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.
Ragin 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