WASHINGTON, 11 GIU 2002 - La magistratura del Texas ha deciso di processare di nuovo Carvin Jerold Burdine, il condannato a morte per omicidio cui la Corte Suprema degli Stati Uniti aveva revocato una settimana fa la condanna perche' il suo avvocato d'ufficio aveva dormito durante il processo.

   La procura di Houston, competente sul caso, ha deciso di non lasciare libero Burdine e di rifare il processo. 

   Lo Stato del Texas s'era opposto alla revoca della condanna, sostenendo che la mancanza d'attenzione del difensore non comporta, di per se', un giudizio ingiusto.

   Burdine era stato condannato per avere ucciso a coltellate il suo amante gay, W.T. Wise, a Houston nel 1983. L'uomo confesso' il delitto alla polizia, ma ora nega di avere ucciso Wise e afferma che a compiere il delitto e' stato qualcun altro, mentre lui cercava di impedirlo.

   Giurati e un cancelliere del tribunale hanno raccontato alla Corte Suprema come l'avvocato d'ufficio di Burdine, Joe Cannon, avesse dormito per dieci minuti di fila a piu' riprese, durante il processo del 1984. Il legale aveva sempre negato a circostanza, ma e' ormai deceduto.

   La condanna a morte di Burdine fu sul punto di essere eseguita nel 1987, prima che un ordine di sospensione consentisse al condannato di avviare l'azione ora avallata dalla sentenza della Corte Suprema.

TEXAS: Plan confirmed to retry condemned man whose lawyer slept

In a court appearance this morning by death row inmate Calvin Burdine, a prosecutor confirmed that the state plans to retry the convicted killer whose lawyer slept through portions of his trial in Houston 18 years ago.

 Burdine, 49, last week won the right to a new trial when the U.S. Supreme Court declined to review a lower court's reversal of his conviction.

 Prosecutor Paula Storts confirmed that the state would take him to court again.

 State District Judge Joan Huffman asked if Burdine had made arrangements for a lawyer, and the defendant said he was represented by Robert L. McGlasson, a federal public defender in Atlanta.

 McGlasson wrote the brief asking the U.S. Supreme Court to reject Texas' request to review the U.S. 5th Circuit Court of Appeals' reversal of Burdine's conviction.

 The 5th Circuit ruled in August that Burdine's 1984 trial was unfair because his court-appointed attorney, Joe Frank Cannon, was at times asleep during the trial.

 McGlasson could not immediately be reached for comment today.

 Burdine was convicted and sentenced to death for the 1983 murder of his roommate and lover, W.T. "Dub" Wise. He has acknowledged that he was there but denies participating in the killing.

 our years after the crime, Burdine came within minutes of being executed before getting a reprieve. He came close again in 1995 when a federal judge stayed his execution the day before he was to die.

 Jurors and court officials testified during his appeals that Cannon, who has since died, dozed off at least 10 times during Burdine's 6-day trial. At times, the lawyer napped for up to 10 minutes. 

Sleepy lawyer mistrial

Supreme Court rules death row inmate's counsel was incompetent

Bob Egelko,

Monday, June 3, 2002  

In a case that tested the outer limits of judicial review of lawyer competence, the Supreme Court refused today to reinstate the murder conviction and death sentence of a Texas man whose lawyer slept through substantial portions of his trial.

 The justices' order, issued without comment, entitles Calvin Burdine, 48, to a new trial in the 1983 stabbing death of his roommate. Burdine, who once confessed to police, now denies guilt.

 The high court rejected an appeal from Texas authorities, who argued that the lawyer's inattention did not necessarily equal an unfair trial. Today's court action means that Texas must choose whether to retry Burdine or set him free.

 The high court ruled in 1984 that defendants whose lawyers represent them incompetently can get their convictions overturned, but set a formidable barrier: The defense must prove not only that the trial lawyer fell below minimum standards, but also that the deficiencies had a likely effect on the verdict.

 Applying that standard, the Supreme Court and lower courts have upheld convictions in which the defense lawyer was drunk or mentally ill, finding a lack of proof that the case was harmed.

 Just last week, the high court voted 8-1 to uphold the death sentence of a Tennessee man whose lawyer presented no closing argument and was later found to have been mentally ill during the trial. 

The late Joe Cannon, the lawyer who represented Burdine during his 1984 trial, was also found to have slept through part of the trial of another Texas client, Carl Johnson. Johnson's death sentence was upheld, and he was executed in 1995, while President Bush was the state's governor.

 Burdine came within moments of execution in 1987 before receiving a court- ordered reprieve. Cannon had denied falling asleep.

 Bush was asked about Burdine's case while campaigning in 2000, and cited a federal judge's recent order granting a new trial as evidence that the state's death penalty system worked. As he spoke, the state was seeking to have the order overturned.

 Until last year, only one federal appeals court, the Court of Appeals in San Francisco, had ruled that a sleeping lawyer can be presumed incompetent, without requiring additional evidence that wakefulness would have made a difference.

 Last year, the Court of Appeals in New Orleans issued a similar ruling in Burdine's case.

 Citing testimony by jurors and a court clerk that Cannon dozed off as many as 10 times during the trial, for as long as 10 minutes, the court ruled 9-5 that a sleeping lawyer is no better than an absent lawyer.

 "An unconscious attorney does not, indeed cannot, perform at all," the appeals court majority said. "This fact distinguishes the sleeping lawyer from the drunk or drugged one."

 State prosecutors appealed, arguing that Burdine should have to prove Cannon could have won an acquittal or a life sentence if he had stayed awake.

 The appeals court ruling "illogically segregates attorney sleeping from other . . . impairments that have indistinguishable effects on an attorney's ability to function during trial," Texas Solicitor General Julie Parsley said in the Supreme Court appeal.

 Burdine was convicted of murdering W.T. "Dub" Wise during a robbery of the Houston trailer he and Wise shared.

 Burdine testified Wise ordered him to engage in prostitution to pay the rent, and had him beaten when he refused. Burdine said the actual killer was another man who was given leniency in exchange for his testimony against Burdine.

 In his appeal, Burdine, who is gay, also said Cannon used anti-gay slurs in a court hearing and failed to object when the prosecutor told jurors that life in prison would not be a very bad punishment for a gay person.

 It was not clear today why the court acted as it did in Burdine's case. Instead of sending the case back to the appeals court for reconsideration in light of the Tennessee case, the high court rejected Texas' appeal outright.

 The Supreme Court has not yet taken a case that asks the broader question of what to do about under-prepared or overworked death penalty lawyers. Away from the court, two justices have expressed strong reservations about the quality of legal help that some inmates receive.