North Carolina Man Given New Trial After Attorney and Former Legislator Slept Through Trial

snooze13n-3-web
Nikita “Nick” Mackey (left), an attorney and former house representative from North Carolina, has secured a new trial for his client Nicholas Ragin, but not exactly as he had hoped. The United States Court of Appeals for the Fourth Circuit has tossed out Ragin’s conviction because Mackey slept through parts of his trial while serving as his defense attorney. However, Ragin spent 10 years on a 30 year conviction for conspiracy and racketeering.

3223CD8300000578-3489777-image-m-12_1457837627707Ragin was tried in 2006. He appeal was assisted by the testimony of other lawyers who were shocked by Mackey’s conduct. Attorney Peter Adolf for example said that the judge on the case “leaned into his microphone, because we were all sitting there and (Mackey) wasn’t moving and said, ‘Mr. Mackey’ . . . very loudly. Mackey then jumped up and sort of looked around and was licking his lips and moving his mouth and looked sort of confused and looked all over the room.” Hard to portray that as a trial strategy, even if you were going for that Matlock look.

The Fourth Circuit ruled that Mackey “deprived of his Sixth Amendment right to counsel when counsel sleeps during a substantial portion of the defendant’s trial.”

Mackey has previously been found to have failed to appear in court for prior trials in 2007 and 2008. In 2010, the North Carolina bar suspended his license for three years for failing to pay taxes.

Mackey had an equally dubious career as a police officer — reportedly resigning from Charlotte Police Department after 14 years after accusations were raised about the falsification of time sheets. Nevertheless, he was later elected sheriff of that department, but that election victory was overturned it after a local news investigation uncovered questionable voting tactics. That did not seem to bother voters who elected him in 2008 as a North Carolina state representative.

This is a new and important ruling for the Fourth Circuit, which held:

Although this is a case of first impression in this
Circuit, four other circuits have considered whether application of a presumption of prejudice under Cronic is warranted when a defendant’s counsel is asleep during trial. All of these circuits have held that prejudice must be presumed when counsel sleeps either through a “substantial portion of [a defendant’s] trial” or at a critical time during trial. . . .

We agree with other circuits and hold that a defendant’s Sixth Amendment right to counsel is violated when that defendant’s counsel is asleep during a substantial portion of the defendant’s trial.3 In such circumstances, Cronic requires us to presume prejudice because the defendant has been constructively denied counsel. For good reason – “sleeping counsel is tantamount to no counsel at all.” United States v. DiTommaso, 817 F.2d 201, 216 (2d Cir. 1987).

Here is the opinion: Ragin Opinion

Source: Journal Now

13 thoughts on “North Carolina Man Given New Trial After Attorney and Former Legislator Slept Through Trial

  1. Imagine you are the defendant and your attorney is dozing during the trial. Do you wake up your attorney during the trial or let him sleep?

    If you are the trial judge, how the heck can you let this happen? Stop the trial, send the jury out, and tell the defendant’s attorney that, if they fall asleep once more in the presence of the jury you will declare a mistrial and sanction the attorney.

    What bothers me most is that it took 10 years for the conviction to be set aside. If we are going throw someone in the clink for 30 years, the trial needs to be a fair one. It should not have taken that long to right that wrong.

  2. But isn’t one element of an ineffective counsel claim, that whatever the lawyer did wrong would have had a material effect on the outcome of the trial? I wonder what that was here? Oh well, I guess I should maybe reeed…..th…opinnnnnnun. . . . .nod. . . .nod. . . snore. . . .snore. . . zzzzzzzz

  3. The young brutha was charged with interstate pimping of minors and interstate cocaine distribution. There were forty witnesses. The attorney got bored and fell asleep. Too many witnesses all saying substantially the same thing…..

  4. A solution for this dork attorney would be mandatory injection of meth before each trial. That would keep him awake. The judge at trial who let him sleep and did not call for a mistrial needs to be removed from the bench for good.

  5. I like that the lawyer thinks the charges are political since he was running for office. I think the judges made a solid decision.

  6. The right to counsel envisioned by the sixth amendment is not an entitlement or right to ‘representation by an attorney’. The conflation of these two ideas results in the negation of several other unalienable rights.

    For instance, once a person hires an attorney or accepts a court appointed attorney that persons right to personally file papers or speak without leave of court is negated. This alone amounts to a curtailment of a defendant’s first amendment expression rights. The Court then becomes a zone where the defendant’s right to fully express themselves and their position in their defense is sacrificed and the attorney’s strategic defense decisions enables such an attorney to actually ignore the defendant’s position and to make the final decisions with respect to how the defense will be managed and what line of defense will be employed.

    As long as the attorney puts forward what can later be subjectively determined by an appeals tribunal as a sufficient showing of zealousness and procedural skill the attorney is generally home-free and the defendant is saddled with the outcome of the case.

    The reason for all this seems to be the doctrine expressed in Corpus Juris Secundem under the topic of ‘Attorney and Client’. We are told that an attorney’s first duty is to the Court as an officer of that Court. His second duty is to his client who is rendered a ward of the court. When one examines the meaning of the word ‘ward’ we discover it entails a person who is of an unsound mind, unable to conduct their own business affairs.

    The hiring of an attorney or acceptance of a court appointed ‘attorney’ implicitly renders a defendant to the mental state of a ‘ward’. The rights of those persons judicially determined to be ‘wards’ amount to no more than privileges subject to the subjective and perceived authority of some judicial tribunal. The rights expressed in the Bil of Rights were never subject to such subjective authority. Rather those governmental servants subjected themselves to the plain language of the Bill of Rights when they took their oath.

    And finally, ‘Counsel[s]’ as envisioned by the sixth Amendment were not officers of the Court, subject to that subjective and perceived authority, and suffering from the conflict of interest that arises from that condition.

  7. I would have said the problem was the typically onerous workload of attorneys, if not for his well documented troubled past at various jobs over the years. Past behavior predicts future, so his irresponsibility will likely continue.

    I would like to add that when a Republican behaves egregiously, his politics are often noted. However, I had to do a bit of searching to discover Mackey was a Democrat in the House.

    His personal politics are immaterial to his job issues. I merely point this out as the media applies different standards to conservatives and republicans.

    This also illustrates how voters are willfully blind to serious wrongdoing on the part of their candidates, and vote for them anyway. How will we ever get change in politics when we are so irresponsible at the voting booth?

  8. The best witness is the juror who sat directly across from counsel table and could see this dork sleeping. The trial judge was either not paying attention or not doing his job. Both the lawyer and the trial judge need to be excluded from trying cases. Both are asleep at the switch. A lot of resources have been wasted due to this mess. It can not be allowed to happen again. The judge can go to private practice and do divorces and the sleepy lawyer can get a job cleaning outhouses.

  9. Conspiracy, conspiracy, conspiracy.

    Defense attorney got paid for the case. Judge got his salary. The jury got its payoff. The prosecutor and others involved in court work got their cut at the state’s expense.

    Now another trial and even more money distributed from the state’s coffers for the public employees at the expense of the 99%.

    The perpetrator gets off with a not guilty plea. And then, sues the state for trial violation of civil
    rights and becomes a member of the 1%.

    Great 10 yr investment by perp..

    Stranger things….!

  10. Sham. Total sham. This is a gimmick….attorneys know if they are half assed then the client can “win”…..so they wouldn’t be doing their “job” if they really did it. I say if forcible drugging is fine for the client….so he can stand trial….then the defense attorney ought to drugged too.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s