From the Chron: Sleeping lawyer can be effective, court rules By C. BRYSON HULL Associated Press Writer HOUSTON -- A sleeping lawyer can be effective counsel as long as he or she does not doze during important parts of the trial, the 5th U.S. Circuit Court of Appeals ruled today in a Texas death row case. The New Orleans-based appellate court overturned a lower-court decision ordering a new trial or freedom for Calvin Jerold Burdine, a death row inmate whose lawyer slept during his 1984 Houston capital murder trial. Two members of the three-judge panel hearing the appeal ruled Burdine, 47, was unable to show his now-dead attorney, Joe Cannon, slept during critical parts of the trial. Neither the trial transcript nor a 1995 evidentiary hearing -- during which three jurors and a court reporter testified Cannon often napped for as long as 10 minutes -- shows exactly when he slept, the majority wrote in a 40-page opinion. "Accordingly, it is impossible to determine whether, for example, counsel slept during the presentation of crucial, inculpatory evidence, or during the introduction of unobjectionable, uncontested evidence," the court wrote. The court also scolded Burdine for not raising his claim until 11 years after his conviction, for allowing Cannon to represent him on his first appeal and for never giving an affidavit or sworn testimony that Cannon slept during trial. "Cannon is not the only person in this case who slept; Burdine slumbered as well -- on his rights," Judge Rhesa Barksdale wrote. Judge Fortunato Benavides sharply dissented. "It shocks the conscience that a defendant could be sentenced to death under the circumstances surrounding counsel's representation of Burdine," Benavides wrote in a 15-page dissent. The decision vacates U.S. District Judge David Hittner's 1999 ruling ordering a new trial or freedom for Burdine, and remands it to Hittner's court in Houston for further consideration. Hittner gave Texas officials 120 days to re-try Burdine or set him free. Prosecutors missed that deadline and Hittner ordered Burdine released March 1. The state appealed to the 5th Circuit, which ordered Burdine to remain on death row while they considered the case. Burdine was condemned in 1984 for stabbing his gay lover to death with a hunting knife. Evidence at his trial showed Burdine killed W.T. Wise, 50, on April 18, 1983, while burglarizing a trailer they shared near Houston. Wise, a security guard, infuriated Burdine by asking that he prostitute himself to earn extra household cash, Burdine said. Burdine has denied killing Wise, but has acknowledged he was at the scene with a 17-year-old accomplice, Douglas McCreight. McCreight served eight years in prison for a lesser crime before he was paroled. "Today's decision confirms that a jury's verdict will not be overturned unless and until the defendant proves that actual harm occurred as a result of his attorney's conduct at trial," said Heather Browne, a spokeswoman for the Texas Attorney General's Office. To establish Cannon had been effective, the majority opinion reviewed much of the trial transcript page-by-page, delineating Cannon's actions and responses throughout Burdine's six-day trial. Benavides retorted that even though Cannon responded to questions posed to him, his answers often were delayed because he had been asleep. Robert McGlasson, Burdine's attorney, was shocked the court ruled Cannon's representation was effective. "An airline pilot gets caught dozing momentarily and that pilot never flies again. Only in the legal profession, and apparently only in a capital case, is it OK to sleep," McGlasson said. He also criticized the court's ruling Burdine should have asserted his right to effective representation and realized he was being denied it when Cannon slept. "It turns the idea of your right to counsel on its head to put the burden of protecting those rights upon a criminal defendant," McGlasson said. McGlasson, who said his client was "resolute" when he telephoned him with the news today, said he would file an immediate appeal, either to the full 5th Circuit or the U.S. Supreme Court. today's decision makes no reference to McGlasson's arguments that Cannon erred by failing to object to several questionable references about Burdine's homosexuality. Those matters and others are technically still before Hittner, who had not ruled on them when he ordered the retrial. ------------------ Save Our Rockets and Comets SaveOurRockets.com
And people say the justice system affords adequate protection for people who have inadequate counsel at their original trial. Once a person is convicted of a crime, it becomes far harder to change that conviction. The playing field is no longer stilted toward the defendant in the appellate courts. So we see continued instances where inadequate representation in the trial courts, but the appeals courts are unwilling to reverse the verdict and give the defendants a new trial. It's pretty scary, if you ask me. Even exculpatory evidence is sometimes not allowed to be entered at the appeals court level. I remember going to the court house and watching the district judge rule on a case. In this case, the defendant who had been convicted of something (I don't know what) was requesting that the court allow his appeal to be heard even though the deadline for filing an appeal had passed. In this case, the lawyer for the defendant had given all his paperwork to some ex-con that was working as a legal assistant. The "legal assistant" disappeared with all his files, so the lawyer said he couldn't file an appeal because he didn't have any of the paperwork. The fact that the appeal wasn't filed on time was really no fault of the defendant. But the district judge still ruled that it was just too late to file an appeal. So, this particular defendant was SOL. We've seen other cases where death row inmates were denied access to DNA tests that could clear them (or possibly make us all more sure that we're executing the right person). When someone like GWB says that all defendants have plenty of access to the courts, it makes me cringe because it appears that not everyone really gets what I would consider fair access to the courts. (Or that the access tot he courts is useless because the judges make silly decisions). ------------------ Houston Sports Board
The same people who think that this is OK are the same people who b****ed about O.J. being able to hire good attorneys. This is a more important issue than the right to own an uzi, IMO. ------------------ When you make an assumption, you make an ass out of yourself and umption. visit www.swirve.com
The big problem here is the burden of proof. To prove inadequate assistance of counsel in those situations, you've got to prove that, but for the attorney's mistakes, you would have won the trial. Very tough to do - nearly impossible in fact. ------------------
I think this story says less about the lawyer and more about the judge that was presiding over the case. What you have there is either a lack of control over the courtroom or simple apathy about giving the defendent a fair trial. Very sad ------------------
RM95, why not use the Uzis to shoot all the sleeping lawyers on the spot, that should act as a deterent. ------------------ www.NOPostCount.com
Good point Smeg. An armed guard making sure that the lawyer is doing is job-I love it! ------------------ When you make an assumption, you make an ass out of yourself and umption. visit www.swirve.com
