Los Angeles Times

TEXAS:Texas Fights Ruling of Legal Incompetence

Law: The state asks the U.S. Supreme Court to review a murder case reversed because the lawyer slept in court.

In a case that could help define competent lawyering, the state of Texas has renewed efforts to execute a Houston man whose murder conviction was reversed last year by a federal appeals court because his attorney had slept through portions of the case.

Calvin J. Burdine's 1984 trial was fundamentally unfair because of the "consistent unconsciousness" of his court-appointed attorney, Joe Frank Cannon, the U.S. 5th Circuit Court of Appeals in New Orleans ruled in August.

But the Texas attorney general's office recently asked the U.S. Supreme Court to review the ruling. The justices are scheduled to vote Friday on whether to take up the case and are expected to announce their decision on granting review next week. Should the high court justices agree to consider the case, a hearing probably would be held in the next few months. Should the justices decline, Texas would have to retry Burdine.

In legal papers filed with the Supreme Court, the Texas attorney general's office contends that the 5th Circuit ruling was inconsistent with the decisions of two other federal appeals courts on how often an attorney can sleep during a trial without violating his client's constitutional right to effective assistance of counsel.

Texas state attorneys also maintain that the 5th Circuit ruling awarding Burdine a new trial is inconsistent with earlier decisions rejecting defendants' claims that they were entitled to a new trial because their attorneys were alcoholic, had Alzheimer's or suffered from attention deficit disorder.

If the 5th Circuit decision is upheld, it "will invite countless ineffective assistance [of counsel] claims based on any type of intermittent 'unconsciousness' by counsel during trial," Texas Solicitor General Julie C. Parsley wrote in her brief.

"In Burdine's wake, imaginative . . . petitioners will parade expert witnesses into their . . . hearings to testify that--given trial counsel's subsequently diagnosed Alzheimer's, or bipolar condition, or alcoholism, or attention deficit disorder--it is likely that periods of unconsciousness occurred during trial, and therefore prejudice [to the defendant] should be presumed," Parsley asserted.

Although the Supreme Court held as long ago as 1932, in the Scottsboro boys rape case, that a defendant in a capital case is entitled to "the guiding hand of counsel at every stage of the proceeding against him," the high court has never ruled on whether a defendant is entitled to a new trial because his lawyer frequently fell asleep during a trial.

The Burdine case became nationally prominent during the 2000 presidential election. Reporters asked then-Texas Gov. George W. Bush about the case, which to death penalty foes had become a symbol of the troublesome way capital trials are handled in the Lone Star State. Bush defended the state's procedures.

The Supreme Court has only once overturned a death sentence on the ground that a defense lawyer provided constitutionally deficient representation. Under a 1984 decision, Strickland vs. Washington, the court set a very high bar for such claims. The defendant has to show that his attorney's performance was substantially below professional norms and that the substandard performance actually harmed his case. However, in another case decided the same year, U.S. vs. Cronic, the Supreme Court said there could be some circumstances in which an attorney's performance was so deficient that it could be presumed that the client's case was harmed.

In its 9-5 decision in October, the 5th Circuit said the Burdine case was just such an instance. "The buried assumption" in 5th Circuit rulings that have applied the Strickland principles "is that counsel is present and conscious to exercise judgment, calculation and instinct, for better or worse. But that is an assumption we cannot make when counsel is unconscious at critical times," Judge Fortunato P. Benavides wrote for the majority.

Burdine's appellate lawyer, Robert L. McGlasson, a federal public defender in Atlanta, has asked the Supreme Court to reject Texas' petition, maintaining that the 5th Circuit ruling was unremarkable and quoting the ruling's statement that it was "limited to the egregious facts" of his case.

"There is nothing in such a decision to warrant review," McGlasson wrote in his brief. The controversy has its genesis in a grisly April 1983 murder. The body of W.T. Wise, Burdine's former roommate, was found in the bedroom of a trailer with two stab wounds in the back and the hands tied with a cord.

Burdine, now 48, was convicted of the murder the following year. Burdine acknowledged that he and a friend went to the trailer to rob Wise. However, Burdine has denied that he participated in the killing.

Before Burdine's trial, his co-defendant, Douglas McCreight, pleaded guilty to a lesser charge and then testified against Burdine. He was paroled after 8 years, despite evidence introduced at Burdine's trial that indicated McCreight was the primary perpetrator of the murder.

Burdine's conviction was upheld by the Texas Court of Criminal Appeals, and the U.S. Supreme Court declined to review the case. Then McGlasson challenged the constitutionality of the conviction and, after a 1995 hearing, Jay Burnett, a state court judge in Houston, recommended a new trial because of testimony that Cannon had failed to stay awake.

In particular, Burnett relied on the statements of Rose Marie Berry, the trial court clerk, who testified that Cannon "fell asleep for long periods of time during the questioning of witnesses." At one point, Cannon fell asleep "for at least 10 minutes," Berry testified.

Moreover, one juror testified at the same hearing that Cannon "would nod his head down, bob it, with eyes closed."

The Texas Court of Criminal Appeals rejected Burnett's recommendation, saying Burdine had not proved that his defense had been prejudiced by Cannon's lapses. However, in 1999, David Hittner, a federal judge in Houston, ruled that Burdine was entitled to a new trial because "a sleeping counsel is equivalent to no counsel at all."

A 3-judge panel of the 5th Circuit reversed that decision, 2 to 1, in October 2000, agreeing with Texas officials that, although Cannon's performance was less than stellar, Burdine's new lawyers had not proved that their client was harmed by Cannon's shoddy work. 10 months later, the full 5th Circuit overturned the panel's decision by a 9-5 vote.

Cannon, who is now dead, was frequently appointed by judges to represent indigents in death penalty cases in Houston because he had a reputation of processing cases rapidly. Burdine's entire murder trial took only 13 hours of jury time. During his career, 10 of Cannon's clients wound up on death row, 2nd most of any lawyer in Texas. He slept during at least 1 other trial; that client has been executed.

The case at issue this week is Cockrell (director of the Texas Department of Criminal Justice) vs. Burdine, 01-495