Can a Sleeping Lawyer Help Client?

A Texas death-row inmate who came within minutes of execution in 1987 deserves a new trial because his former lawyer slept through long stretches of his trial, his new attorney told a federal appeals court today.

Calvin Burdine's trial lawyer "didn't just doze or daydream — he was 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 a witness."

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

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

Prosecutor Julie Parsley acknowledged that Cannon slept but told the 15 appellate court judges that Burdine did not deserve a new trial. She said there is no way to prove that any legal errors Cannon made because he was asleep rendered the guilty verdict unreliable.

"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 after three of its judges ruled 2-1 last year that Burdine did not deserve a new trial, saying McGlasson could not prove Cannon slept through critical parts of the trial. The court didn't indicate when it would rule.

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

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

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

"This case, for opponents of capital punishment, has been a godsend," said Neil McCabe, a professor at the South Texas College of Law. "But for opponents of the death penalty to act as if this case is symptomatic of what actually goes on, it's actually unfair. There's plenty of bad things about the death penalty in the way it's done in Texas, but sleeping lawyers … is not one of them."

Last week, a measure was filed in the Legislature that would halt executions in Texas until 2003 while a commission studies issues such as legal representation. Texas has executed two prisoners this year after a record 40 last year.

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