American justice

Louis Proyect lnp3 at
Tue Jan 23 11:31:26 MST 2001

Sunday Times (London), October 29, 2000, Sunday

Bush approves 146th execution

Matthew Campbell

GEORGE W BUSH will briefly leave the campaign trail on Wednesday to resume
his duties as governor of Texas and order an execution, writes Matthew

The event is certain to revive complaints about the brisk pace of
executions in Texas - Bush has had 145 prisoners put to death since
becoming governor in 1994. Al Gore might not dare to raise it, however. So
strong is support for the death penalty in America that dissent is deemed a
liability at the polls.

Bush has come under attack in the presidential race for chuckling over
suggestions that state-appointed defence lawyers have been spotted napping
in trials. He was also criticised for seeming to take pleasure in his
announcement during a debate with Gore of two forthcoming executions.

Concerns about the safety of some convictions were fuelled when Illinois
declared a moratorium on executions amid suggestions that DNA testing might
shed new light on some cases. Asked if Texas should follow suit, Bush said:
"Every person put to death under our state has been guilty of the crime


NY Times, January 23, 2001

New Trial Is Sought for Inmate Whose Lawyer Slept in Court


NEW ORLEANS, Jan. 22 - A death row inmate in Texas whose lawyer slept
through parts of his 1984 murder trial should be a granted a new trial and
be represented by a defense counsel who is not unconscious for as long as
10 minutes at a time, his new lawyer told a federal appeals court here today.

The defendant, Calvin Burdine, was convicted of stabbing a 50-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 new lawyer, in a hearing before the full United
States Court of Appeals for the Fifth Circuit.

Mr. Burdine's former lawyer, Joe Cannon, who is now dead, did not just nod
off for a few seconds; he slept - apparently soundly - as the 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 a closing argument.

A drunken lawyer, a drug-addicted lawyer or a mentally ill lawyer can, at
least, "see something wrong and shout, `I object,' " Mr. McGlasson said.

"But an unconscious lawyer is completely incapable of cross-examination in
trial," he said.

Defense lawyers for Mr. Burdine have described Mr. Cannon as being as
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 a
court clerk testified that Mr. Cannon fell asleep during the trial and 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 not receive
adequate defense counsel or a fair trial, and ordered the state to retry
him or release him from death row, where he has lived for 16 years.

Mr. Burdine, now 47, says the police intimidated him into confessing to the
murder of W. T. Wise in a mobile home outside Houston in 1983.

Julie Parsley, a Texas state prosecutor, agreed that Mr. Cannon slept
during the trial, but she argued that his napping did not justify a new trial.

Ms. Parsley told the appeals court that Mr. Cannon's sleepiness might have
caused him to make errors in defending his client but that 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 sufficient ground for a new

Using the same standard as the one it uses for drunken lawyers, drug-addled
lawyers and mentally ill lawyers, the state courts ruled 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."

Louis Proyect
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