Fifth Circuit Finds Evidence That One of Defendants Attorneys Slept During His Capital Murder Trial Insufficient to Prove Ineffective Assistance of Counsel
It’s often said that the ineffective assistance of counsel test is so tough to satisfy that even evidence that a defendant’s attorney slept during trial is insufficient to satisfy the standard. The latest example is Alvarez v. Guerrero, 2025 WL 3719047 (5th Cir. 2025).
In Alvarez, “Juan Carlos Alvarez was sentenced to death for the murders of Michael Aguirre and Jose Varela.” He later appealed, claiming that one of his two trial counsel slept during trial.
A majority of the Fifth Circuit rejected this claim, ruling, inter alia, that
Alvarez’s attempt to demonstrate constitutional incompetence on the part of co-counsel Denninger is perfunctory and without record support. Denninger conducted about half of the juror voir dires, crossed and directly examined a number of witnesses, gave one of the two closing arguments, and frequently interjected at trial with objections and clarifications.
The dissent disagreed, concluding, inter alia, that
First, it is virtually impossible to reconstruct what cross-examination by effective counsel would have elicited from witnesses at trial. As the majority opinion recounts, defense counsels’ strategy focused on cross-examining the State’s witnesses. Lead counsel was responsible for cross-examining the lion’s share of the State’s witnesses (16 of 27 during the guilt phase of the trial, and 9 of 13 during the sentencing phase), including eye witnesses. Sleeping during the direct testimony of witnesses whom counsel is responsible for cross-examining undermines confidence in the outcome of the trial.
Second, there is a reasonable probability sufficient to undermine confidence that the jury would have imposed a death sentence. The spectacle of lead counsel sleeping during a death penalty case evidenced a profound lack of respect for the process and the gravity of the proceedings. There is a reasonable probability that it reduced the proceedings in the eyes of the jury to a pro forma exercise or a mere formality before Alvarez was sentenced to die for what were unquestionably heinous crimes. It sent the message that this defendant was so guilty, we do not have to ensure that his lawyer was actually functioning as counsel at all times during trial.
Alvarez’s lead attorney fell asleep repeatedly, as two jurors have attested without contradiction. The majority opinion relies heavily on the fact that Alvarez was represented at trial by two lawyers. But that analysis is fundamentally flawed. Due to trial practice in Texas only one attorney is responsible while a witness testifies, so co-counsel could not, and did not, cross-examine witnesses for whom lead counsel was responsible and could not and did not make objections during their direct testimony. At a minimum, when Alvarez’s lead attorney fell asleep during the direct testimony of State witnesses whom lead counsel then cross-examined, Alvarez did not have functioning counsel.
Nor can it be said that sleeping under such circumstances is a permissible strategic decision. Alvarez’s Sixth Amendment right to competent, effective counsel during a critical stage of the criminal proceedings was violated.