Supreme Court rejects Texas appeal

By Anne Gearan, Associated Press, 06/03/02

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WASHINGTON -- A Texas Death Row inmate whose lawyer slept for long portions of his murder trial will either win freedom or a new trial, after the Supreme Court refused to intervene Monday.

The high court rejected an appeal from Texas authorities, who argued that the lawyer's inattention did not necessarily equal an unfair trial.

The Supreme Court's action means that Texas must choose whether to retry Calvin Jerold Burdine or set him free.

Burdine was convicted of stabbing to death his gay lover, W.T. Wise, at the Houston trailer they shared in 1983. Burdine confessed to police, but now denies killing Wise. He claims an accomplice actually killed Wise, while Burdine tried to talk him out of it.

Jurors and a court clerk later described how court-appointed lawyer Joe Cannon slept for up to 10 minutes at a time during the 1984 trial, and the separate sentencing phase that followed. Burdine was sentenced to death.

Burdine came within moments of execution in 1987 before receiving a court-ordered reprieve.

Cannon, who has since died, denied falling asleep.

Burdine lost several rounds of appeals before a federal court agreed that Cannon's performance violated Burdine's constitutional right to an effective lawyer. A federal appeals court panel first reversed that finding in a highly criticized ruling in 2000. The full appeals court then agreed to hear the case, and agreed with the first court that Burdine did not get a fair chance to defend himself.

Texas' appeal to the Supreme Court claimed that the ruling by the 5th U.S. Circuit Court of Appeals creates a conflict among federal appeals courts about what constitutes unacceptable lawyer conduct.

The Supreme Court sat on the case for months, apparently because it had agreed to hear a case that raised similar issues about the right of appeal when a death row inmate claims his lawyer was inadequate.

Last week, the court ruled against the Tennessee inmate involved in the other case. The court majority found his lawyer's performance was not bad enough to justify an exception to strict rules intended to shorten death row appeals.

It was not clear Monday why the court acted as it did in Burdine's case. Instead of sending the case back to the appeals court for reconsideration in light of the Tennessee case, the high court rejected Texas' appeal outright.

The Supreme Court has not yet taken a case that asks the broader question of what to do about underprepared or overworked death penalty lawyers. Away from the court, two justices have expressed strong reservations about the quality of legal help that some inmates receive.

The case is Cockrell v. Burdine, 01-495.