McFarland's problems with attorneys did not end when the trial concluded. During the initial appeal, McFarland was represented by Marcelyn Curry, an inexperienced, state-appointed lawyer doing her first capital appeal and plagued by severe health problems, including anemia, hepatitis A and B, and dizzy spells, all of which caused her to be frequently bedridden. Curry missed three deadlines for filing the appeal and was threatened with contempt.
She admitted in a court affidavit that her papers were "incomplete." Indeed, the Texas Court of Criminal Appeals cited more than half a dozen inadequacies in her brief, but still upheld the verdict.
Charles Baird, then a Texas Court of Criminal Appeals judge, issued a sharp dissent, saying McFarland was entitled to a new trial. "I find the majority's suggestion that it was somehow reasonable trial strategy for [McFarland's] lead counsel to take a 'short nap' during the trial utterly ridiculous," Baird wrote.
"The possibility of jury sympathy can never be a reasonable alternative to effective representation," continued Baird, who was later voted off the bench in an election that focused on his death penalty opinions. "A sleeping counsel is unprepared to present evidence, to cross-examine witnesses, and to present any coordinated effort to evaluate evidence and present a defense. In my view, a sleeping attorney is no attorney at all."
Given the lack of communication between the two defense attorneys and the fact that Melamed did little trial preparation, his presence "did not excuse or rehabilitate Benn's incompetent representation," Baird wrote.
'I'm No Angel'
McFarland, who grew up in the Bronx, has been in trouble with the law for more than two decades.
He came to Texas to join the Job Corps as a troubled teenager in 1978 and was later convicted of armed robbery and two misdemeanor thefts. At the time of his murder indictment, he also was facing charges on another robbery--in which he allegedly brandished an Uzi--and on separate gun possession charges.
"I'm no angel," McFarland readily volunteered in an interview at the prison where death row inmates are housed in Livingston, 70 miles north of here.
Regardless, McFarland insists that he did not kill grocer Kenneth Kwan and that his trial was a mockery of what the American legal system is supposed to provide.
"There are no words to express the pain, the anger, the frustration," McFarland declared through a telephone while seated in a bulletproof-glass-enclosed interview cubicle.
McFarland said he was shocked during jury selection to see Benn slumbering and confronted him. He said the attorney replied that he was just listening with his eyes closed and he was capable of making choices based on the prospective jurors' written answers to a questionnaire.
McFarland said that he periodically tried to awaken Benn by kicking his chair. "When you have a juror looking and your lawyer is sleeping, you're boiling over but you don't want to look too agitated because of what people will think."
Melamed said the courtroom bailiff, David Hernandez, also kicked Benn's chair and tried to nudge him awake, but eventually stopped.
"I expected John Benn to get up there and not only question their lead eyewitness but challenge every single person who had something to say against me. He just let it go by," McFarland lamented.
Capital cases often drag on for years and frequently involve complicated issues. But McFarland's current lawyers say there is nothing subtle about his situation.
"This is not a case about the arcane niceties of death penalty law and procedure," the lawyers contend in their brief seeking a new trial. "There is no physical evidence connecting McFarland with the murder of Kenneth Kwan in November of 1991. . . . No murder weapon. No fingerprints. No forensic evidence of any kind. The state's case was based on a dubious and uncorroborated identification of McFarland during a police lineup that was conducted outside the presence of McFarland's counsel, in direct contravention of the 6th Amendment right to counsel."
During the prison interview, McFarland said he has chatted with Calvin J. Burdine, the second death row inmate currently seeking a new trial because his now-deceased lawyer, Joe Frank Cannon, slept through parts of his murder trial.
McFarland said that he also knew Carl Johnson, who was executed in 1995 after federal courts said he could not even litigate the issue of Cannon sleeping at his murder trial because the point had not been raised early enough in the appellate process.
"He thought that issue would save him," McFarland said ruefully.
Last year, a federal trial judge in Houston ruled that Burdine was entitled to a new trial because Cannon slept through significant portions of his 1987 trial. "A sleeping counsel is equivalent to no counsel at all," wrote Judge David Hittner, an appointee of President Reagan.
