Mon Jun 3,10:34 AM ET
By James Vicini
http://story.news.yahoo.com/news?tmpl=story&ncid=578&e=2&cid=578&u=/nm/20020603/ts_nm/court_lawyer_sleep_dc_1
WASHINGTON (Reuters) - The U.S. Supreme Court (news - web sites) on Monday rejected an appeal by Texas, which wanted to execute a death row inmate even though his lawyer slept repeatedly during his 1984 murder trial in Houston.
The justices let stand a U.S. appeals court ruling that Calvin Burdine deserved
a new trial because his lawyer dozed off frequently enough and for long enough
stretches to deprive him of his constitutional right to effective legal assistance.
The high court's action came without any comment or dissent, clearing the way for Burdine, 48, to get a new trial unless prosecutors decide to drop the case.
Texas wanted to carry out the execution. Even though the court-appointed lawyer was "repeatedly unconscious" during the trial, Texas argued it did not affect the outcome, which ended with Burdine being found guilty and sentenced to die for fatally stabbing his gay lover.
According to later testimony from jurors and court officials, the now-dead lawyer, Joe Cannon, slept as many as 10 times, for as long as 10 minutes, during the six-day trial.
Defense lawyers said Cannon slept during a critical part of the case when the prosecutor questioned witnesses and presented evidence.
Texas argued that the performance of a sleeping lawyer should be judged like those of drunk, drugged or mentally ill attorneys. In those cases, a defendant must prove the lawyer's behavior would have affected the outcome.
"The decision in Burdine illogically segregates attorney sleeping from other ... impairments that have indistinguishable effects on an attorney's ability to function during trial," Texas Solicitor General Julie Parsley said in the Supreme Court appeal.
NO PRESUMED HARM FROM SLEEPING LAWYER
She said harm should not be presumed just because the lawyer "intermittently dozed and actually fell asleep."
Parsley said the appeals court was wrong to equate sleeping with temporary absences from trial, which automatically result in reversal of a conviction. Other appeals courts analyze whether such absences amount to a "harmless error," she said.
Parsley predicted the appeals court decision "will invite countless ineffective assistance (of counsel) claims based on any type of intermittent 'unconsciousness' by counsel during trial."
The New Orleans-based appeals court ruled that a sleeping lawyer can exercise no judgement whatsoever, while drunk, drugged or mentally ill lawyers can at least exercise impaired judgement.
Robert McGlasson, who represents Burdine, called the claims by Texas of conflicting appeals court rulings on the issue baseless.
"The decision below is a case-specific, fact-based ruling on a point of such exceeding rarity that the federal courts have seen its like exactly three times since the mid-1980s," he told the justices in urging them to reject the state's appeal.
Burdine was sentenced to die for stabbing to death W.T. "Dub" Wise in 1983 at the trailer home the two shared in Houston. Burdine said he was angry because Wise had asked him to prostitute himself to earn more money.
A federal judge granted Burdine a new trial, based on Cannon's sleeping, but he also said Cannon referred to his client with gay slurs.
A three-judge panel of the appeals court ruled that a sleeping lawyer could provide effective counsel by not dozing during important parts of the trial. But the full appeals court, by a 9-5 vote, ruled for Burdine, deciding his trial was fundamentally unfair.