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It matters little to Calvin Burdine whether two of the judges who decided his appeal end up being elevated to the U.S. Supreme Court. His fate, for now, lies at the point of a needle filled with deadly potassium chloride. But when the 5th U.S. Circuit Court of Appeals held last Friday that Burdine’s sleeping lawyer was not ineffective per se, it revealed two vastly different takes on ineffective assistance of counsel from judges who have been on short lists for the nation’s highest court before — and may soon be there again. Both Edith Jones, who ruled that a lawyer’s naps during a capital trial didn’t prejudice his client, and dissenter Fortunato Benavides, who said it did, have heard their names whispered as possible U.S. Supreme Court candidates. Burdine was convicted in 1984 of helping to stab a man to death during a robbery. Burdine said he participated in the robbery but didn’t stab the victim. Jones cast the deciding vote on the panel, and in doing so marched Calvin Burdine one step closer to execution. An avowed death penalty advocate who sits in Houston, her name is mentioned often as a possible George W. Bush nominee. Benavides, a Clinton appointee who wrote that he was shocked that Burdine’s sentence was affirmed, is one of a handful of judges mentioned as a candidate to become the high court’s first Hispanic jurist. The Texas governor’s campaign said Bush has never mentioned names, but Jones was reportedly on his father’s short list at one time. She would join Justices Sandra Day O’Connor and Ruth Bader Ginsburg as the only women to have served on the court, although her views are closer to those of Antonin Scalia, who Bush has said he admires. Benavides was reportedly considered by President Clinton for the Supreme Court, but his name was forwarded to the Senate as a 5th Circuit nominee 11 days before Justice Stephen Breyer was nominated. Bush has said he would favor strict constructionists, and the opinion which Jones joined is a perfect example of that philosophy. The court was averse to applying retroactively what it said would be a new rule to Burdine’s case. It also held that while Burdine’s counsel slept through “substantial portions of the trial” — including one stretch of at least 10 minutes — it could not be determined whether that included a “critical stage of the proceeding” as defined by U.S. Supreme Court precedent. Benavides saw things differently. “In my opinion, it shocks the conscience that a defendant could be sentenced to death under the circumstances surrounding counsel’s representation of Burdine,” Benavides wrote in Burdine v. Johnson, 99-21034. “I… am convinced that granting relief on Burdine’s claim does not require announcing a new constitutional rule of criminal procedure.” Rafael Santiago, president of the Hispanic National Bar Association, said Benavides remains on the HNBA’s shortlist, although it is being revised. That list is forwarded to both political parties and is considered important because many believe that a Hispanic will be the next appointee. By 2005, Hispanics are expected to be the largest minority in the United States, according to Census figures. Even Bush may consider one of the HNBA’s candidates. During an HNBA forum nationally televised on C-SPAN, a Bush representative said the governor’s first appointment would be a Hispanic. “We were surprised he even said it,” Santiago said. No such commitments have been forthcoming from Democratic candidate Al Gore. The majority in Burdine’s case appeared irked that his claims of ineffective assistance due to his lawyer’s lack of consciousness appeared, as they emphasized with italics, for the first time 11 years after his trial. Burdine’s current attorney, Decatur, Ga.-based Robert McGlasson II, argued that it was never raised because the sleeping trial lawyer, Joe Cannon, continued to represent Burdine on appeal. McGlasson later discovered three jurors and a court reporter who said Cannon slept through parts of the trial. Neither the trial judge nor Burdine ever mentioned it. The court rejected the notion that naps of any length were prejudicial per se, conducted a harmless error analysis, and sided with state prosecutors. The majority opinion was written by Judge Rhesa Barksdale. McGlasson said the “substantial portions” finding was important because once the recesses and late starts are subtracted from the six-day trial, the case was before the jury for a grand total of 12 hours. “The guy’s trial file was five pages long,” McGlasson said. Despite the lower court’s findings of fact, the majority opinion delved into the transcript of the case — which included 75- page stretches where Cannon was not heard — and ruled it was impossible to tell when the sleeping occurred and whether it occurred at crucial moments. McGlasson is filing a petition for an en banc hearing in the 5th Circuit. If he’s not successful, he said, he’ll push forward. “If we don’t prevail, we’ll take it up to the Supreme Court,” he said. If the case ends there, only eight justices may vote on it. One may have to recuse him or herself, having already decided the issue in a lower court.

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