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The U.S. Supreme Court eventually could be asked to determine whether a lawyer’s naps during a capital murder trial violated a Texas death row inmate’s constitutional right to legal representation. The 5th U.S. Circuit Court of Appeals, in an Oct. 27 ruling, held that Calvin Burdine must show how he was harmed when his lawyer nodded off during his 1984 trial for capital murder. The 2-1 decision by a three-judge panel of the court reversed a 1999 ruling by U.S. District Judge David Hittner of Houston, who ordered that Burdine either be retried or freed. Hittner, who found that lawyer Joe Cannon slept through parts of Burdine’s trial, held that “a sleeping counsel is equivalent to no counsel at all.” Robert McGlasson, an Atlanta, Ga., lawyer who represents Burdine, says he will seek a rehearing before the full 5th Circuit Court. If that fails, McGlasson says, he will seek a review by the U.S. Supreme Court. David Dow, a professor at the University of Houston Law Center, says he believes the Supreme Court will be interested in the issue raised by this case. “This is a ground-breaking ruling,” Dow says. The decision by 5th Circuit Judges Edith Jones and Rhesa Hawkins Barksdale said the evidence presented to the panel did not show whether Cannon slept during the presentation of crucial evidence or during the introduction of unobjectionable, uncontested evidence. “Burdine’s claim does not involve impairments of the Sixth Amendment right that are easy to identify,” Jones wrote in the majority opinion. Dow says the majority rejected a long-standing principle that it’s not necessary to show harm if there has been an actual denial of counsel. “It (the 5th Circuit’s ruling) introduces harm analysis into the single corner of constitutional doctrine that said harm analysis was unnecessary,” says Dow, who specializes in constitutional and death penalty law. Harris County District Attorney John B. Holmes says the 5th Circuit, in reversing Hittner’s ruling, affirmed what the court has said in the past — that only a limited number of issues can be categorized as fundamental error. Even if Cannon slept through portions of the trial — and the prosecution argues that he didn’t — Burdine will “have to show where he’s harmed,” Holmes says. However, Holmes says that other federal circuits do not have a harmless error rule. McGlasson says affidavits signed by three jurors and a court clerk at the trial indicate that Cannon dozed off a number of times, sometimes sleeping up to 10 minutes at a stretch. “This case brings a whole new meaning to the idea of a dream team,” he says. Burdine was sentenced to death for the 1983 murder and robbery of his former roommate, W.T. Wise, with whom he allegedly had a homosexual relationship. McGlasson says Burdine’s co-defendant was paroled after serving about 8 years of a 45-year sentence.

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