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New Trial Is Sought for Inmate Whose Lawyer Slept in Court
January 23, 2001
By RICK BRAGG
NEW ORLEANS, Jan. 22 A death row inmate in Texas whose lawyer slept
through parts of his 1984 murder trial should be a granted a new
trial and be represented by a defense counsel who is not
unconscious for as long as 10 minutes at a time, his new lawyer
told a federal appeals court here today.
The defendant, Calvin Burdine, was convicted of stabbing a
50-year-old man with a butcher knife in the Houston area in 1983.
His lawyer at the time slept on several occasions during Mr.
Burdine's 13-hour murder trial, said Robert McGlasson, his new
lawyer, in a hearing before the full United States Court of Appeals
for the Fifth Circuit.
Mr. Burdine's former lawyer, Joe Cannon, who is now dead, did not
just nod off for a few seconds; he slept apparently soundly as
the prosecution questioned witnesses and presented its case, Mr.
McGlasson said.
"He was unconscious," Mr. McGlasson said.
A sleeping lawyer, Mr. McGlasson argued, cannot protect his client
cannot object, cannot rebut and cannot even summarize the case in a
closing argument.
A drunken lawyer, a drug-addicted lawyer or a mentally ill lawyer
can, at least, "see something wrong and shout, `I object,' " Mr.
McGlasson said.
"But an unconscious lawyer is completely incapable of
cross-examination in trial," he said.
Defense lawyers for Mr. Burdine have described Mr. Cannon as being
as responsive in court as a potted plant.
The court did not say when it would rule on the appeal.
In an
evidentiary hearing in federal court in 1995, three jurors and a
court clerk testified that Mr. Cannon fell asleep during the trial
and once even laid his head on the defense table and slept.
"Sometimes it was for at least 10 minutes," Mr. McGlasson said.
A federal judge in Texas later ruled that Mr. Burdine did not
receive adequate defense counsel or a fair trial, and ordered the
state to retry him or release him from death row, where he has
lived for 16 years.
Mr. Burdine, now 47, says the police intimidated him into
confessing to the murder of W. T. Wise in a mobile home outside
Houston in 1983.
Julie Parsley, a Texas state prosecutor, agreed that Mr. Cannon
slept during the trial, but she argued that his napping did not
justify a new trial.
Ms. Parsley told the appeals court that Mr. Cannon's sleepiness
might have caused him to make errors in defending his client but
that there was no proof that those errors affected the verdict.
A three-judge panel of the court had earlier agreed with Ms.
Parsley, ruling 2 to 1 that Mr. McGlasson could not prove that Mr.
Cannon was asleep during critical moments in the trial.
But the court agreed to reconsider the case in a hearing by all 15
members.
Mr. McGlasson said after the hearing that it should not matter
when the lawyer slept during the trial, because any amount of
unconsciousness during the trial crippled his client's defense.
How, he argued, can a lawyer give the crucial closing argument if
he did not hear all the testimony, or see all the evidence?
Mr. McGlasson appealed the case to the federal courts after state
courts in Texas found that a sleeping lawyer was not a sufficient
ground for a new trial.
Using the same standard as the one it uses for drunken lawyers,
drug-addled lawyers and mentally ill lawyers, the state courts
ruled that Mr. Burdine still had an adequate defense.
Responding to those rulings, Mr. McGlasson said, "The state does
not believe that you have a right to a lawyer who stays awake."
Opponents of the death penalty are closely following the case.
Stephen Bright, a lawyer in Atlanta who specializes in death
penalty cases, called the Texas courts' handling of the case "a
disgrace."
The New York Times on the Web
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