Copyright (c) 2001 Loyola Law Review
Loyola Law Review
CASENOTE: BURDINE V. JOHNSON - TO SLEEP, PERCHANCE TO GET A NEW TRIAL: PRESUMED PREJUDICE ARISING FROM SLEEPING COUNSEL
47 Loy. L. Rev. 1585
James M. Donovan
Few images slice as deeply into our self-image as a fair society as that of a defendant on trial for his very life depending upon the services of an attorney who naps throughout the proceedings. Although this scenario is not new, the courts have yet to resolve definitively how they should respond to a defendant burdened with snoozing counsel. This note discusses the outcome of the latest attempt. 1
In the last twenty-five years, the judiciary's analysis of the Sixth Amendment right to counsel has moved from a consideration of who should have counsel, to the quality of the counsel necessary to fulfill that constitutional obligation. 2 One arena of this activity has been the identification of circumstances that are intrinsically so detrimental to the judicial process that no proof of actual damage need be offered before the defendant is granted a new trial. 3 Only recently have the courts begun to address the criteria by which such determinations are to be made and to identify specific circumstances that meet those criteria. 4
The question of whether an attorney's sleeping during trial qualifies as one such circumstance has arisen more frequently than the general public might imagine. 5 The damages inflicted by this behavior extend beyond perceptions about the fairness of the judicial process. The courts, however, beyond any public relations concerns, must confront the technical issue of how such behavior impacts the trial of a defendant. The Fifth Circuit's decision in Burdine v. Johnson 6 presents the latest articulation ...
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