When Justice Falls Asleep

A federal appeals court ruling that a criminal defendant is not necessarily entitled to a lawyer who stays awake during his or her trial would be funny if it wasn’t so shameful. The ruling came in the case of Texas inmate Calvin J. Burdine, sentenced to death for a 1983 murder, and it further heightens that state’s reputation for an assembly-line death apparatus so efficient that neither gross legal incompetence nor exculpatory evidence can slow its gears.

During Burdine’s trial, his court-appointed attorney often fell asleep at the defense table, according to jurors and the court clerk. In one instance, the clerk noted, attorney Joe Frank Cannon’s head was bowed and he was asleep for “at least 10 minutes.” Cannon was also either dozing or daydreaming while prosecutors cross-examined Burdine, a grilling that ran to 72 pages of transcript. Cannon said nothing, not even objecting when Burdine was asked clearly prejudicial questions about his sexual orientation. Cannon, who has since died, also slept during the trial of another defendant, who has already been executed.

A federal district judge overturned Burdine’s sentence as a no-brainer, noting that reversal should be automatic when the defendant’s lawyer sleeps during his trial, but a three-member panel of the U.S. 5th Circuit Court of Appeals in New Orleans didn’t see it that way. The appeals panel insisted that it was not “condoning sleeping by a capital counsel during a capital murder trial,” a statement that must be of cold comfort to those among Burdine’s fellow inmates on Texas’ death row whose attorneys came to court drunk, unprepared or uninterested in their cases. But with reasoning that makes a mockery of constitutional due process guarantees, the panel concluded that “it is impossible to determine--instead, only to speculate--that counsel’s sleeping” actually hurt Burdine’s case.

This outrageous ruling comes as Americans seem to be rethinking their once rock-solid support for capital punishment. The growing sophistication of DNA testing and new attention to trial abuses such as those in Burdine’s case have prompted many to ask themselves whether innocent men and women have been put to death in Texas and other states since the Supreme Court reinstated capital punishment in 1976, despite assurances to the contrary by Texas Gov. George W. Bush and others.

Burdine’s current lawyer is asking for a rehearing by a larger panel of 5th Circuit judges, and, failing that, he will seek review by the U.S. Supreme Court. To let this ruling stand would be an abomination.