Attorney’s Dozing at Center of Texas Murder Case Challenge

Does a defendant in a capital murder case have an absolute right to an attorney who stays awake for the entire trial?

A federal appeals court--three of whose members are considered possible nominees for the U.S. Supreme Court--sharply questioned a defense lawyer and a Texas prosecutor about that thorny, unresolved issue here Monday.

All 14 active judges of the U.S. 5th Circuit Court of Appeals met to reconsider a highly controversial ruling issued in October by a sharply divided three-judge panel of the court. The panel held that the state of Texas is entitled to execute convicted murderer Calvin J. Burdine, even though his attorney had slept through substantial portions of Burdine’s 1984 trial in Houston.

The two judges in the majority said that Burdine, now 47, had failed to prove that he was prejudiced by his attorney Joe Frank Cannon’s frequent naps--overturning a decision by federal District Judge David Hittner in Houston who in 1999 ruled that “a sleeping counsel is equivalent to no counsel at all.”

Burdine’s current lawyer, Robert L. McGlasson, began his argument Monday by quoting the dissent last October of Judge Fortunato P. Benavides, who wrote that “it shocks the conscience that a defendant could be sentenced to death under the circumstances surrounding [Cannon’s] representation of Burdine.”

The ruling precipitated criticism around the nation, as well as negative editorials in five of Texas’ largest newspapers--including the Houston Chronicle, which said it made a mockery of the federal constitutional guarantee of the right to counsel. In a rare move, the 5th Circuit--which has jurisdiction over cases from Louisiana, Mississippi and Texas--granted McGlasson’s request that the full court rehear the case, an action requiring a majority vote and something the court does in only 1% of the cases in which a lawyer requests it.

The Burdine case has become something of a battle cry for those concerned about the administration of capital punishment in Texas, which has had far more executions than any other state, and in particular about the adequacy of attorneys appointed to represent indigents facing the death penalty.

In support of his argument in which he called Cannon “no more sentient than a potted plant,” McGlasson cited the testimony of several witnesses, including the court clerk and jurors from the 1984 trial. They said that Cannon, who is now dead, slept repeatedly during the trial, where Burdine was convicted of stabbing to death his former gay lover, W.T. Wise, at a trailer they shared in 1983.

The witnesses said that Cannon’s head often bobbed, that he sometimes rested his head on the table and that at points he was asleep for 10-minute stretches. “An unconscious lawyer can’t object, can’t rebut an argument and can’t effectively cross-examine a witness,” McGlasson said. “The trial lost its character as a confrontation between adversaries.”

Arguing for the state of Texas, Deputy Solicitor General Julie C. Parsley did not challenge the findings of a lower court judge that Cannon periodically slept during the trial. Regardless, she said, Cannon’s performance was not so bad that Burdine was entitled to a new trial on grounds that he had been ineffectively represented at trial.

Parsley said that Cannon’s failure to stay awake may have caused him to make legal errors, but she added that there is no way to establish that those errors rendered the guilty verdict “unreliable.” She said the evidence against Burdine was “overwhelming.”

Moreover, Parsley stressed that Cannon had taken some action in court on Burdine’s behalf. Cannon “made arguments, presented witnesses, asked questions,” Parsley said.

Judge Patrick E. Higginbotham, one of the possible Supreme Court nominees, expressed skepticism Monday at Parsley’s arguments. He said that when a lawyer sleeps for 10 minutes at a stretch in the courtroom and “no one intervenes,” including the trial judge, that “suggests an air of casualness” that could have a “corrosive influence” on the trial.

No specific record exists of just how often Cannon slept during the trial, which spanned six days and 13 hours of courtroom time. Unlike the court clerk and several jurors, the trial judge who appointed Cannon to represent Burdine said he did not see Cannon sleep.

Benavides Monday asked Parsley who was supposed to “make a record” of the extent of Cannon’s lapses. She acknowledged that “there would be no record if no one” in the courtroom took any action.

Judge Carl E. Stewart, meanwhile, asked “isn’t there a level of competence” below which an attorney cannot fall without prejudice being presumed? Parsley responded that “regardless of how regrettable” Cannon’s conduct was, it did not plummet that low.

Although the U.S. Supreme Court said as long ago as 1931 that a defendant in a death penalty case is entitled to “the guiding hand of counsel” at all stages of the case, appellate courts rarely reverse a conviction on the grounds that a lawyer has provided “ineffective assistance of counsel.”

In a 1984 decision, the Supreme Court said that in order to prevail on such a claim, an inmate has to prove both that his lawyer’s performance fell well below professional norms and that it harmed the client’s case to the degree that it likely changed the outcome of the trial.

The same year, however, the Supreme Court also ruled that there could be instances in which a lawyer’s performance was so egregious that prejudice could be presumed. McGlasson contends that this is just such a case.

Judges Rhesa H. Barksdale and Edith H. Jones, who comprised the majority in October, expressed skepticism Monday about McGlasson’s contention that Cannon’s conduct was so deficient that Burdine should automatically be granted a new trial.

Jones, an appointee of President Reagan who is also a possible Supreme Court nominee, said she thought that McGlasson was asking for a broader rule on the significance of a lawyer sleeping than rendered in any prior court decision.

In their majority decision last October, Barksdale and Jones wrote that “it is impossible to determine” from the trial record that Cannon’s dozing hurt Burdine. “We cannot determine whether Cannon slept during a ‘critical stage’ of Burdine’s trial,” the jurists wrote, indicating that not all portions of a murder trial are significant.

The 5th Circuit is considered one of the most conservative federal appeals courts in the nation. Nine of the court’s 14 judges were appointed by Republican presidents and five by Democrats.

San Antonio-based Emilio M. Garza, who was appointed by former President Bush, has been mentioned along with Houston-based Jones and Dallas-based Higginbotham--both appointed by Reagan--as possible Supreme Court nominees if a vacancy arises while President Bush is in office. Unlike the other two, Garza asked no questions Monday.

The court gave no indication when it would rule. If the 14 judges are evenly divided, Burdine would win because it would leave in place Hittner’s initial decision.