I CAN DO THIS IN MY SLEEP?

I’ve decided that maybe I’m doing this whole lawyer thing wrong. I really need to get more sleep. I’m not talking about at home, I’m talking about in the courtroom.

My new inspiration is a defense lawyer in Texas by the name of Joe Cannon. Seems that ol’ Joe was appointed to represent this guy named Calvin Burdine. Burdine was accused of stabbing his gay lover to death. The state was seeking the death penalty.

Now, most of us would be a little nervous with the knowledge that one screw-up might just result in a miscarriage of justice that would lead to the death of a man for a crime he didn’t commit. Not Joe. With the kind of sang-froid, not to mention savoir-faire, that must have been the envy of the Texas Bar, Cannon was actually observed napping during the trial by three jurors and the court reporter, who noted that he slept for as much as ten minutes at a time while his client was on trial for his life. It probably came as no great surprise, therefore, that Burdine was convicted and sentenced to death. On appeal, Burdine’s appellate lawyers argued that the Sixth Amendment guarantee of effective counsel for one’s defense should mean, at a minimum, that said counsel is actually awake.

Not so fast, said a three-judge panel of the Fifth Circuit Court of Appeals. It may be that Cannon was asleep, but that doesn’t mean that he was ineffective. After all, the Justices argued, you haven’t actually shown when he was sleeping. "On this record," wrote Circuit Judge Rhesa Hawkins Barksdale, "we cannot determine whether Cannon slept during a ‘critical stage’ of Burdine's trial." After all, Barksdale reasoned, "it is impossible to determine whether, for example, counsel slept during the presentation of crucial, inculpatory evidence, or during the introduction of unobjectionable, uncontested evidence." In other words, the Court decided that, for all we know, Cannon was sleeping through the unimportant, boring stuff. In order to overturn the conviction, the Court wanted to be convinced that Sleepy Joe was crashed out during the really important parts.

We may never know, of course. We can’t ask Cannon, because he’s reportedly passed away. (One wonders how they could tell). But can you see this principle applied to other walks of life? "Well, yeah, officer, I was asleep at the wheel, and yeah, the plane did crash into a schoolyard full of kids, but you can’t prove that the two had anything to do with one another."

Let me submit this proposition to you: any time a judge or jury can look over in a capital trial and see that the defense lawyer is snoozing, that automatically becomes a "critical stage" of the trial. It's the point at which the judge or jury gets the inescapable message that this is not somebody his own lawyer cares about, so why should we?

Actually, if you read further into the opinion, it appears that Judge Barksdale (and, one supposes, the other members of the panel who voted with her) don’t really believe that Cannon was actually sleeping. After all, they reasoned, the counsel who handled Burdines’ first set of appeals didn’t raise the issue. Of course, the fact that that counsel was Sleepy Joe his ownself might have had something to do with that. But, Judge Barksdale rejoins, Burdine could have asked someone else to handle the appeal.

Of course Burdine should have found himself another lawyer for the appeal. After all, there are so many lawyers in Texas just falling all over themselves to represent convicted murderers, especially gay ones.

"We are bound by the State court’s findings that Cannon slept during trial," Judge Barksdale observes, but she’s obviously not happy about it. The court chose to skirt around the fact that the quality of counsel appointed in death penalty cases ranges from the brilliant and dedicated to the bumbling and, occasionally, the comatose. Confronted with a set of facts that they didn’t like, the Fifth Circuit chose not to let those facts get in the way. They shuffled the facts aside to uphold a death sentence they apparently wanted badly to uphold, whatever the facts. There’s a word for this: judicial activism. I thought conservatives were against that?

This isn’t a miscarriage of justice, it’s an abortion. There is still a chance, however, that it might be corrected. A full 15-member panel of the Fifth Circuit Court of Appeals heard arguments on the case last Monday. Let’s hope they, at least, are awake enough to decide that minimal competence in a death penalty case requires, at the very least, consciousness.

Dusty Rhoades lives in Carthage, practices law in Aberdeen, and, if you see him nodding off, is only resting his eyes. Really.

COPYRIGHT 2001 BY JERRY D. RHOADES, JR.