Lawyers urged to stay alert on trial essentials

Recent rulings in Massachusetts have sharpened the standards for when a defense attorney’s slumber during a trial can trigger a new trial, highlighting the stakes for lawyers who risk dozing off in the courtroom.

Massachusetts court sets dual test for sleeping counsel.

In Commonwealth v. Watts, the defendant was convicted of first‑degree murder. A different lawyer took over after the conviction, and the defendant told this lawyer the first one had “slept during portions of the trial.” For reasons not explained, the new lawyer “dismissed the issue as unmeritorious” and did not investigate further. The defendant then hired a third lawyer to handle the appeal. Because the third lawyer learned of the alleged naps only during oral argument, it was too late to raise the issue on direct appeal. She filed a new‑trial motion anyway, arguing this was “newly discovered evidence.” The high court was more receptive. “It is well established,” its analysis began, “that a person may be deprived of counsel in certain circumstances even though counsel is present physically.”

The judge who heard this motion “credited the affidavits” but held they were not enough to show a constitutional violation: “trial counsel’s slumber neither rose to the level of structural error nor prejudiced the defendant’s case.” The high court, however, was more receptive. “It is well established,” its analysis began, “that a person may be deprived of counsel in certain circumstances even though counsel is present physically.”

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Facts of the Watts case

The defendant, convicted of first‑degree murder, claimed his original counsel fell asleep during the trial. After the conviction, a second lawyer dismissed the allegation as “unmeritorious.” A third attorney, handling the appeal, learned of the alleged naps only during oral argument, too late for the direct appeal.

She filed a new‑trial motion, presenting affidavits from observers who attended the trial. The defendant and his mother testified that the lawyer “recurrently and during significant moments” slept, citing jury selection and the testimony of a key prosecution witness. A co‑defendant’s counsel reported that the attorney “slept at least once during testimony” and that his “eyes were closed several times throughout the trial.” One juror could not recall any specific incident, while a prosecutor admitted to seeing the lawyer snoozing “on several distinct occasions” and even having to “rouse” him during a picture‑showing.

The trial judge found the affidavits insufficient to prove a constitutional violation, stating the lawyer’s slumber did not rise to the level of structural error or prejudice.

From a broader perspective, the decision reflects a growing judicial willingness to treat attorney inattentiveness as a tangible breach of a defendant’s right to a fair trial. While the Constitution guarantees representation, courts increasingly scrutinize not just the presence of counsel but the effectiveness of that representation in real time.

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How other circuits have handled the issue

Before the Massachusetts ruling, the Fourth Circuit and three other circuits applied a “substantial portion” test, focusing on the amount of time an attorney was asleep. The Second Circuit emphasized whether naps occurred during “critical times.” Those standards differed, but all agreed that merely being unconscious for a short stretch did not automatically constitute ineffective assistance.

Massachusetts’ approach now requires proof that either the duration was significant on its own or that the sleep occurred during an important trial segment. The court’s language, “a defendant whose attorney is unconscious … and thereby constructively absent,” signals that even brief lapses can be fatal if they intersect with key evidence or testimony.

In practice, this means defense teams must document any observable drowsiness and be prepared to argue its impact. The decision also raises questions about whether similar standards will spread to other states, given the lack of a uniform national rule.

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Implications for criminal defense practice

Lawyers now face a clearer, though still subtle, risk: sleeping through any portion of a trial could jeopardize a client’s case, especially in capital matters.

Defendants can cite such evidence to seek a new trial, but success depends on the court’s assessment of both the quantity and quality of the sleep. For attorneys, the decision serves as a reminder to maintain vigilance throughout proceedings, perhaps by arranging short breaks or using support staff to monitor attentiveness.

Ultimately, the case illustrates that the legal system expects counsel to remain engaged, especially when a life hangs in the balance. While the ruling does not impose an absolute “no‑sleep” rule, it narrows the margin for error, making the courtroom a place where even a brief nod can have lasting consequences.