Did you hear the one about the guy in Texas who was on death row, whose lawyer slept through a good part of his jury trial?  I wish I were making this up.  The great state of Texas, which leads the country in executions, is getting ready to put inmate Calvin Burdine to death for a murder of which he was convicted in 1983.  It is conceded that his attorney slept through “significant portions of the trial.”  Believe it or not, the Attorney General of the State of Texas says that the conviction should not be be overturned unless “it can be proved that a defendant was specifically harmed by his lawyer’s failure to stay awake.”  Are you kidding?  Let’s start with the fact that being conscious is a pretty reasonable prerequisite for attempting to defend someone.  THIS IS MURDER, THE MOST SIGNIFICANT CRIME OF WHICH ONE CAN BE ACCUSED. This case is now before the Fifth Circuit Court of Appeals in Texas as the first appellate judge, a David Hittner, ruled in favor of the defendant.  Judge Hittner decided that it is prejudicial in and of itself if a defendant’s attorney is napping through much of his jury trial.  I am fond of his quote, which goes as follows: “A sleeping counsel is equivalent to no counsel at all.”   The attorney for Mr. Burdine also came up with a colorful statement in saying, “Justice asleep is justice denied.”


Lawyers are often accused of attempting to use words to their advantage, and the Solicitor General arguing the case for the State of Texas in favor of the execution initially described the conduct of Mr. Burdine’s attorney as “dozing” at which point the Justices let him that they saw no difference between dozing and sleeping. 


In this case it is clear that if Mr. Burdine is put to death, the State of Texas will be sanctioning that death despite the fact that his lawyer slept for anywhere between ten minutes to fifty minutes at a time. 


Something not addressed and that I am curious about is, why did no one wake this guy?  Why did the trial continue with a sleeping lawyer? 


Believe it or not, the Texas State Prosecutor argued that it would set a bad precedent if the appeals court ruled that a new trial should be granted “simply because his lawyer had slept for substantial portions of his initial trial.”  Simply?  There is nothing simple about this.  Why not put the word “merely” in there?  The guy was charged with murder and his lawyer slept through a good part of his trial.  Shouldn’t that necessitate a new trial?  There is almost an Alice in Wonderland feeling about this. 


Apparently, Mr. Burdine’s lawyer slept through the cross-examination of Mr. Burdine, and was not awake to object to the time at which his client was asked by the prosecutor whether he preferred to be the man or the woman during the committing of a homosexual act.  This is a clearly objectionable question, as it had nothing to do with the jury trial, and was geared solely to prejudice the jury against Mr. Burdine.  An attorney who was something other than comatose might actually have objected and Mr. Burdine would not have had to answer that question, and the prosecutor likely would have been admonished for asking an improper question.


It amazes and saddens me that in the year 2000, there are prosecutors arguing that convictions like this should be upheld.  This gives new meaning to the expression “let sleeping dogs lie.”  I don’t think it’s asking too much that, if an individual is charged with a crime and his attorney sleeps through his trial, that the conviction be reversed and the individual be afforded a new trial with a lawyer who remains conscious throughout the proceedings.