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A Sleeping Lawyer and a Ticket to Death Row

COLUMN ONE

George McFarland is awaiting execution in Texas. But his lawyers didn't mount much of a defense, and the state that leads the way in executions did little to ensure that he was competently represented.

July 15, 2000|HENRY WEINSTEIN | TIMES LEGAL AFFAIRS WRITER

HOUSTON — When George McFarland was accused of robbing and killing a neighborhood grocery owner, he took the advice of an acquaintance and hired longtime criminal lawyer John E. Benn. That may prove to be a fatal mistake.

Benn was 72 years old and had not handled a capital murder trial for at least 19 years. Nor did he jump headlong into the new case--he spent four hours preparing for the 1992 trial. Benn did not examine the crime scene, interviewed no witnesses, prepared no motions, did not request that any subpoenas be issued, relied solely on what was in the prosecutor's file, and visited his client only twice.

During the 17-day trial, Benn's performance took a turn for the worse: He fell asleep.

"Benn slept during great portions of the witness testimony," juror Mary Louisa Jensen said in an affidavit five years later. "It was so blatant and disgusting that it was the subject of conversation within the jury panel a couple of times."

Months after the trial ended with a conviction and death sentence, Benn was asked at a court hearing about his snoozing. "I'm 72 years old," he said. "I customarily take a short nap in the afternoon."

McFarland, now 39, is one of more than 450 people on death row in Texas and one of at least two with a lawyer who dozed off during their trials.

McFarland's writ of habeas corpus, which challenges the constitutionality of his conviction and sentence, is considered among the most significant pending in Texas because of the profound questions it raises about the quality of legal representation courts deem acceptable for a defendant facing capital punishment.

Since Texas reinstated the death penalty in 1977, the state has executed 224 people--137 while George W. Bush has been governor--three times as many as the next highest state, Virginia.

Although lawmakers in some states are questioning the wisdom of the death penalty and public support is declining in opinion polls, Bush maintains that everyone executed in Texas on his watch was guilty and "had full access to the courts."

In the McFarland case--and another--prosecutors acknowledge that sleeping occurred but say that should not bar the execution. Harris County prosecutors insist McFarland had a fair trial.

Critics of capital punishment vehemently disagree.

"For poor people facing the death penalty, this is what it means to be represented by 'the Dream Team,' " said attorney Stephen B. Bright of Atlanta, who specializes in capital appeals as director of the Southern Center for Human Rights.

A Fateful Choice

In Texas, where there is no public defender system for capital cases, numerous defendants have been poorly represented by unskilled lawyers, many of whom were appointed by trial judges, said Elisabeth Semel, who heads the American Bar Assn.'s death penalty representation project. Houston judges, in particular, have had a reputation for appointing lawyers who moved cases along rapidly and often had greater loyalty to the jurists than to their clients. Two lawyers, favored by certain judges but widely criticized by leading legal experts, wound up with 10 and 12 clients respectively on death row.

For that reason, McFarland decided to hire a lawyer on his own. Clearly, he made a poor choice, according to the trial judge in the case, Doug Shaver, who prosecuted 18 murder cases as an attorney and has presided over dozens while on the bench.

"I knew John Benn. I knew he wasn't competent," Shaver said in a courthouse interview in late June. The judge said Benn had the appearance of "a heavy drinker. . . . His clothes looked like he slept in them. He was very red-faced; he had protruding veins in his nose and watery red eyes. . . . I can't imagine anyone hiring him for a serious case."

So Shaver appointed a second lawyer, Sandy Melamed, to assist Benn.

Melamed had never worked on a capital case before and remained deferential, even though he saw Benn's limitations.

"Because I perceived myself as second chair to Benn, I felt I couldn't take responsibility for preparing the trial strategy," Melamed said years after the trial.

Like Benn, Melamed never visited the crime scene and he interviewed no witnesses. Moreover, the two never worked as a team. They did not hold strategy sessions and, except in one instance, didn't decide in advance who would cross-examine each prosecution witness. Melamed said that since Benn slept while a number of those witnesses were on the stand, he wound up doing much of the cross-examination himself. According to their own testimony, the two attorneys spent a total of 10 hours preparing for a case in which a man's life was at stake.

The only division of labor the defense lawyers agreed on before the trial was that Benn would cross-examine the key eyewitness and that he would be in charge of the crucial punishment phase in the event that McFarland was found guilty.

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