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After fighting tooth and nail for almost two decades to defend the death sentence handed Calvin Burdine in 1984, Harris County, Texas, prosecutors made an offer that will move Burdine off death row but should keep him behind bars for the rest of his life. On June 19, Burdine — the man whose case made national headlines after it was alleged that his attorney napped off and on during his first trial — pleaded guilty to aggravated assault with a deadly weapon, felony possession of a weapon and capital murder. Judge Joan Huffman, of Houston’s 183rd District Court, sentenced Burdine to life for each charge, with the sentences to run consecutively. “Today, the so-called ‘sleeping lawyer’ case was finally put to rest,” says Danalynn Recer, one of Burdine’s lawyers and director of the Gulf Regional Advocacy Center, a nonprofit organization formed last year to do capital trial work for indigent defendants. Robert McGlasson, the Georgia attorney who won a new trial for Burdine, says the resolution reached in the case is what would have happened 20 years ago if Burdine had received adequate representation at his first trial for the 1983 robbery and stabbing death of W.T. “Dub” Wise. In 1984, Burdine’s co-conspirator pleaded guilty to murder in connection with Wise’s death and was sentenced to 45 years in prison, but was paroled after eight years, the Houston Chronicle reported on June 19. Burdine’s case has had a tortured history. In 1995, then-183rd District Judge Jay Burnett concluded in a habeas corpus proceeding that Burdine deserved a new trial. Burnett reached his conclusion after hearing testimony from three jurors and a court clerk that Burdine’s attorney, the late Joe Frank Cannon, had slept through portions of his trial. Cannon, who died in 1998, testified at the 1995 hearing that he closed his eyes to concentrate but did not fall asleep. The Court of Criminal Appeals denied relief to Burdine. In 1999, U.S. District Judge David Hittner of Houston determined that Burdine’s Sixth Amendment rights to effective assistance of counsel and a fair trial were violated because of his attorney’s napping. A three-judge panel of the 5th U.S. Circuit Court of Appeals reversed Hittner in a 2-1 decision in October of the following year. The 5th Circuit, sitting en banc, vacated Burdine’s sentence in August 2001 and ordered a new trial for him in a 9-5 decision. The U.S. Supreme Court affirmed the New Orleans court in June 2002, paving the way for Burdine to be retried. McGlasson, an attorney for the Federal Defender Program in Atlanta, says prosecutors had planned to seek the death penalty again, and he and Recer tried for some time to arrange a meeting with Harris County District Attorney Chuck Rosenthal and Assistant DA Di Glaeser. He says Glaeser contacted them, asked what kind of deal they were interested in negotiating and the DA’s office eventually responded with its offer. “We’re happy with this,” McGlasson says. “Rarely does the [Harris County] district attorney plead out cases.” Rosenthal says the plea bargain is calculated to make sure that Burdine dies in prison. “If he had been given a regular life sentence, he would walk out the door now,” Rosenthal says. Under the law in effect in 1983, when the murder occurred, a defendant sentenced to life would be eligible for parole after 20 years, says Glaeser, a felony division chief and lead prosecutor in Burdine’s case. If Burdine had been retried, it was possible that a jury again would have handed him a death sentence, Glaeser says. “But there was no guarantee,” she adds. The evidence also could be a problem after 20 years. Glaeser says that not all the witnesses who testified at the first trial are around, and memories fade over time. There’s also the possibility that someone might not think that Burdine, now 50, would be a continuing threat to society, she says. Although it has become known as the sleeping lawyer case, Rosenthal says he personally doesn’t believe that Cannon ever slept during Burdine’s trial. The worst thing about the case, Rosenthal says, is that the 5th Circuit’s ruling opens the door wider to claims of deficient counsel than the U.S. Supreme Court did in 1984′s Strickland v. Washington. Under the standard articulated in Strickland, a defendant who claims his death sentence should be reversed because of ineffective counsel must show that counsel’s deficient performance harmed his defense. Rosenthal says he believes the 5th Circuit’s majority decision in Burdine v. Johnson allows defense attorneys to make ineffectiveness-of-counsel claims for “all sorts of things and the federal courts can agree.” David Dow, a University of Houston Law Center professor who handles death penalty cases, alleges that Cannon dozed off during the trials of a number of other capital murder defendants. Dow says about 10 or 11 death row inmates have raised the sleeping lawyer issue, including one of his clients, Carl Johnson, who was executed in 1995. “Burdine was the only one who got relief for that reason,” Dow says. “The resolution [in Burdine's case] is clearly correct,” he says. “If you have a lawyer in a death penalty case who sleeps, you should get a new trial.” Austin criminal defense lawyer David Botsford says accepting the plea offer may have been the best option for Burdine. “I guess he decided spending the rest of his life in [the Texas Department of Criminal Justice] is better than running the gauntlet and risking another death sentence,” says Botsford, principal in the Law Offices of David Botsford. But Botsford says he’s concerned about the public’s perception when someone gets relief from the federal court system because he had a sleeping lawyer and then pleads guilty. “I hope it won’t give people a jaundiced eye of criminal justice,” he says.

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