Case of Sleeping Lawyer Revisited

NEW ORLEANS (AP) â€” Calvin Burdine's defense lawyer repeatedly dozed during the 1984 trial at which Burdine was convicted of murder and sentenced to death. <br><br>But a three-judge panel of the 5th

Monday, January 22nd 2001, 12:00 am

By: News On 6

NEW ORLEANS (AP) â€” Calvin Burdine's defense lawyer repeatedly dozed during the 1984 trial at which Burdine was convicted of murder and sentenced to death.

But a three-judge panel of the 5th U.S. Circuit Court of Appeals ruled last year that Burdine's rights were not violated, despite the lawyer's inattention.

Now the full 15-member New Orleans-based court will revisit the case, hearing arguments Monday.

``I keep praying and hoping justice will be done,'' Burdine said last week from Texas death row, where he's been imprisoned 16 years for fatally stabbing his gay lover with a butcher knife. ``I can't say which way it will go.''

Burdine, now 47, came within moments of execution in 1987 before receiving a court-ordered reprieve. He denies killing 50-year-old W.T. Wise at a trailer they shared in the Houston area in 1983.

At a 1995 evidentiary hearing, three jurors and a court reporter testified that Burdine's now-deceased attorney, Joe Cannon, often napped for as long as 10 minutes at the trial.

Burdine's current lawyers called the dozing attorney ``no more sentient than a potted plant.''

A federal judge ruled Burdine did not receive a fair trial and ordered the state to retry him or set him free.

But the 5th Circuit ordered the former nurse to remain in prison while it considered the case. In a 2-1 opinion, the panel said the conviction should stand because Burdine was unable to show that Cannon slept during critical parts of the trial.

Burdine's attorneys appealed to the full court. ``Supreme Court precedent guarantees counsel at all critical stages of a criminal proceeding, including, of course, the trial itself â€” the most critical stage,'' lawyer Robert McGlasson argued in a brief preceding Monday's hearing.

Burdine's case has bolstered arguments that capital punishment is unfair â€” and legal representation inadequate â€” for defendants who can't afford to hire their own lawyers.

``This case, for opponents of capital punishment, has been a godsend,'' said Neil McCabe, a professor at the South Texas College of Law. ``But for opponents of the death penalty to act as if this case is symptomatic of what actually goes on, it's actually unfair. There's plenty of bad things about the death penalty in the way it's done in Texas, but sleeping lawyers ... is not one of them.''

Last week, a measure was filed in the Legislature that would halt executions in Texas until 2003 while a commission studies issues such as legal representation. Texas has executed two prisoners this year after a record 40 executions last year.