- The Washington Times - Tuesday, November 7, 2000

Charles Dickens would have added this case to "Bleak House" if his considerable imagination were even more high powered.
On Oct. 27, in Burdine vs. Johnson, a divided 2-1 panel of the U.S. 5th Circuit Court of Appeals refused to disturb a Texas death sentence despite periodic napping by court-appointed defense counsel during the trial at which his client's life was at stake. Can you imagine any of O.J. Simpson's celebrity attorneys slumbering during his double murder prosecution? Shouldn't the law, in its majestic equality, forbid defense counsel for both the rich as well as the poor, from sleeping in capital cases?
Calvin Jerold Burdine looked death in the face in a Texas courtroom without the legal braininess that money can buy. His indigence entitled him to court-appointed counsel, Joe Cannon. The jury returned a guilty verdict and sentenced Burdine to death.
After futile post-verdict legal skirmishing in state courts, the death-row inmate challenged the constitutionality of his conviction in federal court because defense counsel, Mr. Cannon, slept when he should have been riveted on discovering weaknesses in the prosecution's case. The Sixth Amendment, by dint of U.S. Supreme Court rulings in Gideon vs. Wainwright(1963) and Argersinger va. Hamlin (1972), guarantees a right to "effective assistance" by defense counsel in all criminal cases where life or liberty are at stake, even for the most downtrodden. The chief purpose is to avoid convicting the innocent, a genuine risk if an unschooled defendant were left to fend for himself. As the Supreme Court elaborated in Powell vs. Alabama (1932): "Even the intelligent and educated layman has small and sometimes no skill in the law… . He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted on incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible… . He requires the guiding hand of counsel at every step of the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence."
The Powell decision also worried over a dual system of justice one for the rich and one for the poor at least in death penalty cases where the moral urgency of equal justice under law is most compelling. Thus, in holding that indigents are constitutionally entitled to court-appointed defense attorneys when their lives are in jeopardy, the high court underscored that government could not prevent deep-pocket defendants from purchasing that significant legal shield in criminal cases.
Since Powell, the court has further augmented a money-blind system of criminal justice between the rich and poor. Defense counsel must be provided to the indigent at the first stage of their appeals. The state must shoulder the cost of providing transcripts for needed for meaningful appellate review. And the state is prohibited from imprisoning an indigent for nonpayment of a criminal fine, a punishment that a well-endowed defendant would never confront. The equal protection clause of the Fourteenth Amendment, said the court in Tate vs. Short (1971), does not permit government to punish with fines "if one is able to pay it, yet convert the fine into a prison term for an indigent defendant without the means to pay his fine."
These decisions respond to the maxim that justice requires the appearance of justice, and that substantial criminal justice discrepancies between deep-pocket and empty-pocket defendants fails that constitutional benchmark. And that is largely why Burdine is misconceived.
Texas did not dispute the scandalous evidence of Mr. Cannon's indifference to his constitutional defense duty. The jury foreman testified that on from 2-5 occasions, defense counsel had dozed or briefly nodded off during the guilt-innocence phase of the trial when evidence was taken, including witness testimony. Another juror recalled that Cannon repeatedly fell asleep during "quite a bit" of the guilt-innocence phase. And yet another testified that on 5-10 occasions Mr. Cannon nodded or dozed. In one instance, for at least 10 minutes, his eyes were closed and his head bowed.
Finally, a court clerk recollected that Mr. Cannon slept "a lot" and "for long periods of time" during the questioning of witnesses, the longest at least 10 minutes.
The Burdine panel majority conceded that Mr. Cannon's repeated trials lumbers violated Mr. Burdine's Sixth Amendment right to effective assistance. To justify a new trial under the Supreme Court's Strickland vs. Washington (1984) precedent, however, an inmate also must demonstrate that the constitutional deficiency casts a serious question over the reliability of the verdict or sentence. But the Strickland Court also advised that prejudice to the defendant should ordinarily be presumed if counsel was physically or mentally absent during a critical phase of the criminal trial.
Speaking through 5th Circuit Judge Rhesa Hawkins Barkdale, the Burdine majority ignored that Supreme Court advice. It was said Mr. Cannon's sleeping could not have been prevented by Texas because it escaped the notice of both the prosecution and trial judge. But there would have been no risk of trial napping if Texas had ensured through credentialing the appointment by the state of competent and conscious defense attorneys in capital prosecutions, a light burden to shoulder.
Judge Barksdale next insisted that a high certainty of prejudice was unknowable because the trial transcript failed to show Mr. Cannon's slumbers had occurred during the presentation of devastating evidence against his client. But lawyers for the rich would never contemplate even momentary dozing during a trial because any evidence submitted by the prosecution is potentially vulnerable to attack. Thus, Burdine should have presumed prejudice, and placed the burden of proving otherwise on Texas. That conclusion is especially powerful in capital cases like Mr. Burdine's where the idea of discrepant systems of justice for the rich and poor are instinctively repugnant.
It is one thing to recognize that inescapable disparities in private wealth and limited government budgets mean more justice for the affluent than for the underclass in civil and routine criminal cases because only the former can afford legal genius. When life is at stake, however, shouldn't the state be constitutionally obligated to take reasonable measures to close the gap in legal talent?

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