A Brooklyn judge has thrown out a felony weapons conviction after the defendant's attorney repeatedly fell asleep at trial, allegedly read magazines while witnesses testified and provoked laughter among the jurors with his "bizarre" opening statement.
Acting Justice Vincent M. Del Giudice ruled that the attorney, Manhattan solo practitioner Michael Harrison, did not provide his client "meaningful representation" as defined by New York case law.
"It is very unusual for this court to criticize a member of the bar and I am hesitant to do so in this opinion. This is a learned profession and I appreciate and enjoy watching members of the bar perform their craft," Del Giudice wrote in People v. Irizarry, 6676-2006.
"However, during this trial, I found myself very uncomfortable whenever defendant [Edward] Trujillo's counsel addressed either a witness or the jury. It was impossible to predict what he was going to say. Based upon all of the foregoing, I conclude that this defendant did not receive the minimum level of representation that is required by law."
Although the court, as noted in a footnote, "deliberately omitted" Harrison's name from the decision, it was available through public records.
Reached by phone Wednesday, Harrison called his opening statement "very logical and precise." As for the laughing jurors, he said, "Well, laughter's very good when you're looking at many years in prison." Regarding the allegation that he slept throughout the trial, he added, "That sounds very relaxing."
Harrison added that "just about everything" alleged in the decision was untrue, and that he intended to "take [the matter] up with the judiciary grievance committee."
The defendant, Trujillo, and two acquaintances were arrested in August 2006 and charged with the constructive possession of a loaded .9-millimeter pistol that was recovered from Trujillo's SUV. The three men were tried together in a jury trial before Del Giudice beginning in March.
Harrison was chosen from the 18B panel to represent Trujillo.
Trujillo and one co-defendant were found guilty of third-degree criminal possession of a weapon. Del Giudice ordered a new trial for the remaining co-defendant, Julio Irizarry, after evidence suggesting that he had a ".9 millimeter shell casing" in his pocket when arrested was accidentally forwarded to the jury.
Trujillo, now represented by Charles Glaws of Gruvman, Giordano & Glaws, filed various motions seeking relief, including a motion to set aside the verdict because of Harrison's ineffective assistance.
Trujillo claimed that Harrison fell asleep on at least three occasions during the trial and that he read "heath and fitness" magazines during the witness' testimony. He also alleged that Harrison failed to explain the proceedings and would change the subject whenever asked. He claimed that Mr. Harrison gave a "bizarre" opening statement that caused the jurors to laugh.
Del Giudice confirmed that he witnessed much of what Trujillo alleged.
"At one point during the trial, this court stopped the proceedings and required all parties to engage in a side bar, because I observed [Harrison] apparently sleeping at the counsel table. The court asked counsel, at side bar, if he was feeling well and if he needed a break to eat or drink," the judge wrote.
He added, "[Harrison] did, indeed, give a bizarre opening statement. The beginning ... was so off topic and irrelevant that this court was compelled to stop counsel and direct that he address what he intended to prove during the course of the trial. The jury was, in fact, laughing during counsel's opening statement and such laughter at a member of the bar created an unprofessional atmosphere."
The judge also stated that although he did not witness Harrison reading magazines while witnesses were being examined, he did see him drop one.
"What makes this case different, however, is not any particular decision made by trial counsel, nor with his apparent decision to ask minimum questions of the witnesses," the court concluded. "What was most troubling to the court was that it appeared that defendant Trujillo was not getting 'meaningful representation,' as required by" People v. Baldi, 54 NY2d 137.
"The facts and circumstances of this case compels this court to find that the quality of the legal representation provided to defendant Trujillo was so insufficient that the integrity of the judicial process was placed in jeopardy."
The judge set aside the verdict and ordered a second trial for Trujillo, at which he will be retried along with Mr. Irizarry.
Glaws did not return a call for comment.
Harrison, who was admitted to the New York bar in 1988, is a veteran defense attorney. By his own count, he has taken more than 600 trials to verdict.
