A businessman will get a new trial on mortgage fraud charges because his defense attorney was seen sleeping by the judge, witnesses and the federal court jurors who convicted him last year.
U.S. District Judge Donetta Ambrose ruled James Nassida was denied a fair trial because Stan Levenson dozed during the October trial. Levenson has acknowledged that he fell asleep because he was taking cold medicines that made him drowsy.
Because Levenson was seen sleeping several times during the October trial he "therefore was not functioning as counsel during a substantial portion of Mr. Nassida's trial, thus violating Defendant Nassida's Sixth Amendment rights" to a fair trial and legal representation, the judge wrote on Monday.
Nassida's new attorney, James Brink, called the ruling "fair and well-reasoned" in an email on Tuesday. The new trial will begin Sept. 5.
Nassida founded Century III Home Equity, a lending firm in Pittsburgh's South Hills suburbs, in 1994.
Federal prosecutors contend he inflated his clients' incomes and assets and used fake property appraisals to help those borrowers get millions of dollars' worth of fraudulent mortgage loans. Nassida's firm received fees for the loans — as many as 700 a year — which Nassida used to pay for a lavish lifestyle including a house worth $1.3 million, a ski resort vacation home and luxury cars.
His sister, Janna Nassida, was tried on charges she aided in the scheme. She killed herself shortly after she and her brother were convicted last fall.
Levenson's sleeping was first brought to the judge's attention by Assistant U.S. Attorney Cindy Chung.
Levenson has told reporters and testified at a post-trial hearing in April that he slept during the trial, and he asked for a mistrial, which Ambrose refused to grant, preferring to see what verdict the jury returned. After the jury convicted Nassida, the judge questioned the jurors under oath, and all acknowledged seeing Levenson sleeping or, at least, discussing it with other jurors who had.
"After careful consideration, I find that these facts are sufficiently 'extraordinary and egregious' to justify a presumption of prejudice," the judge wrote.
Quoting a similar case, she noted that Nassida's trial couldn't reasonably be considered a confrontation between adversaries.
"Such an unfair battle — one in which one side is represented and the other is not — is a clear and direct violation of the Sixth Amendment," she wrote.