Inmate Whose Lawyer Slept Is Granted Retrial

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.”

The dissenting judges also contended that not all stages of a death penalty trial are critical. Barksdale said the majority’s ruling ignored the question of “whether the evidence being presented while counsel slept was harmful to the defendant’s interests, or whether counsel could have done anything to improve the defendant’s circumstances had he been alert.”

As long ago as 1932, in a ruling stemming from the Scottsboro Boys rape case in Alabama, the Supreme Court said that a defendant in a capital trial was entitled to “the guiding hand of counsel at every stage of the proceedings against him.”

But a 1984 Supreme Court decision, Strickland vs. Washington, made it quite difficult for a defendant to prevail on an appeal when he contends that he received constitutionally deficient representation. The defendant must demonstrate that his lawyer’s performance was well below professional norms and that the attorney’s shoddy performance prejudiced his client’s case.

The Supreme Court issued another decision, U.S. vs. Cronic, the same day, though, saying that there could be instances where a lawyer’s performance was so deficient that prejudice could be presumed.

The 5th Circuit ruled last year that the Burdine trial was just such an instance. The Texas attorney general’s office unsuccessfully challenged the ruling in the Supreme Court.

Some prominent death penalty supporters said the Supreme Court action made sense. “This is one of the very few claims for which prejudice [against the defendant] could be presumed,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento. “Texas should have thrown in the towel when they got the adverse factual finding from a judge years ago that Burdine’s lawyer slept.”

Monday’s action means that the Harris County district attorney’s office in Houston will either have to retry Burdine, 49, or release him.

Roe Wilson, an assistant district attorney in Houston, said the office definitely plans to “retry Burdine for capital murder.” She said it was not clear when the trial would begin.

Burdine was convicted in 1984 of murdering his former roommate, W.T. Wise, whose body was found in 1983 in the bedroom of a trailer. Wise had been stabbed twice in the back, and his hands were tied with cord. Burdine conceded years ago that he and a friend went to rob Wise, but Burdine denies that he killed him. His co-defendant, Douglas McCreight, pleaded guilty to a lesser charge and was paroled after eight years, even though evidence introduced at trial pointed to him as the principal perpetrator.

Burdine’s appellate lawyer, McGlasson, said he hoped that the Harris County district attorney’s office would reconsider its stated intention to retry Burdine for capital murder.

“The state of Texas took a gamble years ago in defending the indefensible, and they lost,” McGlasson said. “During the intervening years occasioned by this gamble, inevitably there has been lost evidence, missing witnesses and undoubtedly memories will have faded. A person’s life should not be put in jeopardy in this context.”