I have seen judges and jurors snore, I have heard of defense counsel dozing, but there should be a law prohibiting the defendant from sleeping during trial. In my opinion a sleeping defendant is not competent to stand trial. The trial loses any meaning for him. It is not possible for him to confront the witnesses. It is not possible for him to exercise control over his counsel. The jury may infer bad things against you. And how are you supposed to make a record concerning your activity-- no one else knows for sure you were sleeping. There are a lot of tired, worn defenses out there, but Carter should get a new trial. Defendants are tried in their absence only as a result of conscious decisions (generally misconduct). Carter's lack of consciousness should not be equated with those types of situations. I would not characterize the problem in terms of assistance of counsel, but only prosecutors should be allowed to sleep during trials.

Did you notice in the footnotes that it seemed that the Defendant was purposely pretending to sleep and loudly snoring to interfere with the trial? Martin, your vote for relief is a bit premature.

John, you seem to make a very good point, but I think I am going to have to sleep on it. Do you think the Fifth Circuit will have to meet en banc again in order to be able to decide this case?