Conscious, at the Least

Bad enough that Calvin Burdine was sentenced to death after his lawyer napped and nodded through his 1984 murder trial in Texas. Worse that a federal appeals court panel in 2000 upheld the conviction, insisting that while it did not “condone sleeping by a capital counsel during a capital murder trial,” it was “impossible to determine ... that counsel’s sleeping” actually hurt Burdine’s case.

Fortunately, the entire 5th Circuit Court of Appeals, sitting in New Orleans, blocked Burdine’s execution last year, ordering that he be retried. The court concluded that if the lawyer snoozed at the defense table--eyes closed, head bobbing “for at least 10 minutes” on one occasion, according to one courtroom witness--his client did not get a fair trial. This grotesque appeal should have ended there. But now Texas prosecutors are asking the U.S. Supreme Court to review the appeals court ruling so they can send Burdine to the death chamber, the manifest incompetence of his lawyer notwithstanding.

The justices plan to vote today on whether to take up the case and could announce their decision next week. Should they take the case, a hearing will be held in the next few months. If they decline, Texas will have to retry Burdine.

The Texas attorney general’s office argues that the 5th Circuit ruling conflicts with decisions from two other federal appeals courts on how much an attorney can nap during trial without violating his client’s constitutional right to counsel. Texas prosecutors also insist that the 5th Circuit decision is inconsistent with earlier decisions from the same court rejecting defendants’ requests for new trials because their attorneys were alcoholic, had Alzheimer’s disease or suffered from attention deficit disorder.

The only just and humane decision would be for the high court to summarily reject Texas’ petition. If the constitutional guarantee that criminal defendants are entitled to counsel means anything, surely it means that their lawyers have to be sober and awake.