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.
