Death Penalty Upheld in Texas Sleeping Lawyer Case

A federal appeals court upheld a Texas death penalty for a man whose attorney slept through much of his trial in a case that has raised questions about the quality of Texas justice. A divided three-judge panel of the Fifth Circuit U.S. Court of Appeals said it could not be proved that attorney Joe Cannon's extended naps during the capital murder trial of Calvin Burdine in 1984 had affected the outcome. ``We cannot determine whether Cannon slept during a critical stage of Burdine's trial,'' the majority opinion said Friday. ``Our rejecting Burdine's presumptive prejudice claim should not be understood as condoning sleeping by defense counsel during a capital murder trial, or any other trial for that matter,'' it said. One member of the panel, Fortunato Benavides, disagreed with the ruling, writing: ``It shocks the conscience that a defendant could be sentenced to death under the circumstances.'' Texas leads the nation in executions by a large margin, which critics blame in part on the state's failure to provide adequate counsel for impoverished defendants facing a possible death penalty. Burdine, 47, was condemned for stabbing his gay lover, W.T. Wise, to death in 1983 in the mobile home they shared near Houston. Burdine said he was angry because Wise had asked him to prostitute himself so they could have more money. In a 1995 hearing, jurors and court officials testified they had seen the court-appointed Cannon, who is now dead, sleeping for as long as 10 minutes at a time during the trial. Last year, U.S. District Judge David Hittner in Houston ordered the state to give Burdine a new trial or let him go. But Texas Attorney General John Cornyn appealed the ruling, which was overturned by Friday's decision. Burdine's attorney, Robert McGlasson, told Reuters he was ''shocked'' by the latest ruling. ``It is disturbing, to say the least, that a court has ruled that defendant in a capital murder case does not have a right to an attorney who at least stays awake, attentive and alert throughout his trial,'' he said. ``As I've always said, justice asleep is justice denied,'' McGlasson said. He said he would ask the full court to consider the case, then take it to the U.S. Supreme Court if necessary.

Texas has executed 232 people in the last 18 years, far more than any other state. Of those, 145 have been put to death since Gov. George W. Bush, now the Republican presidential candidate, took office in 1995. Bush has said many times that he believes all the people put to death during his administration got ``full and fair access to the courts'' and were guilty as charged.