- The Washington Times - Tuesday, June 4, 2002

The Supreme Court refused yesterday to block the retrial of Texas death-row inmate after his lawyer slept through critical parts of the case.
The court's refusal to hear the state appeal means Calvin J. Burdine must be freed or a new trial begun within 120 days for first-degree murder, 19 years after his live-in homosexual lover W.T. "Dub" Wise was stabbed to death during a robbery at their Houston trailer.
"We will retry him, and it shouldn't be any problem. He gave a confession in this case," said Asst. Harris County District Attorney Roe Wilson. "We've got videotapes of him using the man's ATM card after the murder, and he pawned his stuff."
The court's decision sets up a horror story which death-penalty opponents will use to attack the quality of defense in life-and-death cases.
"The idea that a sleeping attorney could be competent counsel in a capital case should have been a punchline, not a headline," Sue Gunawardena-Vaughn, who heads Amnesty International's program to abolish U.S. death penalties, said yesterday.
At one point, a U.S. 5th Circuit Court of Appeals panel declared 2-1 that a sleeping lawyer can give the effective counsel required by the Constitution so long as he is awake during crucial aspects of the trial. The panel said crucial aspects did not necessarily include "taking of evidence" during interludes in which lawyer Joe F. Cannon was asleep.
The full 5th Circuit refused to let that stand, deciding Mr. Burdine's defense was jeopardized because the defense lawyer dozed repeatedly for up to 10 minutes at a time during a jury trial that lasted less than 13 hours.
"An unconscious attorney does not, indeed cannot, perform at all. This fact distinguishes the sleeping lawyer from the drunk or drugged one," the appeals court ruled last summer.
"Even the intoxicated attorney exercises judgment, though perhaps impaired, on behalf of his client at all times during a trial," the court said.
However, the decision in Mr. Burdine's case is limited to "egregious facts" of repeated slumber, the 5th Circuit said, to explain why it did not declare that any nap by a defense lawyer would require a new trial.
The American Civil Liberties Union blamed the conviction in part on homophobia.
"Life-or-death decisions should not hinge on whether someone is rich or poor, black or white or gay or straight. That's what happened in this case, and it happens in countless others," said Diann Rust-Tierney, who heads the ACLU Capital Punishment Project.
Supreme Court refusal to hear the Texas appeal, issued without comment, does not extend the appeals court ruling beyond Texas, Louisiana and Mississippi.
After Mr. Burdine confessed to the killing in 1983 he claimed another man, Douglas McCreight, killed Mr. Wise while Mr. Burdine tried to stop him. McCreight, 17 at the time, got 40 years in prison.
Among those who testified that Mr. Cannon slept during the trial was jury foreman Daniel Strickland. Mr. Cannon denied that to his death and was backed in his stance by trial judge Joseph Guarino, prosecutor Ned Morris and juror Carolyn Bonnin.
In other actions yesterday, the justices:
Agreed to clarify next term when police can be sued over accusations of civil-rights violations during questioning of suspects. The case to be heard involves Oxnard, Calif., Officer Ben Chavez, who ignored doctors' objections to question seriously wounded farm worker Oliverio Martinez in a hospital emergency room but never charged him with a crime.
Ruled 9-0 in Holmes Group v. Vornado Air Circulation Systems that the Federal Circuit may not invoke its patent jurisdiction solely for issues raised in a counterclaim to a lawsuit that did not raise patent review. The court vacated a Federal Circuit ruling and ordered the appeal reheard instead by the 11th Circuit in Atlanta.
Decided to revisit limits on punitive damages, agreeing to review a $145 million award against State Farm Mutual Automobile Insurance Co. upheld by a Utah court on grounds that State Farm launched a "malicious, reprehensible and wrong" campaign to restrict payments.


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