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Inmate Whose Lawyer Slept Is Granted Retrial

Law: The Supreme Court refuses to hear Texas' appeal that the attorney's inattention did no harm. The man was convicted of murder.


The U.S. Supreme Court on Monday let stand an appellate ruling that a Texas death row inmate is entitled to a new trial because his lawyer slept through substantial portions of his murder trial.

Giving no reason for its refusal to intervene, the high court rejected an appeal from the Texas attorney general's office, which contended that inmate Calvin J. Burdine had received a fair trial in spite of his lawyer's lapses.

The Supreme Court action serves to uphold an August 2001 decision by a federal appeals court in New Orleans that there had been "a fundamental unfairness in Burdine's capital murder trial created by the consistent unconsciousness of his counsel."

The case of Burdine, who has been on death row for nearly 18 years, has been closely watched as a test of just how shoddy a lawyer's work could be before the Supreme Court found it unacceptable.

"An alert, conscious Supreme Court put to rest a case which helped wake up the nation to the chronic problem of abysmal legal representation in capital cases," said Robert L. McGlasson, an Atlanta attorney who has represented Burdine on appeal for more than a decade. "This is a problem that ... sitting Supreme Court justices have commented on publicly and have done so implicitly today."

The Texas attorney general's office had no comment Monday and the district attorney's office in Houston said it plans to retry Burdine and again seek the death penalty.

Burdine's case became a subject of discussion in the 2000 presidential campaign when then-Texas Gov. George W. Bush was asked about the problem of "sleeping lawyers" in Texas death penalty cases during a debate with his Democratic opponent, Vice President Al Gore.

The case gained further visibility later that year when a panel of federal appeals court judges initially ruled that Burdine was not entitled to a new trial because he had failed to demonstrate that attorney Joe Frank Cannon's inability to stay awake had harmed his case. That ruling, which drew widespread criticism, was later reversed by the full U.S. 5th Circuit Court of Appeals, 9-5.

By declining to review the case, Cockrell vs. Burdine, 01-495, the Supreme Court offered no guidance on the parameters of constitutionally acceptable legal representation.

Last week, in an 8-1 ruling, the high court reinstated the death sentence of a double murderer from Tennessee, holding that his lawyer had done an acceptable job in a difficult case. A year earlier, a federal appeals court in Cincinnati had overturned Gary Cone's death sentence, saying his attorney had provided inadequate representation in part because he failed to give a closing argument in the trial's penalty phase.

Some capital defense lawyers had expressed concern that the Cone decision might mean that the Supreme Court would either grant Texas' appeal or send the Burdine case back to the 5th Circuit for further review.

Consequently, the Supreme Court move was greeted with a sigh of relief by death penalty foes. "The court's refusal to hear this case is both an acknowledgment and a reminder that the death penalty system is rife with problems," said Diann Rust-Tierney, director of the ACLU's capital punishment project.

Other opponents of capital punishment said it was extraordinary that the issue could even merit serious debate. "The idea that a sleeping attorney could be 'competent counsel' in a capital case should have been a punch line, not a headline," said Sue Gunawardena-Vaughn, who heads Amnesty International's anti-death penalty unit.

Findings made during a 1995 evidentiary hearing "demonstrate that Burdine's counsel was repeatedly asleep, and hence unconscious, as witnesses adverse to Burdine were examined and other evidence against Burdine was introduced," wrote 5th Circuit Judge Fortunato P. Benavides in his majority opinion last year.

"Unconscious counsel amounts to no counsel at all," emphasized Benavides, a Clinton appointee.

Dissenting judges said Burdine was not entitled to a new trial because trial lawyer Cannon, who has since died, had cross-examined several witnesses and was not totally absent from the proceedings.

Judge Rhesa H. Barksdale, a Reagan appointee, said that while the trial record reflected periods of inactivity, it did not prove that Cannon was necessarily sleeping. It is possible, he wrote in a minority opinion, that Cannon merely appeared to be asleep as part of a "trial strategy."

That contention was "preposterous," said University of Houston law professor David Dow. "There is not any lawyer who any sane person would hire who would go to sleep in the middle of a trial as a tactical move. There are plenty of other ways to express a lack of concern about the weightiness of the prosecution's case against your client."

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