint turns out to be frivolous or false. This is not as crazy as it may seem, because the rules (California's, at least) are mostly aimed at protecting clients, and no clients appear to have been harmed in the making of Carreon's saga. So far. Which is not to say that there won't be repercussions, since Rule 11 and the anti-SLAPP statute could end up having real financial consequences here. But California has not yet adopted some of the broader ethical rules that could have caused Carreon more problems.
Why it has not done that, but has taken the time to debate whether the words "another person" should be added to the no-sex rule, is a topic for another day.
This one isn't new -- in fact, it happened in 1936 -- but I wanted to add it to my archive of such things.
Granted, Winslow was acting in different legal capacities here (at least three of them), and my knowledge of the legal, ethical, and/or probate rules that applied in Massachusetts in the 1930s is a little spotty. But typically, if one feels the need to hire attorneys to represent oneself both as plaintiff and as defendant in the same case, there's something that needs to get untangled. I'm thinking probably someone else should have been appointed as administrator of the father's estate.
That last sentence isn't clear as to whether he hired one group of attorneys to represent him in both capacities, or had one of his legal selves retain separate counsel. But it seems like either way, he'd have been adverse to himself in this matter and so all his attorneys would have had to be disqualified because of the conflict of interest.
Whether he could then have represented himselves in that situation, I have no idea.
I've never thought the whole identical-twins-switch-places thing was all that amusing, and I might even rank it one step below its leprous cousin, the inexplicably frequent parent-child-body-swap farce. And that's when Hollywood does it. It's even less likely to go well in court.
In Kansas City last Thursday, prosecutors moved to have defense lawyer Dorothy Savory held in contempt after it turned out the man she brought to a preliminary hearing was not her client, but his identical twin brother. According to the Kansas City Star, Judge Kenneth Garrett called the case and asked Savory whether her client was in custody: "She replied no, that he was in the courtroom. Garrett then asked 'Mr. White' to come forward."
He did, or at least a "Mr. White" did.
When the prosecutor called the victim to the stand, she asked her if she could identify the man who attacked her. She identified the man sitting next to the defense lawyer. Presumably, Savory was then ready to spring her trap.
But if she was, the trap was defective. "Let the record reflect that the witness has identified someone other than my client as the man who attacked her, namely this person sitting here ... who, yes, may look exactly like my client because they are identical twins, but is in fact not him, and let the record also reflect that I've just realized this isn't going to work and I really should have thought this through a little more. Nothing further, your Honor."
If this wasn't what Savory planned to try, it's hard to see why her client was also at the courthouse. At about the time of the (mis)identification, the arresting officer (in the hallway waiting to testify) noticed the guy he had arrested getting off the elevator. But wasn't he already in the courtroom?
This is the part where the hilarious hijinks come to light and everybody laughs, and then the defendant's parents get remarried, or whatever. Except Judge Garrett doesn't like that story, either. After a brief recess, he had a few questions for Savory, who, I'm pleased to report, denied everything.
"My client was not planning on testifying at all," she insisted, and then sprung another defective trap. "My client was not the one I called to come to the table. This honorable Court asked for 'Mr. White,' and that's who's at the table today, Mr. White." Well played, counselor.
"[I]t was presented to this Court ... that the person sitting at that table was your client," Garrett said, angrily. "Was it your intention to bring someone else up to this counsel table so she [the victim] could misidentify him?"
"No, your Honor," Savory replied.
Why did he come forward, then? (Maybe the twins fooled the lawyer, too.) Because "[she] asked me to," the other twin testified. (Guess not.) The only other explanation I can think of is that maybe the defendant was going to be late and they thought they would switch at some point. That's not quite as dumb as the identical-twin-misidentification plan, but it's still dumb.
Judge Garrett was so furious that he had to take a recess, probably so his robes didn't burst into flame due to the level of fury. Ultimately, he said he would let the presiding judge decide what to do with Savory. That hearing is set for January, and if Savory has a twin, she should try to talk her into covering that one.
See also "Judge Not Amused by Twin Antics" (in which an 18-year-old took her twin's place - and pleaded guilty - because her sister had a final that day); "Italian Lawyer Changed Places With Twin" (in which the twin, who was not a lawyer, appeared on behalf of a client); and cf. "When Does a DNA-Test Result With 99.9% Certainty Not Prove Paternity?" (in which the answer was "when the mother slept with each of two identical twins while in town for the rodeo").
Update: This report has some audio excerpts from the hearing, if you want to hear the sound of a bad argument going down in flames.
In a not-at-all surprising decision on Monday, the Illinois Supreme Court accepted a hearing board's recommendation that an attorney be suspended from the practice of law for at least one year. In addition to other alleged ethical violations, the attorney sought to hire a secretary who, in addition to general secretarial work and some paralegal work, would be required to have sex with the lawyer and his partner.
[L]aw firm looking to hire [an] energetic woman for their open secretary/legal assistant position. Duties will include general secretarial work, some paralegal work and additional duties for two lawyers in the firm. No experience required, training will be provided. Generous annual salary and benefits will be provided, including medical, dental, life, disability, 401(k) etc. If interested, please send current resume and a few pictures along with a description of your physical features, including measurements.
Emphasis added to the inappropriate part. The lawyer placed this ad on Craigslist, and got at least one response, from a woman who did think the request for her "measurements" was a bit odd but said she assumed the firm just wanted to hire an attractive secretary.
But that wasn't all, as the lawyer made clear in a follow-up email. Noting that the ad had been posted in the "adult gigs" section of Craigslist (which, ladies, is another definite red flag), he informed her that this would indeed be an "adult gig":
[I]n addition to the legal work, you would be required to have sexual interaction with me and my partner, sometimes together sometimes separate. This part of the job would require sexy dressing and flirtatious interaction with me and my partner, as well as sexual interaction. You will have to be comfortable doing this with us.
Comfortable so far? Great!
The next step is to set up an interview. When are you available to interview? I am free to interview today. Please let me know what your availability is.
Lastly, we've actually hired a couple of girls in the past for this position. But they have not been able to handle the sexual aspect of the job later. We have to be sure you're comfortable with that aspect, because I don't want you to do anything that you're not comfortable with. So ... we've decided that as part of the interview process you'll be required to perform for us sexually (i didn't do this before with the other girls i hired, now i think i have to because they couldn't handle it). Because that aspect is an integral part of the job, I think it's necessary to see if you can do that, because it'll predict future behavior of you being able to handle it when you have the job....
Thanks for your interest.
Strangely enough, the interest he was referring to was long gone, probably having fled screaming sometime around the end of that first sentence up above. The applicant instead reported the attorney to the disciplinary commission, which recommended a one-year suspension for the three counts alleged. The state supreme court agreed.
FYI, the attorney's "interview process" was found to have violated the ban on conduct that "tends to bring the legal profession into disrepute." The long-standing common-law rule against being astonishingly creepy was not cited, but probably also came into play.
As you know, prospective lawyers are required to go through a "good character" evaluation before being admitted to the bar. Not to say that every lawyer therefore has "good character," but the bar does try to do a little weeding. There is no bright-line rule excluding applicants just because they once stabbed a guy 33 times, but still some are questioning whether the University of British Columbia should have given one of its spaces to Sasan Ansari.
At the very least, maybe it should reconsider the scholarship.
According to the appellate decision, Ansari was convicted of killing Joshua Goos in 2006. Ansari owed Goos something like $90,000, money that Ansari later claimed he didn't want but had taken so he could have "peace of mind" while he went to law school. There was evidence that the money was to be used for an investment in some "overseas trading" Ansari was doing, which he claimed had to do with a contract for the sale of sugar from Brazil to Iran. (This is the kind of thing I did all the time to put myself through law school, so I see nothing suspicious about it.) By May 2006, Goos wanted his money back, and sent text messages to Ansari saying he wanted to get paid at an upcoming meeting or next time he would "not be coming alone." Unfortunately for him, though, this time he did come alone.
The two met in a car in the parking lot of a Vancouver country club, despite (or maybe because of) the fact that the lot was covered by surveillance cameras. Ansari later claimed that Goos threatened him with a knife but that he was able to disarm Goos, which was the last thing he said he remembered. So he did not remember stabbing Goos repeatedly, chasing him out of the car, catching him and possibly stabbing him some more, moving the body, driving to his brother's house, cleaning up, ditching the murder weapon and bloody clothes, and sending fake text messages to the victim's cell phone in an obvious attempt to set up an alibi. He was charged with second-degree murder, and relied mainly on the defense of "automatism," which I assume is Canadian for "didn't know what I was doing." The jury convicted him of manslaughter.
To some extent, therefore, it must have bought his story, but it is still surprising that Ansari was sentenced to only five years in prison, a little over two months per stab. The judge noted the evidence that Ansari had been under great stress, but did not buy the claim he was in a "dissociative state." While this was a "culpable homicide," Ansari had no previous criminal record. Also, the judge noted, while awaiting his murder trial Ansari had completed his first two years of law school at UBC, and "I am advised he is among the top students there." The five-year sentence was affirmed on appeal.
But Ansari was paroled after only two years. Last month, that parole was extended, partly because Ansari had been "accepted back to law school and will resume classes in September 2011." Mr. Goos' family - and most likely some students at UBC - are quite disturbed by this. So is Govin Rooptra, a scholarship donor who said in a letter to the family that he had been "staggered" to learn Ansari had been awarded $1,000 in Rooptra's name while awaiting trial (evidently due to the lack of a no-stabbings condition on the funds).
The university says it has no legal basis to prevent a student with a criminal record from attending the law school, and maybe that's true. Seems like schools do exercise discretion as to who they admit, though, or at least some did in my case, and I hadn't stabbed anybody at all (that I remember). Also, there is some question, I would think, as to whether someone who killed his partner in a questionable business deal would have the "fitness and good character" necessary for bar admission. The parole board did find that Ansari presents a "low risk or low-moderate risk for future violence," but also noted that he continues to exhibit "a victim stance, a sense of entitlement and [an] anti-authority attitude," does not like to be criticized, and can sometimes be "argumentative and challenging."
Also, he stabbed a guy 33 times.
The Law Society of British Columbia would not comment on the case specifically, but did say that any case that involved a serious criminal conviction would be considered "very carefully."
Answer: A lawyer is "effective" for this purpose as long as he or she is conscious for a "substantial portion" of trial. See, e.g., Muniz v. Smith, No. 09-2324 (6th Cir. July 29, 2011).
To prove ineffective assistance, a defendant usually has to prove that counsel's performance was deficient and that it actually prejudiced the defense. Strickland v. Washington, 466 U.S. 668 (1984). But some situations are considered outrageous enough that a court will assume there was prejudice. Is sleeping through trial one of those situations?
It is a little scary to consider that four federal circuits have now considered the question of "when sleeping by trial counsel becomes the effective denial of counsel" for this purpose. But they have, and the "substantial portion" test is the result. (A "not insubstantial" portion will also work, as the Fifth Circuit once ruled in a death-penalty case where defense counsel had been "repeatedly unconscious" during trial.)
The court in Muniz didn't have to decide exactly what "substantial" meant, because the only evidence Muniz had was an affidavit from one juror saying it was apparent that the attorney "was actually sleeping through a portion of his client's testimony." That portion was the portion where he was getting cross-examined, which seems like a fairly important portion, but the court held the standard wasn't met:
This [affidavit] alleges only that Muniz’s attorney was asleep for an undetermined portion of a single cross-examination. The record shows that Muniz’s attorney was not asleep for the entire cross since he objected near the end of the questioning. This is especially significant, given that the total cross-examination was fairly short, spanning only 26 pages of trial transcript. Muniz’s lawyer therefore must have only been asleep for a brief period. This is in contrast to [another case] in which the trial judge himself "testified that [defense counsel] 'slept every day of the trial.'"
He couldn't stay awake for the entire cross, no, but he did perk up there at the end.
So, this meant Muniz had to prove both parts of the Strickland test without the help of a presumption. The first part of the test asks whether the representation was deficient, meaning that counsel was not acting with "reasonable professional judgment." To its credit, the State did not try to argue that "Muniz's attorney fell asleep at trial because in his 'reasonable professional judgment' it was the best course of action." (Could unconsciousness ever be the best course of action? Depends. How badly are you losing?)
But Muniz still lost under the second part of the test, because he could not "show that there is a reasonable probability his counsel could have prevented either of [two allegedly] prejudicial events from occurring had he been awake."
I guess if things are going that poorly, you might as well try to get a little shut-eye.