Appeals Court to Rehear Texas' Sleeping Lawyer Case

TIMES LEGAL AFFAIRS WRITER

A federal appeals court on Wednesday set aside a ruling that a defendant in a Texas capital murder trial does not have an absolute right to an attorney who stays awake at trial.

The U.S. 5th Circuit Court of Appeals in New Orleans will consider ordering a new trial for Calvin J. Burdine, whose death sentence for a 1983 Texas murder drew much negative attention to that state's death penalty system.

Burdine was convicted and sentenced to death for stabbing his former roommate to death after breaking into the roommate's trailer for a robbery. During Burdine's 1984 trial, his court-appointed lawyer, Joe Frank Cannon, frequently fell asleep, jurors and the court clerk testified.

In a rare move, the appeals court scheduled a rehearing on the case by all 14 judges Jan. 22. The court, considered one of the most conservative in the nation, acted barely a month after a sharply divided panel of its judges issued a 2-1 ruling upholding Burdine's death sentence.

That decision precipitated a bevy of critical newspaper editorials around the nation, including several in Texas--which has executed more people than any other state since the U.S. Supreme Court reinstated the death penalty in 1976. The San Antonio Express-News decried the ruling as a "Major Black Eye for Justice," while the Houston Chronicle said it a made a mockery of the 6th Amendment right to counsel. The Austin American-Statesman derided the judges for being "Asleep at the Bench."

The Oct. 27 ruling was authored by Judges Rhesa H. Barksdale of Jackson, Miss., and Edith H. Jones of Houston, a President Reagan appointee who has been touted as a possible nominee for the U.S. Supreme Court if Texas Gov. George W. Bush becomes president. Judge Fortunato P. Benavides of Austin, Texas, a President Clinton appointee, issued a strong dissent.

Last year, U.S. District Judge David Hittner, a Reagan appointee in Houston, had ordered a new trial for Burdine, saying that "a sleeping counsel is equivalent to no counsel at all."

But Barksdale and Jones disagreed.

Their decision stated that they were not "condoning sleeping by defense counsel during a capital murder trial." However, the two jurists also said that, from the trial record, "it is impossible to determine--instead, only to speculate--that counsel's sleeping" actually hurt Burdine's case.

In his dissent, Judge Benavides said, "It shocks the conscience that a defendant could be sentenced to death under the circumstances surrounding counsel's representation of Burdine."

The appeals court acted Wednesday in response to a petition from Burdine's attorneys, Robert L. McGlasson of Decatur, Ga., and Mandy Welch of Houston. The court grants review by all the judges in only 1% of the cases in which a lawyer requests it.

"We are absolutely pleased with this development," McGlasson said, adding that he hopes that it will lead to a new trial for Burdine on the grounds that he received "ineffective assistance of counsel" from Cannon, who is now dead.

Heather Browne, spokeswoman for the Texas attorney general's office, which urged the court to permit Burdine's execution, said the appeals court's decision to grant a full review "shows the significance and importance of the legal issues presented."

"We look forward to presenting our argument to the full court," she said.

Burdine's attorneys say that his case raises questions of "exceptional public importance," including:

* Whether a capital criminal defendant has a right to an attorney who remains awake through trial.

* Whether a defendant is automatically prejudiced when an attorney sleeps through substantial portions of trial in view of the jury.

Under prior Supreme Court rulings, it is difficult to get a verdict reversed because of "ineffective assistance of counsel."

To prove that a lawyer's work was inadequate, the Supreme Court held in 1984, it must be shown that an attorney's performance was well below norms and that it prejudiced a defendant's case. The high court also ruled the same year that there are some circumstances in which a lawyer's performance is so bad that prejudice can be presumed. Last year, Judge Hittner found that this was just such a case.

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