Can a Sleeping Lawyer Help Client?

N E W   O R L E A N S, Jan. 22 -- A Texas death-row inmate who came withinminutes of execution in 1987 deserves a new trial because hisformer lawyer slept through long stretches of his trial, his newattorney told a federal appeals court today.

Calvin Burdine's trial lawyer "didn't just doze or daydream — hewas unconscious," attorney Robert McGlasson told the 5th U.S.Circuit Court of Appeals. "An unconscious lawyer can't object,can't rebut an argument and can't effectively cross-examine awitness."

Burdine, now 47, received a court-ordered reprieve withinmoments of execution in 1987. He denies stabbing 50-year-old W.T.Wise with a butcher knife at the trailer they shared in the Houstonarea in 1983.

McGlasson cited the testimony of several witnesses who saidBurdine's original attorney, the late Joe Cannon, repeatedly sleptfor up to 10 minutes at a time during Burdine's trial.

Prosecutor Julie Parsley acknowledged that Cannon slept but toldthe 15 appellate court judges that Burdine did not deserve a newtrial. She said there is no way to prove that any legal errorsCannon made because he was asleep rendered the guilty verdictunreliable.

"Regardless of how Mr. Cannon's errors affected the outcome,those errors were not systemic," she said.

What Did Lawyer Miss?

The full appellate court agreed to reconsider the case afterthree of its judges ruled 2-1 last year that Burdine did notdeserve a new trial, saying McGlasson could not prove Cannon sleptthrough critical parts of the trial. The court didn't indicate whenit would rule.

"I keep praying and hoping justice will be done," Burdine saidlast week from death row, where he's been imprisoned 16 years.

A federal judge ruled Burdine did not receive a fair trial andordered the state to retry him or set him free, but the 5th Circuitordered the former nurse to remain in prison while it consideredthe case.

Burdine's case has bolstered arguments that capital punishmentis unfair — and legal representation inadequate — for defendantswho can't afford to hire their own lawyers.