The Lullaby of Nick Mackey

The ex-would-be sheriff endures more humiliation. Tell him the minute he wakes up
Mackey and Associates

Lord. This guy again.

It’s not all bad, though. Nick Mackey’s reappearance, even while unconscious, in public life accompanied one of the more remarkable opening paragraphs I’ve ever seen in an appellate court ruling:

This appeal presents an issue of first impression in this Circuit: whether a defendant’s right to effective assistance of counsel is violated when his counsel sleeps during trial. We hold that a defendant is deprived of his Sixth Amendment right to counsel when counsel sleeps during a substantial portion of the defendant’s trial.

You can practically see the judge’s in camera facepalm.

It had been a long time since I’d thought about Nick Mackey and the wringer he put the county through back in 2007 and 2008, when he exploited Democratic Party rules to put himself in position to have the Mecklenburg County Board of Commissioners appoint him sheriff. The state party nullified the results of the initial party election when it determined that a number of precincts had been organized improperly—in the process, and during an interminable hearing at the Government Center, displaying its own feebleness and disorganization. (It was a day I remember well. I was there, helping cover it for the Observer through a sinus infection. There were times that day when I yearned for an air strike to end everyone’s misery.)

Clearly, the mess is still foremost on Mackey’s mind; “I have always maintained and still do maintain that the allegations against me regarding this case are untrue and are the result of the most contentious political battle for Sheriff in Charlotte, North Carolina’s history,” he wrote in a prepared statement yesterday. The court found that the allegations regarding this case and the 2006 trial were the result of Mackey’s inability to keep from falling out at the defense table:

Here, as discussed extensively above, every witness stated that they observed Mackey asleep on at least one occasion, with multiple witnesses testifying that Mackey was asleep on multiple occasions. Vernon, who had a direct view of Mackey, testified that Mackey appeared to be asleep “[f]requently . . . almost every day . . . morning and evening” for “30 minutes at least” at a time during the two-week trial. The jurors discussed and commented on Mackey being asleep, including during jury deliberations (and may have held this fact against [defendant Nicholas] Ragin in reaching their verdict). None of this evidence is in dispute. There were no witnesses that testified that Mackey was not asleep—not even Mackey. These facts are extraordinary and egregious.*

Well, either that or pure legal genius. The appeals court did overturn the convictions, after all. Ol’ Nick might not be the sharpest knife in the bar, but he’s overflowing with nerve. “I am extremely happy to learn that his appeal was successful!!,” he wrote in his statement. If he can just stay awake and learn some more law, that fellow might have a future.

*I have to share this footnote from the court ruling, in which the Fourth Circuit clarifies that lawyers don’t have to pass the Mackey Unconsciousness Test to render ineffective counsel: “While we conclude that the manner in which Mackey slept in the instant case was substantial, we decline to define this term for all cases. Whether a lawyer slept for a substantial portion of the trial should be determined on a case-by-case basis, considering, but not limited to, the length of time counsel slept, the proportion of the trial missed, and the significance of the portion counsel slept through. At the same time, however, while we decline to dictate precise parameters for what must necessarily be a case-by-case assessment, we caution district courts that the scope of our holding today should not be limited to only the most egregious instances of attorney slumber.”

Categories: The Buzz