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Snoozing Lawyer Not Enough To Overturn Conviction

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By ELAINE SILVESTRINI | The Tampa Tribune

Published: December 31, 2008

TAMPA - A lawyer sleeping in court may be "inexcusable," according to a federal appeals court, but it's no excuse for the client.

A Plant City man convicted of robbing banks in Polk County has lost his federal appeal, even though his lawyer nodded off during his trial.

Chaddrick Levell Thomas, 31, is serving 44 years in federal prison for his 2003 convictions in the May 2001 armed robberies of a Bank of America in Lakeland and a Sun Trust Bank in Mulberry the following month.

He appealed his convictions, partly on the grounds that his court-appointed attorney, Thomas Ostrander, fell asleep during what he maintained were important times in his trial.

U.S. District Court Judge William J. Castagna, the trial judge, asserted that Ostrander had been attentive during the entire trial. Another judge, Susan Bucklew, concluded that Ostrander fell asleep once, during the testimony of a bank teller, Sharon Delamain, but was otherwise effective in his representation.

Thomas claimed Ostrander fell asleep two other times, both during the testimony of one of his coconspirators who testified against him.

"Although sleeping, even for a short period of time, is inexcusable, Thomas has failed to establish prejudice," a three-judge appeals court panel wrote. "Delamain did not identify any of the defendants, she was not cross-examined by any of the defendants, and she did not testify to contested matters.

"None of the parties disputed the occurrence of the robbery; rather, the crux of the trial was the
identities of those involved. Four coconspirators testified against Thomas, specifically identifying him and linking him to the bank robberies. Counsel made objections and cross-examined all four witnesses.

Due to the overwhelming evidence against Thomas from the co-conspirator testimony, and counsel's engagement in the trial during those periods, Thomas has failed to establish a reasonable probability the outcome of the trial would have changed had counsel been awake and alert during Delamain's testimony."

During Delamain's testimony, Ostrander was asked by the judge if he objected to the admission of an item of evidence, according to court records. Ostrander responded, "I have no questions for this witness."

In addition, a federal marshal, Deputy Lisa Alfonso testified after the trial that she had seen Ostrander sleeping periodically during the trial. "He had his head down, his eyes were closed and there was what I would label as a snoring-type sound coming from his nostrils," Alfonso said, according to court documents.

She said she once gestured to the defendant to let him know it was alright if he nudged his lawyer awake.

Court security Officer Fred Bohlig testified he was approached by a juror who was concerned about the defense attorney sleeping.

Ostrander testified that he was tired and at times struggled to stay awake during the trial because of a recent switch in medications. Ostrander testified that if he did fall asleep, it was just for a second.

Reached for comment, Ostrander said he agrees with the court that there is no excuse for a lawyer sleeping in court while representing a client. He said he remembers the incident when the judge asked him about the evidence, and "like an idiot, I jumped up and said, 'No further questions.' I was quite humiliated by the whole thing. But I'm glad the 11th Circuit made that ruling."

Ostrander said he had just learned he had diabetes and was struggling to balance his medications. In addition, he said, he was working late on the case.

Ostrander, who noted there were other defendants in the case, said he was very active during the trial in defending Thomas. "I think I asked a lot more questions and took the lead on more of these things than anybody else did." Still, he said, he thinks Thomas was right to pursue the appeal, and that he encourages defendants to question him if they feel the need.

"I tell all my clients, 'If you want to file something, if you feel it's necessary, go ahead. But don't lie,' " he said.

Reporter Elaine Silvestrini can be reached at (813) 259-7837.

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