The judges acknowledged that the trial transcript shows Cannon said nothing as the prosecutors cross-examined his client--a tough grilling that ran to 72 pages of transcript. The cross-examination included a question about whether Burdine preferred to be the "man or the woman" during a homosexual act, a question that Burdine's new lawyer said during the appeals court's hearing "was irrelevant, clearly prejudicial and clearly the [potential] subject of an objection."
But Barksdale and Jones said it was possible that Cannon had decided not to raise any objections as part of a defense strategy.
Benavides sharply disagreed. Cannon's limited participation in the trial "demonstrate a denial [of counsel] of such significance that the adversary process was rendered unreliable."
At a hearing in 1995, Cannon denied that he had been sleeping at all. Rather, Cannon said, he was concentrating, with his eyes closed.
In earlier testimony, however, the clerk of the court that handled Burdine's trial, Rose Marie Berry, said that in one instance Cannon's head was tilted downward and he was asleep "for about 10 minutes . . . at least 10 minutes." There were "lots of incidents" when Cannon dozed off for shorter periods, she said. Three jurors in Burdine's case also testified that they had seen Cannon sleeping during the trial.
Cannon, who is now dead, slept during the trial of another defendant, who has already been executed, according to appellate court records. In total, Cannon had 10 clients wind up on death row in Texas--the second highest number of any defense lawyer in the state.
Another inmate currently on death row in Texas, George McFarland, has an appeal pending in Texas state courts, contending that he was denied due process of law because his lead lawyer slept through significant portions of his case.
Since the Supreme Court permitted states to reinstate capital punishment in 1976, Texas has executed 232 people, including 145 while Bush has been governor, far and away the most of any state in the nation.