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Gay death row inmate gets new trial
Mon Jun 3, 8:12 PM ET - Ann Rostow, Gay.com / PlanetOut.com Network
SUMMARY: The U.S. Supreme
Court (news - web sites) declined on Monday to review
the case of Calvin
Jerold Burdine, a gay man on Texas's death row who will now be
retried because his
lawyer napped through parts of his 1984 trial.
The U.S. Supreme Court declined on Monday to review the case of Calvin Jerold Burdine, a gay man on Texas's death row who will now be retried because his lawyer napped through parts of his 1984 trial.
The justices' decision comes just days after the high court reversed a similar opinion out of the 6th Circuit, leaving the question of what constitutes "effective counsel" somewhat uncertain.
In 1984, the Supreme Court issued two major opinions on the constitutional standards of legal representation, both on the same day. Last Friday, using the tougher of the two standards, the 8-1 Supreme Court ruling reversed the 6th Circuit in the case of a Tennessee man whose lawyer was mentally ill, erratic, and failed to offer closing arguments during sentencing. That man, Gary Cone, will now return to death row and wait for execution.
In the Texas case, Burdine was granted a new trial last August by the U.S. Court of Appeals for the 5th Circuit after several appeals.
The 5th Circuit used the simpler standard, however, and the Supreme Court's action suggests that the standard of a lawyer, "who entirely fails to subject the prosecution's case to meaningful adversarial testing," was correctly applied this time.
According to the clerk at Burdine's 1984 trial, defense lawyer Joe Cannon slept for "long periods of time" during the questioning of witnesses, and fell asleep on one occasion for "at least ten minutes."
Burdine, who was convicted of killing his gay lover in 1983, will now be tried again. In his first trial, the prosecution told the jury that life in prison "isn't a very bad punishment for a homosexual," urging them to condemn him to death. According to the American Civil Liberties Union (news - web sites), Burdine's lawyer used words like "fairy" and "faggot," and the trial judge allowed evidence of a previous sodomy conviction to be thrown into the mix. Burdine has since claimed that his co-defendant was the actual killer.
In appealing the 5th Circuit's decision, the attorney general of Texas, John Cornyn, warned that the ruling would "invite countless ineffective assistance of counsel claims based on any type of intermittent 'unconsciousness' by counsel during trial."
"The state of Texas went all the way to the Supreme Court to say that a sleeping lawyer was good enough," said Diann Rust-Tierney, director of the ACLU's Capital Punishment Project.
"We are pleased that
the court declined to intervene in this case," Rust-Tierney continued.
"The court's refusal to hear this case is both an acknowledgement and a
reminder that the death penalty system is rife with problems."
WASHINGTON (Reuters)
- The U.S. Supreme Court (news - web sites) on Monday rejected an
appeal by Texas, which
wanted to execute a death row inmate even though his lawyer slept repeatedly
during his 1984 murder
trial in Houston.
The justices let stand
a U.S. appeals court ruling that Calvin Burdine deserved a new trial because
his
lawyer dozed off frequently
enough and for long enough stretches to deprive him of his constitutional
right to effective
legal assistance.
The high court's action
came without any comment or dissent, clearing the way for Burdine, 48,
to get
a new trial unless
prosecutors decide to drop the case.
Texas wanted to carry
out the execution. Even though the court-appointed lawyer was "repeatedly
unconscious" during
the trial, Texas argued it did not affect the outcome, which ended with
Burdine
being found guilty
and sentenced to die for fatally stabbing his gay lover.
According to later
testimony from jurors and court officials, the now-dead lawyer, Joe Cannon,
slept
as many as 10 times,
for as long as 10 minutes, during the six-day trial.
Defense lawyers said
Cannon slept during a critical part of the case when the prosecutor questioned
witnesses and presented
evidence.
Texas argued that the
performance of a sleeping lawyer should be judged like those of drunk,
drugged
or mentally ill attorneys.
In those cases, a defendant must prove the lawyer's behavior would have
affected the outcome.
"The decision in Burdine
illogically segregates attorney sleeping from other ... impairments that
have
indistinguishable
effects on an attorney's ability to function during trial," Texas Solicitor
General Julie
Parsley said in the
Supreme Court appeal.
She said harm should
not be presumed just because the lawyer "intermittently dozed and actually
fell
asleep."
Parsley said the appeals
court was wrong to equate sleeping with temporary absences from trial,
which
automatically result
in reversal of a conviction. Other appeals courts analyze whether such
absences
amount to a "harmless
error," she said.
Parsley predicted the
appeals court decision "will invite countless ineffective assistance (of
counsel)
claims based on any
type of intermittent 'unconsciousness' by counsel during trial."
The New Orleans-based
appeals court ruled that a sleeping lawyer can exercise no judgement
whatsoever, while
drunk, drugged or mentally ill lawyers can at least exercise impaired judgement.
Robert McGlasson, who
represents Burdine, called the claims by Texas of conflicting appeals court
rulings on the issue
baseless.
"The decision below
is a case-specific, fact-based ruling on a point of such exceeding rarity
that the
federal courts have
seen its like exactly three times since the mid-1980s," he told the justices
in urging
them to reject the
state's appeal.
Burdine was sentenced
to die for stabbing to death W.T. "Dub" Wise in 1983 at the trailer home
the
two shared in Houston.
Burdine said he was angry because Wise had asked him to prostitute himself
to
earn more money.
A federal judge granted
Burdine a new trial, based on Cannon's sleeping, but he also said Cannon
referred to his client
with gay slurs.
A three-judge panel
of the appeals court ruled that a sleeping lawyer could provide effective
counsel
by not dozing during
important parts of the trial. But the full appeals court, by a 9-5 vote,
ruled for
Burdine, deciding
his trial was fundamentally unfair.
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