By HENRY WEINSTEIN , LA Times Legal Affairs Writer

                A defendant in a capital murder trial does not have an absolute constitutional right to have an attorney
           who stays awake for the entire trial, a sharply divided federal appeals panel in New Orleans ruled
           Friday.
                The ruling came in the case of Calvin J. Burdine, whose death sentence for a 1983 murder in Texas
           drew considerable--and unfavorable--attention to that state’s death penalty system.
                During Burdine’s trial, his court-appointed lawyer, Joe Frank Cannon, frequently fell asleep,
           according to jurors and the court clerk. Last year, a federal district judge in Houston ordered a new trial
           for Burdine, saying that "a sleeping counsel is equivalent to no counsel at all."
                But by a 2-1 majority, a panel of the U.S. 5th Circuit Court of Appeals disagreed. The judges were
           not "condoning sleeping by defense counsel during a capital murder trial," Judges Rhesa H. Barksdale
           and Edith H. Jones wrote in their ruling. But from the trial record, "it is impossible to determine--instead,
           only to speculate--that counsel’s sleeping" actually hurt Burdine’s case, the majority said.
                Jones, who was appointed to the appeals court by President Ronald Reagan, has been widely touted
           as a possible Supreme Court nominee if Texas Gov. George W. Bush wins the presidential election.
           Barksdale was appointed by Bush’s father when he was president.
                The Texas attorney general’s office, which had brought the case to the appeals court, applauded the
           ruling. "Today’s decision confirms that a jury’s verdict will not be overturned unless and until the
           defendant proves that actual harm occurred as a result of his attorney’s conduct at trial," said
           spokeswoman Heather Browne.
                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."
                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.
                "I am confident that, on fuller review, a higher court will agree with me that justice asleep is justice
           denied," McGlasson said.
                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 Burdine case came to national attention during the presidential primaries last spring when Bush
           was asked about "sleeping lawyers" in Texas death penalty cases. Bush said the fact that Burdine’s
           guilty verdict and death sentence had been blocked showed that "the system worked." He did not
           mention that the state had already appealed that reversal.
                Mike Jones, a Bush spokesman in Austin, said the governor’s office had not seen the decision and
           would have no immediate comment.
                Friday’s decision arose from a trial in which Burdine was convicted of murdering his former
           roommate, W.T. Wise. The body, found in the bedroom of a trailer, had two stab wounds in the back and
           the hands were tied with a cord. Burdine conceded long ago that he and a friend went to rob Wise, with
           whom Burdine had had a sexual relationship. But Burdine denies participating in the killing. His
           co-defendant, Dennis McCreight, pleaded guilty to a lesser charge and was paroled after eight years,
           even though evidence introduced at Burdine’s trial pointed to McCreight as the principal perpetrator.
                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.
                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.
                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 appeals court majority disagreed. "Prejudice cannot be presumed," the two judges wrote, noting
           that in past cases verdicts had been upheld even though the lawyers had been drunk or impaired in some
           other way.
                The judges acknowledged that the trial transcript shows Cannon said nothing as the prosecutors
           cross-examined his client--a tough grilling that ran to 72 pages of transcript. The cross-examination
           included a question about whether Burdine preferred to be the "man or the woman" during a homosexual
           act, a question that Burdine’s new lawyer said during the appeals court’s hearing "was irrelevant, clearly
           prejudicial and clearly the [potential] subject of an objection."
                But Barksdale and Jones said it was possible that Cannon had decided not to raise any objections as
           part of a defense strategy.
                Benavides sharply disagreed. Cannon’s limited participation in the trial "demonstrate a denial [of
           counsel] of such significance that the adversary process was rendered unreliable."
                At a hearing in 1995, Cannon denied that he had been sleeping at all. Rather, Cannon said, he was
           concentrating, with his eyes closed.
                In earlier testimony, however, the clerk of the court that handled Burdine’s trial, Rose Marie Berry,
           said that in one instance Cannon’s head was tilted downward and he was asleep "for about 10 minutes .
           . . at least 10 minutes." There were "lots of incidents" when Cannon dozed off for shorter periods, she
           said. Three jurors in Burdine’s case also testified that they had seen Cannon sleeping during the trial.
                Cannon, who is now dead, slept during the trial of another defendant, who has already been executed,
           according to appellate court records. In total, Cannon had 10 clients wind up on death row in Texas--the
           second highest number of any defense lawyer in the state.
                Another inmate currently on death row in Texas, George McFarland, has an appeal pending in Texas
           state courts, contending that he was denied due process of law because his lead lawyer slept through
           significant portions of his case.
                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.

           Copyright 2000 Los Angeles Times