>
> The Houston Chronicle described the trial of George McFarland in Houston as follows:
>
> \*Seated beside his client . . . defense attorney John Benn spent much of Thursday afternoon’s trial in . . . deep sleep. His mouth kept falling open and his head lolled back on his shoulders, and then he awakened just long enough to catch himself and sit up-right. Then it happened again. And again. And again.
>
> Every time he opened his eyes, a different prosecution witness was on the stand describing another aspect of the Nov. 19, 1991, arrest of George McFarland in the robbery-killing of grocer Kenneth Kwan.
>
> . . . .
>
> Court observers said Benn seems to have slept his way through virtually the entire trial.\*
>
> George McFarland’s case is still pending in the courts. The presiding judge said that the Constitution guarantees a defendant a lawyer, but it does not guarantee that the lawyer must be awake. The Texas Court of Criminal Appeals upheld the conviction and sentence on direct appeal, McFarland v. State, 928 S.W.2d 482 (Tex. Cr. App. 1996), over a dissent by Judge Charles Baird, joined by Judge Morris Overstreet, which argued “[a] sleeping counsel is unprepared to present evidence, to cross-examine witnesses, and to present any coordinated effort to evaluate evidence and present a defense.” Id. at 527. The Court upheld the conviction and sentence again on post-conviction review. Ex parte McFarland, 163 S.W.3d 743 (2005). Judges Baird and Overstreet were no longer on the Court and there were no dissents.
>
> SOURCE: [TOTOKITA3: Daftar Situs Toto Togel dan Login Toto Slot 4D Gacor Hari Ini](http://www.secondclassjustice.com/?p=196)
My question here is why would a judge tolerate anyone but _especially_ the attorneys representing their clients sleeping in the court room?
---
### Author:  [@AK84](https://boards.straightdope.com/u/AK84)
#### Post date: [June 23, 2014, 7:21pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/4 "2014-06-23T19:21:10Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> It doesn’t have a practical impact on the actual counsel. It just gets the defendant a new trial. Nobody goes up for a disciplinary hearing or anything. The standard is pretty high, really:
😕 How is ineffective assistance \*not \* professional negligence then?
---
### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [June 23, 2014, 7:33pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/5 "2014-06-23T19:33:39Z")
> [@AK84](#):
>
> How is ineffective assistance \*not \* professional negligence then?
What’s the definition of ineffective in this context? If we use the meaning of “not producing the desired effect” than you could argue that any defense counsel, no matter how competent, that doesn’t result in an acquittal is ineffective (as is any prosecution which doesn’t result in a conviction).
---
### Author:  [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)
#### Post date: [June 23, 2014, 7:37pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/6 "2014-06-23T19:37:47Z")
> [@AK84](#):
>
> 😕 How is ineffective assistance \*not \* professional negligence then?
It is a lot of the time. Why do you assume otherwise?
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### Author:  [@AK84](https://boards.straightdope.com/u/AK84)
#### Post date: [June 24, 2014, 12:36pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/7 "2014-06-24T12:36:00Z")
> [@Richard\_Parker](#):
>
> It is a lot of the time. Why do you assume otherwise?
I am not. Just asking how and when ineffective assistance is not Professional negligence.
---
### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 24, 2014, 1:35pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/8 "2014-06-24T13:35:51Z")
Because the US Constitution requires a higher standard of care than the licensing boards (state bar associations), or tort law. It’s not malpractice _per se_ to handle a case imperfectly. As you noted your OP, an attorney’s judgment call which turns out to be erroneous may give rise to an ineffective assistance appeal.
---
### Author:  [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)
#### Post date: [June 24, 2014, 1:54pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/9 "2014-06-24T13:54:57Z")
I’m not sure I agree that a non-negligent error in judgment can give rise to an ineffective assistance claim, in part because the showing of prejudice is almost impossible to make unless the error is really quite severe (like overlooking an affirmative defense).
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### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 24, 2014, 2:11pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/10 "2014-06-24T14:11:57Z")
I sort of took that as read based on the fact that very few meritorious ineffective assistance claims result in sanctions or civil suits. However, after looking into it a bit further it appears most jurisdictions require the claimant-defendant to [prove his innocence](http://moritzlaw.osu.edu/osjcl/Articles/Volume5_1/Bennardo-PDF.pdf) to recover on such suits. So maybe it’s a hole in the law after all.
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### Author:  [@Hello\_Again](https://boards.straightdope.com/u/Hello_Again)
#### Post date: [June 24, 2014, 2:12pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/11 "2014-06-24T14:12:48Z")
For example, failing to inform a non-citizen criminal defendant that a plea bargain may have immigration consequences has been found to be ineffective assistance of counsel. Prior to that ruling, it was not generally thought that a criminal defense attorney needed to be competent to advise on immigration matters if s/he did not hold themselves out as an immigration attorney.
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### Author:  [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)
#### Post date: [June 24, 2014, 2:14pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/12 "2014-06-24T14:14:22Z")
> [@Hello\_Again](#):
>
> For example, failing to inform a non-citizen criminal defendant that a plea bargain may have immigration consequences has been found to be ineffective assistance of counsel. Prior to that ruling, it was not generally thought that a criminal defense attorney needed to be competent to advise on immigration matters if s/he did not hold themselves out as an immigration attorney.
The Supreme Court says that informing clients of potential immigration consequences was indeed the widespread view of what was required of criminal attorneys by their professional bars and associations. That was part of the basis for the decision.
---
### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [June 24, 2014, 2:19pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/13 "2014-06-24T14:19:19Z")
_Strickland_ has two prongs to show: first, that the attorney’s performance fell below the objective standard required for professional representation, and secondly that this resulted in definite prejudice to the client.
In other words, it’s not enough to show that your lawyer fell asleep at trial: you also have to point to some action that he failed to take while asleep and how that failure hurt your case.
**Richard Parker** is right: lots of less serious errors at trial can be characterized as “strategic choices.” _I didn’t object to the blatant hearsay because I didn’t want the jury to believe we were trying to hide something._
But this discussion gives me a chance to do a shout-out to an Illinois case, _People v. Lefler_, 689 NE 2d 1209 (Ill. App. Ct 5th, 1998), which features some of my all-time favorite appellate language. _Lefler_ involved a burglary suspect who was apprehended in part because of a police dog named Cain tracking his scent from the scene of the crime. Illinois, however, as a matter of law did not permit “bloodhound” evidence to be used at trial. On appeal, Lefler raised two issues: ineffective assistance of counsel for not objecting to the bloodhound evidence, and plain error for the use of the bloodhound evidence.
The opinion’s opening sentence:
> [@](#):
>
> This case features the mark of Cain and questions whether counsel was able.
And some other choice quotes:
> [@](#):
>
> The State initially concedes that “bloodhound evidence” is inadmissible. It suggests, however, that Cain’s performance is not prohibited by the “bloodhound evidence” prohibition. The State tenders the novel approach that “bloodhound evidence” is limited to bloodhounds. It urges that the rule’s evidentiary ban is not intended to apply to German shepherds, particularly highly educated German shepherds like Cain. Cain matriculated to and graduated from the St. Louis Police Department Canine Training Academy. The value of an academy-trained police dog is beyond dispute and not in question here, nor is the intelligence and physical prowess that make German shepherds the breed of choice for such duty. Whether the trailing or tracking is performed by an academy-trained German shepherd or the less sophisticated bloodhound, the evidence’s underlying fallibility remains the same. The bar against “bloodhound evidence” addresses a class of evidence innate in its unreliability and potential for prejudice.
And a great illustration of the difficult uphill climb a _Strickland_ claim faces:
> [@](#):
>
> Criminal defense lawyers must assist defendants in a way that the constitution’s guarantee to “assistance of counsel” contemplates. The constitution contemplates assistance that engages evidentiary rules to shield an accused from a decision based on unreliable evidence.
> .
> .
> .
> Here, the march to verdict engages a parade of unconstrained error that defense counsel witnesses from the sidelines as a silent spectator. The prosecutor’s opening statement employs argument, his direct examination repeatedly shapes testimony with leading questions, and on several occasions, he elicits improper hearsay evidence. The record is replete with unchecked violations of established evidentiary rules.
> .
> .
> .
> A brief passage from Sabalo’s testimony, however, exemplifies an abstruse adversarial silence that marks these proceedings. As previously noted, proper objection would have prevented Sabalo’s testimony in its entirety. See Cruz, 162 Ill.2d at 370, 205 Ill.Dec. at 371, 643 N.E.2d at 662. Beyond such failure, counsel allows the testimony to ensue in rather remarkable fashion. It exceeds anything admitted in those jurisdictions that deem dog-tracking evidence reliable. Sabalo critiques Cain’s performance:
>
> > [@](#):
> >
> > "Q. How did Cain do?
> > A. Extremely well.
> > Q. Why do you say that?
> >
> > * * *
> >
> > A. On this occasion he never raised his head up. His head was completely down, his nose was probably one or two inches off the ground the whole time. And he pulled extremely hard and continuously.
> >
> > * * *
> >
> > Q. Did the dog end up finding anybody or stopping?
> > A. He didn’t find a subject or a suspect. He got to Manning, which is approximately a block and a half, two blocks away. He went half way down Manning, and he just stopped. And he is looking around at me like, okay. Usually when he gets to an area where the track has ended, especially on a training track, there is a reward \* \* \*. He is looking at me to find out, hey, there is nothing here, and I know I tracked something here.
> >
> > * * *
> >
> > Q. Did the dog show any confusion or hesitation whatsoever?
> > A. None whatsoever.
> > Q. Okay. And what did that indicate to you?
> > A. This was actually one of his best tracks he had done." (Emphasis added.)
>
> It is difficult to discern the strategy underlying counsel’s silent observation of Sabalo’s translation of a German shepherd’s look into the spoken word, particularly where that gaze spoke to Sabalo out of court and assured the jury of Cain’s confidence in his own tracking ability. Further, counsel accepts without challenge Sabalo’s ability to observe Cain’s demeanor and from it weigh the comparative strength of the occasion’s performance. Sabalo removes confusion and hesitation from Cain’s manner and uses his perception of its absence to opine that Cain had a peak day.
>
> Counsel was apparently at a loss, unaware of what a prosecutor can properly do or legitimately prove. A reasonably effective attorney would never have tolerated the admission of this evidence. In spite of the strong presumption favoring professional assistance, counsel’s performance here falls below objective reasonableness.
> .
> .
> .
> The other unchallenged errors, demonstrative of counsel’s shortcomings, produced little cumulative harm to effect trial’s outcome. Moreover, the evidence elicited by improper technique or with inadequate foundation was not otherwise inadmissible. A timely objection would not necessarily have precluded the evidence’s substance from being heard, provided a proper method for its introduction was employed.
>
> In a perfect world, every defendant would receive the type of lawyering that assists in his defense. Such assistance would fall within that wide range of professional expertise and skill that comprises competence. In our world, however, a defendant can receive less assistance of counsel than the law actually anticipates, yet find no remedy. The sixth amendment right to counsel vindicates a poor legal performance only where that performance undermines confidence in trial’s outcome. Where we cannot discern a reasonable probability that trial’s outcome could change in the absence of counsel’s performance, we cannot afford defendant the relief he seeks because of that performance.
>
> Accordingly, based upon the foregoing reasons, we affirm.
Let that sink in a moment: The opinion provides a devastating indictment of sub-par attorney performance . . . and yet denies the appeal.
---
### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [June 24, 2014, 6:22pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/14 "2014-06-24T18:22:04Z")
> [@Bricker](#):
>
> In other words, it’s not enough to show that your lawyer fell asleep at trial: you also have to point to some action that he failed to take while asleep and how that failure hurt your case.
It seems the courts want to look into a crystal ball and determine the outcome of a trial under other circumstances. If we could do that we would not need a trial in the first place.
There is this I found in referenced in the _Strickland_ decision though:
> [@](#):
>
> Today we conclude that when an attorney for a criminal defendant sleeps through a substantial portion of the trial, such conduct is inherently prejudicial and thus no separate showing of prejudice is necessary. See Holloway v. Arkansas, 435 U.S. 475, 489-91, 98 S.Ct. 1173, 1181-82, 55 L.Ed.2d 426 (1978); cf. Rinker v. County of Napa, 724 F.2d 1352 at 1354 (9th Cir. 1983) (per curiam). Javor’s sixth amendment right to counsel was violated not because of specific legal errors or omissions indicating incompetence, but because he had no legal assistance during a substantial portion of his trial. The magistrate’s finding of no actual prejudice is not controlling because regardless of counsel’s participation when present, when a defendant is tried in the partial absence of counsel, he is prejudiced as a matter of law. Id.
>
> SOURCE: [724 F.2d 831: Eddie G. Javor, Petitioner-appellant, v. United States of America, Respondent-appellee](http://law.justia.com/cases/federal/appellate-courts/F2/724/831/265322/)
---
### Author:  [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)
#### Post date: [June 24, 2014, 7:01pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/15 "2014-06-24T19:01:35Z")
> [@Whack-a-Mole](#):
>
> It seems the courts want to look into a crystal ball and determine the outcome of a trial under other circumstances. If we could do that we would not need a trial in the first place.
That’s what appellate courts _do_. If an error is harmless, there’s not much point in giving the defendant a new trial.
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### Author:  [@LinusK](https://boards.straightdope.com/u/LinusK)
#### Post date: [June 24, 2014, 7:26pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/16 "2014-06-24T19:26:39Z")
> [@Whack-a-Mole](#):
>
> It seems a difficult hurdle to claim ineffective assistance of council:
>
> My question here is why would a judge tolerate anyone but _especially_ the attorneys representing their clients sleeping in the court room?
You have to understand Texas politics. _Every_ state-wide public office is held by a Republican, and the job (as most of them see it) of appeals court judges is to uphold convictions. The sleeping lawyer is one example, but there are many others.
Charlie Baird, btw, was the last Democrat on the Court of Criminal Appeals. He was finally unseated (I think) in 2000.
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### Author:  [@LinusK](https://boards.straightdope.com/u/LinusK)
#### Post date: [June 24, 2014, 9:53pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/17 "2014-06-24T21:53:55Z")
> [@AK84](#):
>
> 😕 How is ineffective assistance \*not \* professional negligence then?
You’re talking about two different processes.
Whether someone should be disbarred is decided by the State Bar of Texas.
Whether a defendant received ineffective assistance of counsel is decided by the appellate courts.
---
### Author:  [@LinusK](https://boards.straightdope.com/u/LinusK)
#### Post date: [June 24, 2014, 11:06pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/18 "2014-06-24T23:06:45Z")
> [@Whack-a-Mole](#):
>
> It seems a difficult hurdle to claim ineffective assistance of council:
>
> My question here is why would a judge tolerate anyone but _especially_ the attorneys representing their clients sleeping in the court room?
Sorry I just realized I didn’t answer your question, as far as the trial judge is concerned. Houston executes more people each year than most countries. They’re quite proud of that fact. Also, they don’t like defense attorneys who raise a lot of objections, or files a lot of motions or shit like that. They like short trials that end with the death penalty. That’s why the sleeping lawyer got so many appointments in the first place.
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### Author:  [@Quartz](https://boards.straightdope.com/u/Quartz)
#### Post date: [June 24, 2014, 11:22pm UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/19 "2014-06-24T23:22:26Z")
> [@Whack-a-Mole](#):
>
> My question here is why would a judge tolerate anyone but _especially_ the attorneys representing their clients sleeping in the court room?
They’re not sleeping; they’re thinking with their eyes closed. 😉
---
### Author:  [@LinusK](https://boards.straightdope.com/u/LinusK)
#### Post date: [June 25, 2014, 1:54am UTC](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472/20 "2014-06-25T01:54:24Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> I sort of took that as read based on the fact that very few meritorious ineffective assistance claims result in sanctions or civil suits. However, after looking into it a bit further it appears most jurisdictions require the claimant-defendant to [prove his innocence](http://moritzlaw.osu.edu/osjcl/Articles/Volume5_1/Bennardo-PDF.pdf) to recover on such suits. So maybe it’s a hole in the law after all.
You’re talking about suing a criminal defense attorney for damages. In a civil court. That’s different from ineffective assistance of counsel and disbarment. It is the reason why most defense attorneys don’t bother to carry liability insurance, however.
[Next page](https://boards.straightdope.com/t/ineffective-assistance-of-counsel-in-us-law-its-scope/691472.md?page=2)