Tuesday, July 09, 2002

This was the beginning of the Supreme's busy month. (reg. req.) It seems like an easy call.

Inmate Whose Lawyer Slept Gets New Trial

WASHINGTON, June 3 — The Supreme Court, acting in a case that has come to crystallize arguments over the adequacy of legal representation in death penalty cases, today let stand an appellate ruling that a Texas death row inmate is entitled to a new trial because his lawyer fell asleep repeatedly during his original trial.

The justices said nothing in rejecting the appeal filed by the Texas attorney general, John Cornyn, who argued that the appeals court decision had created an "arbitrary breach in the law" governing the effective assistance of counsel. The state's brief said the ruling, if allowed to stand, would invite myriad appeals by "imaginative" convicts trying to convert a lawyer's "impaired trial performance" into an automatic ticket for a new trial.

It is usually risky to interpret the Supreme Court's silence as a reflection on the merits of a case. But it was hard to avoid the sense that whatever danger the justices thought the appeals court's ruling might pose for the legal system, they had decided that it would be even more dangerous for the Supreme Court to suggest that for a lawyer to sleep through a trial was acceptable.

By simply turning down the Texas appeal, the court at least suggested that the sleeping lawyer's deficiency did meet the test for automatic reversal. In ruling for the client, Calvin J. Burdine, last August, the Fifth Circuit suggested as much: "Unconscious counsel equates to no counsel at all," the majority said.

Mr. Burdine, 48, was convicted of killing a 50-year-old man in 1983. His murder trial lasted six days. It is not clear how much of the proceedings his court-appointed lawyer missed. The appeals court called the portion "not insubstantial."

At a 1994 hearing before a Texas state court, which granted Mr. Burdine's petition for a writ of habeas corpus and ordered a new trial, three jurors and the court clerk from the original trial testified that his lawyer, Joe Cannon, dozed repeatedly. Mr. Cannon, who has died, denied dozing and said he had a habit of closing his eyes and tilting his head in order to concentrate.

Roe Wilson, chief of the appellate section of the Harris County, Tex., district attorney's office, said today that a new lawyer would be appointed for Mr. Burdine and that the new trial would take place as soon as possible. "It will be pretty easy for use to retry him," Ms. Wilson said. "He gave a confession."