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Spectators who braved freezing temperatures packed into a 5th U.S. Circuit Court of Appeals courtroom on Jan. 22 to hear arguments in Texas death row inmate Calvin Burdine’s appeal — a case that has garnered international media attention. At issue in the case is whether a capital defendant has a constitutional right to a lawyer who stays awake throughout the trial. All 14 active judges on the 5th Circuit gathered in a wood-paneled courtroom in the historic John Minor Wisdom U.S. Court of Appeals Building in New Orleans to reconsider an October 2000 ruling by a three-judge panel that held Burdine is not entitled to a new trial even though his lawyer slept through portions of his 1984 trial. In a 2-1 decision, a panel of the court held that Burdine failed to show that his lawyer’s napping had an impact on the outcome of the trial. The ruling reversed a 1999 ruling by U.S. District Judge David Hittner, who ordered that Burdine — one of 457 offenders on death row in Texas — either be retried or freed. In dissent, Circuit Judge Fortunato Benavides wrote that it “shocks the conscience” that a defendant could be sentenced to death under the circumstances surrounding the representation of Burdine. On Dec. 5, a majority of the 5th Circuit — which has jurisdiction over appeals from Texas, Louisiana and Mississippi — agreed to hear the case en banc in response to a petition from Burdine. Earlier this month, the judges came with questions and grilled Burdine’s appellate lawyer Robert McGlasson, a solo from Decatur, Ga., and Deputy Solicitor General Julie Parsley, who represents the state of Texas, during most of the hour-long hearing. McGlasson held off questions in the early minutes of his appearance by opting to deliver an opening statement. He told the court that the facts are not in dispute that his client’s court-appointed lawyer, the late Joe Frank Cannon, slept for substantial periods of the trial while prosecutors put on their case. “He did not just doze. He didn’t nod off … . He was unconscious,” McGlasson said. Quoting testimony from a 1995 state habeas hearing conducted by former state district Judge Jay Burnett (who took over the case after the trial judge retired), McGlasson said that one juror testified that Cannon slept “quite a bit,” and the clerk testified that he “slept long periods.” That is substantial, he said, considering the jury was in the box only 12 hours and 51 minutes. McGlasson argued that the naps caused Cannon to make serious mistakes during the trial because he was unaware of all the evidence presented. He noted that Cannon did not object to a prosecutor’s comments about Burdine’s homosexuality or to the admission of Burdine’s confession, although Cannon had tried to get the confession suppressed before the trial started. “The trial lost its character as a confrontation between adversaries,” McGlasson argued. RADIO REMARKS Burdine was sentenced to die by a Houston jury for the robbery and murder of his former roommate, W.T. Wise. Wise was stabbed to death in 1983 in a trailer that he had shared with Burdine. Although Burdine confessed to police in California that he had smothered and stabbed Wise, he later claimed his confession was involuntary and said he tried to dissuade an accomplice from killing Wise, McGlasson noted in his brief. The accomplice was paroled after serving less than eight years of a 45-year sentence for the murder conviction, McGlasson wrote. While the issue that the 5th Circuit must decide is whether Burdine was deprived of his Sixth Amendment right to legal counsel, two members of the court focused their attention on remarks that McGlasson made during a radio show. Circuit Judge Rhesa Barksdale, author of the Oct. 27 opinion in Burdine v. Johnson, questioned McGlasson about an interview he gave to National Public Radio after the panel issued its decision. In that interview, McGlasson said that Burdine had tried to nudge Cannon awake during the trial. Barksdale asked why there was nothing in the record before the court that indicated Burdine had been aware of Cannon’s napping. “Why did you wait 11 years to bring this up?” Barksdale asked. McGlasson said that the issue of when the claim was raised is irrelevant. He said the issue was raised as soon as he had the evidence to back it up and that the state court found that it was raised in a timely fashion. Circuit Judge E. Grady Jolly appeared agitated at times during the arguments and waved his hand to get McGlasson’s attention. He accused McGlasson of withholding information from the court and said that Burdine could have been put on the witness stand during his habeas appeal. “It does seem to me this is kind of a set-up deal,” Jolly said. McGlasson said that it was his responsibility to determine how the appeal should be presented and that Burdine was not required under the law to present evidence regarding whether his lawyer slept. But Jolly did not appear satisfied. “It just looks like to me this has not been fairly presented,” Jolly said. But McGlasson said Burnett, the state judge who recommended in 1995 that Burdine get a new trial, had established that Cannon was asleep during substantial portions of the trial. After the arguments, McGlasson told reporters that he didn’t have Burdine testify for his appeal because he didn’t want to subject him to cross-examination. In most cases, the defendant does not testify in habeas proceedings, he said. “You expose that defendant on cross-examination on every other aspect,” McGlasson said. HARMFUL SLEEP? Parsley, the Office of the Attorney General lawyer, acknowledged during the hearing that the trial had been “marred” by the defense lawyer’s intermittent sleeping. The state initially argued that Cannon had not slept during the trial, and the lawyer had testified in 1995 that he wasn’t asleep but merely concentrating with his eyes closed. However, Parsley contended that Burdine should not be granted a new trial unless he shows that Cannon’s sleeping harmed him, which she said he had not done. Parsley said Cannon had presented evidence to the jury, made arguments and cross-examined witnesses. “There was adversarial testing in this case,” she said. Judge Patrick E. Higginbotham said if a lawyer sleeps 10 minutes at a time during a trial without intervention by anyone, including the trial judge, that indicates a casualness that could have a “corrosive influence” on the trial. Former Harris County District Attorney John B. Holmes has said in an earlier interview that Judge Joseph M. Guarino, who presided at Burdine’s trial, and Ned Morris, the former Harris County assistant district attorney who prosecuted the case, said they didn’t see Cannon sleeping. Guarino and Morris have retired. The original 5th Circuit panel that heard the case said the court record did not indicate when Cannon was asleep. Benavides, the lone dissenter in that decision, asked Parsley last week who would make the record if neither the judge nor the prosecutor saw the defense lawyer sleeping. Parsley said there would be no record if no one in the court had taken action. Judge Edith Jones, who joined Barksdale in the October decision, said that McGlasson appears to be seeking a broader rule regarding sleeping lawyers than has been provided by any court in the past. The court did not indicate when or how it might rule. If there is a 7-7 split on the decision, Hittner’s ruling would be reinstated, says McGlasson, adding, “A tie goes to me.” After the arguments, Parsley said, “The court asked good solid legal questions. I’m confident they will apply the correct rule of law.” The case has drawn international attention as debate continues over the death penalty in Texas. The state carried out a record 40 executions in 2000. New York-based Guillemetter Faure, who writes for La Croix, a national Catholic newspaper in France, was among those competing for the limited number of seats. Faure said she has followed the case and has visited Burdine in prison and exchanged letters with him. Reporters from The Boston Globe and the Los Angeles Times also covered the hearing. Another spectator was Burnett, the state judge who originally recommended that Burdine be granted a new trial. “I’ve lived with this case for 15 years,” Burnett said, adding that he didn’t hear anything during the arguments that he didn’t expect to hear. Yet another spectator was Rob McDuff, a criminal defense lawyer from Jackson, Miss., who said he came to watch because he considered the 5th Circuit panel’s original decision outrageous. “To suggest a death penalty might be appropriate where a lawyer slept through major portions of the trial seems to be just beyond the pale of judicial reasoning,” he said. But McDuff said he is “cautiously optimistic” about the full court’s decision. “They took this case for a reason,” he said. “I hope the reason is to order a new trial where the lawyer is awake.” A 5th Circuit deputy clerk, who declined to give her name, said the crowd for the arguments was larger than for most cases. Most of the time, the courtroom is half full, she said. “Very, very seldom do we have a full court and spill over into another courtroom.” Although extra chairs were brought in for the arguments, some would-be spectators were turned away because there was no room.

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