'Sleeping attorney' case isn't what it seems

'Sleeping attorney' case isn't what it seems

Austin American Statesman

by Dudley Sharp

The headlines proclaim that defense attorney Joe Cannon slept through significant portions of his client's, Calvin Burdine's, death penalty trial.

But did he?

Why did it take 11 years to bring this claim forward? Why did Calvine Burdine not make a sworn statement that he observed his own defense attorney sleeping? And why did Burdine hire that very same attorney for his direct appeal after he received a death sentence?

Why did the state argue that the attorney was sleeping, but that there was not sufficient error to overturn the case? Because law requires that both the superior appellate courts and the state accept the federal district court's finding of fact that Cannon was asleep, even if they do not believe he was.

There is often much more to the story than what appears in the headlines and this is no different.

On June 3 (2002), the Supreme Court of the United States refused to hear this case, meaning that the 5th Circuit Court of Appeals' 9-5 decision to overturn the case stands.

A three-judge panel within the 5th U.S. Circuit Court of Appeals first heard Burdine's appeal. 

Quoted below is the 2-judge majority opinion. Following each quote is (my) response.

"Burdine was represented at trial -- and, at his request, on direct appeal -- by court-appointed counsel, Joe Cannon. . . . Burdine filed a second state habeas application later that month, nearly 11 years after trial, claiming for the first time denial of assistance of counsel because Cannon repeatedly dozed and/or slept at trial."

Why wait 11 years to file such a claim? Why wait one minute? Why hire your sleeping trial attorney to be your appellate attorney after said sleeping attorney got you a death sentence?

" . . . the claim was not raised until over 10 years after trial, after it was first raised by another death row inmate."

It appears that Burdine and his attorneys may not have gotten the idea about the sleeping lawyer claim until after another inmate came up with it. Just a coincidence?

" . . . we (the Fifth Circuit) are bound by the state habeas court's finding that Cannon slept during trial, even though (Cannon) testified at the state habeas evidentiary hearing that he had not slept; that, instead, he often kept his eyes closed and might nod his head while thinking or concentrating, and that it was possible for someone observing him to think he was sleeping."

Cannon gives a plausible explanation for his perceived sleeping and such would explain why many did not observe Cannon sleeping. The attorney had a history of closing his eyes, often, which many knew about.

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EDIT

The prosecutor, the trial judge and two jurors testified, during the hearing, that they never saw Cannon sleeping.

Two jurors stated that they observed Cannon sleeping.

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Not even Burdine, who sat right next to Cannon throughout the trial, ever made a sworn claim to have observed his own attorney sleeping.

" . . . we (the Fifth Circuit) are troubled, to say the least, by wide-ranging abuses that can result where, as here, a criminal defendant sits next to counsel during trial; makes no mention then of counsel sleeping during trial; requests that the same counsel represent him on direct appeal; and then, over 10 years after trial, claims ineffective assistance because counsel slept during trial, despite defendant never, by affidavit or testimony, stating under oath that counsel engaged in such conduct."

Three possibilities exist.

One, Burdine never observed Cannon sleeping and simply made the issue up because another inmate raised such on appeal.

Two, Burdine did observe Cannon sleeping and decided that a sleeping attorney at trial and using that same lawyer on appeal was the best way to prolong his life by later using such as an appellate issue later.

Three, Burdine didn't mind that he received the death penalty while his attorney slept through significant portions of the trial -- he liked his sleeping lawyer so much that he hired him for his appeal.

Also, the two judges on the panel reviewed the trial transcript during the alleged periods of sleeping. They found no reversible error where Cannon failed to object to testimony or the state's presentation.

If Cannon slept through significant portions of Burdine's trial, should the case have been overturned? The 5th Circuit Court of Appeals answered that question "Yes," and the Supreme Court accepted it. But, did Cannon sleep through significant portions, or any portion, of the trial?

Remember, the court had to accept that Cannon was sleeping, after the state habeas court's finding, even if it disagreed with the ruling. So all the state's arguments had to be based upon challenging the overturning of the case because Cannon slept, even if the state didn't believe that he had.