Every once in a while, it seems appropriate to revisit a case written about previously in this column; especially when a new decision has been reached by a higher court.


I am going to take this occasion to revisit the matter of Calvin J. Burdine, also known as the man with the sleeping lawyer.  Mr. Burdine was convicted of murder in Texas in 1983, and his case soon became a cause celébre, as his attorney apparently had a hard time staying awake during the trial.  According to the court clerk, the bailiff, and the jurors, attorney Joe Cannon caught a few winks on a fairly regular basis during Mr. Burdine’s jury trial. 


It appeared as if justice would be done when a judge last year ordered that Mr. Burdine receive a new trial; however, the U.S. Fifth Circuit Court of Appeals recently disagreed.  Unfortunately, by a two-to-one vote, the Appellate Court overturned the District Judge’s appropriate decision that “a sleeping counsel is equivalent to no counsel at all.”


In an opinion worthy of a place in Alice in Wonderland, Judge Edith Jones wrote that, “One could not conclude that the sleeping attorney hurt Mr. Burdine’s chances of winning his case, that would be only speculation.”  Keep your eyes and ears open for the name Edith Jones, for if George W. Bush is in a position wherein he gets to appoint a Supreme Court Justice, Judge Jones is on his short list.


I could not agree more with the sentiments of the dissenting Appellate Court Judge, Mr. Benavides, who said that he believed this decision “shocks the conscience.” 


The position of the Texas Attorney General who prosecuted this case is that although he concedes that Mr. Cannon slept through parts of this jury trial, his performance, while admittedly not of the highest caliber, “passed constitutional muster.”


The United States Supreme Court has made it difficult for people to get jury verdicts overturned due to ineffective assistance of counsel.  The Court has required that a defendant not only show that his attorney’s work was well below the norm, but also must show prejudice, and that the lawyer’s work prejudiced the defendant’s case.  Judge Jones finds it speculative as to whether or not Mr. Burdine’s case was prejudiced by his napping lawyer, Judge Benevides thinks it is clear.  Judge Jones pointed to a previous Court decision upholding a guilty verdict when the defense attorney had been clearly drunk.  Well, maybe the ruling pertaining to the intoxicated lawyer should be different next time.  It doesn’t sound like a wonderful precedent upon which to rely.


What is perhaps most telling is that the transcript of the jury trial showed that Mr. Burdine was cross-examined quite aggressively while on the witness stand – his cross-examination took up 72 pages of transcript.  How often did Mr. Cannon object?  Not once.  It’s hard to object when you’re sleeping.  The cross-examination included a question about whether Mr. Burdine preferred being the “man or the woman” when engaged in homosexual acts.  Obviously, this had nothing to do with the case, and is in no way relevant, and is extremely prejudicial; however, it is difficult for a sleeping attorney to make an objection. 


What did Judge Jones say about that?  She concluded that it is possible that part of Mr. Cannon’s defense strategy was to not object while his client was being cross-examined on the witness stand.  I would suggest that it’s hard to know whether or not this was part of Mr. Cannon’s strategy, as he was sleeping during at least a significant part of the cross-examination.


Mr. Cannon, who is now deceased, allegedly dozed through the jury trial of another client who has since been executed.    Mr. Cannon holds the dubious distinction of having had ten clients on death row in Texas, which puts him at number two on the all-time list of Texas attorneys whose clients end up on death row. 


So there you have it.  How would you like to be accused of murder, and be convicted at least in part because your attorney slept through parts of the trial.  Is this not reason to overturn a verdict of guilty?  Doesn’t one’s right to an attorney include the right to an attorney whose eyes are open during the jury trial?  I don’t think it’s too much to ask that before we put someone to death, he be entitled to a jury trial with an attorney who, at absolute minimum, is physically awake throughout the proceedings.