Eddie G. Javor v. United States
724 F.2d 831, 1984 U.S. App. LEXIS 26080 (1984)
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Rule of Law:
A criminal defendant's Sixth Amendment right to the effective assistance of counsel is violated, and prejudice is inherently presumed, when their defense attorney sleeps through a substantial portion of the trial.
Facts:
- Eddie G. Javor was charged with possession and sale of heroin.
- Javor retained attorney Samuel S. Brody to represent him at his two-week jury trial.
- During the trial, Brody was observed sleeping or dozing for substantial periods.
- Brody's sleeping occurred at times when evidence relevant to the case against Javor was being presented.
- On occasion, Brody asked another defendant's lawyer about testimony he had missed while asleep.
- The trial judge was aware that Brody was often 'dozing,' and other attorneys sometimes nudged or kicked Brody to wake him.
Procedural Posture:
- Eddie G. Javor was convicted by a jury in a federal district court for possession and sale of heroin in 1965.
- On direct appeal, the U.S. Court of Appeals for the Ninth Circuit remanded the case; the district court later reinstated the conviction, which the Ninth Circuit then affirmed.
- Javor filed multiple motions for post-conviction relief under 28 U.S.C. § 2255, all of which were denied by the district court and affirmed on appeal.
- Javor then filed an original petition for a writ of habeas corpus with the Ninth Circuit, alleging a Sixth Amendment violation, which was referred to the district court for consideration.
- A magistrate judge held a two-part evidentiary hearing, first finding that Javor's counsel was incompetent for sleeping, but then finding that Javor had failed to show that this incompetence caused him prejudice.
- The district court adopted the magistrate's report and recommendation, denying Javor's habeas corpus petition.
- Javor, the petitioner, appealed the district court's denial to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does a defense attorney sleeping through a substantial portion of a criminal trial constitute a per se violation of the defendant's Sixth Amendment right to effective assistance of counsel, thereby not requiring a separate showing of prejudice?
Opinions:
Majority - Ferguson, J.
Yes, 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. Unconscious or sleeping counsel is equivalent to no counsel at all, which is a direct violation of the Sixth Amendment right to assistance of counsel. Unlike cases involving specific attorney errors that can be reviewed on the record, the prejudice from an absent (sleeping) attorney lies in what they failed to do—observe witnesses, listen to testimony, consider objections, and consult with the client. Requiring a defendant to prove prejudice in such a circumstance would involve 'unguided speculation' about what the attorney might have done if awake, which is an impossible burden and not susceptible to intelligent application. Therefore, the violation is complete, and prejudice is presumed as a matter of law.
Dissenting - Anderson, J.
No, it is inappropriate to adopt a per se rule; a defendant should be required to demonstrate that the attorney's conduct resulted in actual prejudice. The general standard for ineffective assistance of counsel requires a defendant to show both that counsel's performance was deficient and that this deficiency prejudiced the defense. A magistrate reviewed the trial record and found that while the attorney dozed, he was effective when awake, made appropriate motions, and conducted vigorous cross-examinations, ultimately concluding that Javor suffered no actual prejudice. These factual findings are not clearly erroneous and should be upheld. Javor selected his own counsel and never complained during the trial, distinguishing this case from those where counsel is denied by the court.
Analysis:
This decision establishes a significant, albeit narrow, exception to the Strickland standard for ineffective assistance of counsel, which typically requires a defendant to prove both deficient performance and resulting prejudice. By creating a per se rule of prejudice for sleeping counsel, the court categorizes this specific failure not as deficient performance, but as a constructive denial of counsel altogether during the periods of sleep. This ruling relieves future defendants in similar situations from the nearly impossible task of demonstrating what their unconscious attorney should have done. It solidifies the principle that the 'assistance' of counsel requires not just physical presence but conscious advocacy.
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