But in a stinging dissent, appellate Judge Fortunato P. Benavides, an appointee of President Clinton, said, “It shocks the conscience that a defendant could be sentenced to death under the circumstances surrounding counsel’s representation of Burdine.”
Since the Supreme Court permitted states to reinstate capital punishment in 1976, Texas has executed 232 people, including 145 while Bush has been governor, far and away the most of any state in the nation.
Under Supreme Court rulings, it is very difficult to get a verdict reversed because of “ineffective assistance of counsel.” As long ago as 1932 the high court ruled that a defendant needs “the guiding hand of counsel at every step in the proceedings against him.” To prove that a lawyer’s work was inadequate, however, the justices ruled in 1984 that a defendant has to show, not only that his attorney’s performance was well below norms, but also that the lawyer’s work prejudiced the defendant’s case. On the other hand, the high court has also said that there are some circumstances in which a lawyer’s performance is so bad that prejudice can be presumed.
Burdine’s appellate attorney Robert L. McGlasson said that he was deeply disturbed by the decision and that he would ask for a rehearing by a larger panel of 5th Circuit judges or, failing that, seek review by the U.S. Supreme Court.
The Texas attorney general’s office has conceded that Cannon repeatedly slept through parts of Burdine’s trial. But the prosecutors argued that his performance, while shoddy, passed constitutional muster.
Even if Friday’s ruling stands, Burdine, who already has had four stays of execution, will not immediately face execution. His lawyers have raised several other issues that have not yet been ruled on.
The federal district judge who originally overturned Burdine’s sentence, Judge David Hittner, ruled that a lawyer falling asleep during substantial portions of a trial was one of those cases in which reversal should be automatic.
The Supreme Court, acting in a case that has come to crystallize arguments over the adequacy of legal representation in death penalty cases, today let stand an appellate ruling that a Texas death row inmate is entitled to a new trial because his lawyer fell asleep repeatedly during his original trial. The justices said nothing in rejecting the ...
Amnesty International, a frequent critic of the Supreme Court's death penalty decisions, said: ''The Supreme Court has served justice today.''. In another development today bearing on the death penalty, three justices filed an opinion dissenting from stays of execution the court granted last month to two Texas death row inmates.
Virginia, No. 00-8452, the case argued in late February that challenges the death penalty for mentally retarded defendants as cruel and unusual punishment . A ruling in favor of the Virginia death row inmate, Daryl R. Atkins, would presumably be retroactive and apply to any other retarded death row inmates whose appeals were not yet final.
Just last week, in a death penalty case from Tennessee, the justices voted 8 to 1 in overturning a federal appeals court's ruling that a defense lawyer's failure to make a closing argument at his client's sentencing hearing was a deficiency of such magnitude as to invalidate the death sentence.
Mr. Burdine, 48, was convicted of killing a 50-year-old man in 1983. His murder trial lasted six days. It is not clear how much of the proceedings his court-appointed lawyer missed. The appeals court called the portion ''not insubstantial.''
Cone, raised an issue of how to apply the Sixth Amendment's guarantee of effective assistance of counsel: when is a lawyer's ineffectiveness sufficiently glaring that the defendant can be presumed to have suffered serious harm?
He then turned to the federal courts. The Federal District Court in Houston granted his habeas corpus petition in 1999. A three-judge panel of the Fifth Circuit, which is based in New Orleans, then overturned that ruling in a 2-to-1 decision in 2000 that received widespread attention.
McFarland was charged after his nephew said he had admitted to the robbery and an eye witness identified him, although her initial ID was tentative. No physical evidence connected McFarland to the crime. The nephew was paid $900 from Crime Stoppers for his information.
Melamed did examine all but three of the prosecution witnesses, however. He had filed motions, tried to exclude evidence, hired an investigator and researched legal issues. He also was ready to try the case himself. At trial, Melamed questioned the nephew about his $900 payment form Crime Stoppers and his previous admission to a mental institution.
But Benn did cross-examine the eye witness, bringing out that she initially told police she wasn’t sure she could make an identification. Benn also questioned her ability to recognize McFarland in an initial photographic array a month after the crime. In closing arguments, Benn told jurors that her memory was unlikely to have improved when she later identified McFarland in a live lineup.