New Trial Is Sought for Inmate Whose Lawyer Slept in Court

January 23, 2001

By RICK BRAGGNEW ORLEANS, Jan. 22  - A death row inmate in Texas whose lawyer sleptthrough parts of his 1984 murder trial should be a granted a newtrial and be represented by a defense counsel who is notunconscious for as long as 10 minutes at a time, his new lawyertold a federal appeals court here today.The defendant, Calvin Burdine, was convicted of stabbing a50-year-old man with a butcher knife in the Houston area in 1983.His lawyer at the time slept on several occasions during Mr.Burdine's 13-hour murder trial, said Robert McGlasson, his newlawyer, in a hearing before the full United States Court of Appealsfor the Fifth Circuit. Mr. Burdine's former lawyer, Joe Cannon, who is now dead, did notjust nod off for a few seconds; he slept apparently soundly asthe prosecution questioned witnesses and presented its case, Mr.McGlasson said."He was unconscious," Mr. McGlasson said.A sleeping lawyer, Mr. McGlasson argued, cannot protect his client cannot object, cannot rebut and cannot even summarize the case in aclosing argument.A drunken lawyer, a drug-addicted lawyer or a mentally ill lawyercan, at least, "see something wrong and shout, `I object,' " Mr.McGlasson said. "But an unconscious lawyer is completely incapable ofcross-examination in trial," he said. Defense lawyers for Mr. Burdine have described Mr. Cannon as beingas responsive in court as a potted plant. The court did not say when it would rule on the appeal. In an evidentiary hearing in federal court in 1995, three jurors and acourt clerk testified that Mr. Cannon fell asleep during the trialand once even laid his head on the defense table and slept. "Sometimes it was for at least 10 minutes," Mr. McGlasson said. A federal judge in Texas later ruled that Mr. Burdine did notreceive adequate defense counsel or a fair trial, and ordered thestate to retry him or release him from death row, where he haslived for 16 years. Mr. Burdine, now 47, says the police intimidated him intoconfessing to the murder of W. T. Wise in a mobile home outsideHouston in 1983. Julie Parsley, a Texas state prosecutor, agreed that Mr. Cannonslept during the trial, but she argued that his napping did notjustify a new trial. Ms. Parsley told the appeals court that Mr. Cannon's sleepinessmight have caused him to make errors in defending his client butthat there was no proof that those errors affected the verdict. A three-judge panel of the court had earlier agreed with Ms. Parsley, ruling 2 to 1 that Mr. McGlasson could not prove that Mr. Cannon was asleep during critical moments in the trial. But the court agreed to reconsider the case in a hearing by all 15 members. Mr. McGlasson said after the hearing that it should not matter when the lawyer slept during the trial, because any amount of unconsciousness during the trial crippled his client's defense.How, he argued, can a lawyer give the crucial closing argument if he did not hear all the testimony, or see all the evidence? Mr. McGlasson appealed the case to the federal courts after state courts in Texas found that a sleeping lawyer was not a sufficientground for a new trial. Using the same standard as the one it uses for drunken lawyers,drug-addled lawyers and mentally ill lawyers, the state courtsruled that Mr. Burdine still had an adequate defense. Responding to those rulings, Mr. McGlasson said, "The state does not believe that you have a right to a lawyer who stays awake." Opponents of the death penalty are closely following the case. Stephen Bright, a lawyer in Atlanta who specializes in death penalty cases, called the Texas courts' handling of the case "a disgrace."