THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
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MANDY WELCH, FORMER ATTORNEY FOR CALVIN BURDINE: It was, in effect, no representation. I mean, any time you have someone who's sleeping -- a lawyer who's sleeping through a trial is not representing a person at the most important time in their life.
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JOHN HOLMES, HARRIS COUNTY DISTRICT ATTORNEY: It is not sufficient to say, no, he just dozed off at one portion of the trial that he had ineffective assistance of council. Not because I say so, but because that's the stand the Fifth Circuit has applied in prior cases.
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ROGER COSSACK, CO-HOST: Today on BURDEN OF PROOF: It's not the dream team most defendants wish for. How a sleeping lawyer has caused a retrial of a murder case in Texas.
ANNOUNCER: This is BURDEN OF PROOF, with Roger Cossack and Greta Van Susteren.
COSSACK: Hello, and welcome to BURDEN OF PROOF.
Calvin Burdine was convicted and sentenced to death for a murder in the killing of his roommate in 1983. After years of appeals and coming within hours of execution, a Texas trial court of appeals found that Burdine's court-appointed attorney slept through large portions of his trial.
GRETA VAN SUSTEREN, CO-HOST: In 1995 in a state court proceeding, the conviction and death sentence were vacated. But last year in a federal court of appeals, two judges reinstated the conviction and the death sentence and cleared the way for his execution. They said Burdine failed to show his sleeping lawyer affected the outcome of his trial. But on Monday, in another turnaround, the full federal court of appeals reversed the three-judge panel, setting the stage for a potential retrial.
COSSACK: So joining us today to talk about these unusual circumstances, from Atlanta, Robert McGlasson, Calvin Burdine's attorney. From New York, George Kendall, senior attorney for the NAACP Legal Defense Fund.
VAN SUSTEREN: From Houston, assistant district attorney for Harris County, Roe Wilson. Here in Washington, Andrew Zimmermann (ph), Cathy Peterson (ph) and Jordan Connors (ph).
Robert, first to you since you are the appellate counsel that has now gotten the reversal. Is there any dispute that Mr. Burdine's lawyer slept through portions of his trial and what was the evidence of the sleeping?
ROBERT MCGLASSON, ATTORNEY FOR CALVIN BURDINE: Yes, sure, Greta. There is no dispute. The state of Texas has conceded that Joe Cannon slept repeatedly through the trial. The state court judge found that he slept on numerous occasions while the government was presenting its case against the only defendant in the courtroom, Calvin Burdine. He slept for periods of up to 10 minutes or more and...
VAN SUSTEREN: You mean at a given time at a 10-minute stretch, is that what you mean,...
VAN SUSTEREN: ... or a total 10 minutes?
MCGLASSON: No, different periods for 10 minutes or more. The clerk of the court who testified that she sat 10 feet away from him looking straight at him throughout the entire trial saw him sleeping repeatedly lots of instances, was one phrase that she used, and that he slept at times for up to 10 minutes or more. A juror testified to the same fact, and two or three other jurors saw repeated sleeping as well. The state of Texas conceded in the federal district court these facts so there's no dispute about the facts of sleeping. This wasn't dozing and it wasn't napping. This wasn't nodding off. This was sleeping to the point of unconsciousness, repeatedly, in a trial that only lasted total time in front of the jury 12 hours and 51 minutes.
COSSACK: Robert, one of the arguments that was brought up in this case was that Mr. Burdine failed to bring up the issue of sleeping when he first began his series of appeals. In fact, I have to say this, well, the argument would be that he slept on his rights.
MCGLASSON: Yeah, the court of appeals actually used that phrase in their opinion, that he was responsible for raising this issue at trial and on direct appeal. Of course we argued in our pleadings to the court, and we were vindicated two days ago, that this turns the right to counsel on its head. A defendant is not responsible for knowing how to assert their rights, when to assert them, et cetera, that's the point of the role of counsel.
VAN SUSTEREN: You know what, I've got to -- I've got to hear -- and, Roger, as you asked the question and after I read the opinion, when, Robert, what I hear you answer, it makes my blood boil that a United States Court of Appeals or any court would ever think a defendant has the responsibility to tell his lawyer how to -- I mean to stay awake. And the whole idea that he didn't raise it earlier that he had a sleeping lawyer, he's an indigent defendant, probably doesn't understand much of what's going on at a trial, and for a court even to be -- even to say that, to me, is outrageous.
COSSACK: Well, let me -- let me -- let me just respond. I'm not -- first of all, before I get in the middle of this one, I'm not here to tell you this is a great idea to have a defense lawyer sleeping in the trial. And I believe personally that if you have a lawyer that sleeps in the trial, you don't have a trial. But the argument...
VAN SUSTEREN: You don't have a lawyer...
COSSACK: You don't have a trial or a lawyer.
VAN SUSTEREN: ... or a trial.
COSSACK: But the argument was, as I understand it, was that they said, look, this guy tried to wake up his lawyer a couple of times -- Burdine tried to wake up his lawyer a couple of times and, therefore, knew his lawyer was sleeping.
VAN SUSTEREN: But wait a second, let me stop you there. Let me ask Robert. Robert, I mean it's bad enough -- I mean if for the -- for the court of appeals to be concerned with whether or not the defendant woke his lawyer, what in the world was the prosecutor doing during the trial when the lawyer was sleeping, the judge doing during the trial while the lawyer is sleeping...
VAN SUSTEREN: ... and each member of the jury and the clerk of courts as the lawyer was sleeping during a capital case?
MCGLASSON: Well, a couple of things. One, the judge said he didn't see it at all. He also testified that most of the time through the trial his attention was focused in the opposite direction where the witnesses were testifying. On the prosecutor, it's conflicting evidence. He told the clerk of court, who testified during the trial, that he was watching Cannon sleep. And he said something to her, something like get a load of Cannon sleeping through this trial. We've got to stop having him appointed. But when he got on the stand in the '95 hearing, he denied that he'd seen (UNINTELLIGIBLE) sleeping at all (UNINTELLIGIBLE). Again, he also said at that hearing, like the judge, that his attention was focused at the opposite side of the courtroom.
VAN SUSTEREN: And you know what, I don't buy that. Having tried cases, you're watching everything in the courtroom all the time, and if he's sleeping that much, I don't buy that the judge didn't see it or the prosecutor. I think they're covering themselves. What about the jury, did they see -- did they testify they saw a sleeping lawyer?
MCGLASSON: Yes, the foreman of the jury and three other members of the jury testified that they saw the sleeping and they all saw it different times repeatedly. I think one of the things we've got to remember here, though, and we're not -- there is no dispute about this, and that is that he was sleeping to the point of unconsciousness. And it -- and the findings were that it was while the government was presenting its case, while they were examining witnesses, making arguments and talking to the judge and so forth. So this is a time, obviously, when the defense lawyer's alertness and so forth was critical and there's no dispute about that fact that the government was presenting its case. He had only one lawyer, there was only one defendant, everything in the -- going on in that courtroom was presumptively relevant, indeed probably prejudicial to Mr. Burdine, and therefore, requiring the close attention and alertness of the defense counsel.
COSSACK: So, Robert, and I had the opportunity to read this opinion and I agree with you that's exactly what the findings of the -- of the court was. But tell us what the problem was here in terms of -- I mean this seems like a slam-dunk if you have a lawyer who's representing you who's sleeping through the trial. As I said earlier, you don't have a lawyer and you don't have a trial. Why was there such a problem? What did the defense (sic) say, that this shouldn't automatically be reversed or remanded or changed in some way?
MCGLASSON: Well, I can't -- I can't speak for anybody else. All I can say is thank goodness today or two days ago common sense prevailed and the court agreed with what we've been saying for years now, and that is the basic truth, that a sleeping lawyer is the equivalent of no lawyer and that any death penalty trial conducted under these circumstances clearly violates any notion of fairness and fair play.
VAN SUSTEREN: And I've got to tell you it's -- I mean, the fact that the lawyer was sleeping has almost even made more evident about the fact that this lawyer let a death penalty trial take 12 hours and 51 minutes to sentence someone to death. I mean that is extraordinary that a trial has only that amount of evidence that'll -- I mean a lawyer's got to be asleep to let that happen because even in cross- examination you extend it farther.
COSSACK: Go ahead, Robert.
MCGLASSON: That's true, isn't it? Yes, I was going to say, and there were a number of other aspects of Joe Cannon's representation where there's absolutely atrocious. For example, allowing the prosecutor to argue to the jury at sentencing that it wouldn't be a, you know, deserved punishment for Calvin Burdine to be sentenced to death -- he happened to be homosexual -- because putting a -- putting a gay man in a prison with all men would be not much punishment at all. Joe Cannon heard or Joe Cannon sat through that argument silent. We've speculated that he either was sleeping or had no concept of the -- of the fundamental, you know, nature of such an outrageous prosecutorial argument.
VAN SUSTEREN: And of course the issue isn't whether or not there should be a death penalty, it isn't a question of whether or not the man is guilty and should be punished, the question is whether or not we give the man a fair trial as the Constitution demands.
But, Robert McGlasson, thank you for joining us today from Atlanta.
MCGLASSON: Sure. You're welcome.
VAN SUSTEREN: Up next...
VAN SUSTEREN: Up next: Could this case be headed to the United States Supreme Court? Don't go away.
LEGAL BRIEF: Lawyer Jan Schlichtmann, whose story was portrayed in "A Civil Action," is now fighting for the rights and protections of the bankruptcy act. Schlichtmann is appealing a court decision that said he has to pay a debt that was incurred prior to his declaring bankruptcy.
VAN SUSTEREN: On Monday, the United States Court of Appeals for the Fifth Circuit blocked Texas from executing a man whose lawyer slept through portions of his murder trial. Death row inmate Calvin Burdine could receive a retrial. The state of Texas has 90 days to determine if it will ask the United States Supreme Court to take this case.
Roe, first to you. I'm curious, number one, whether you think the state of Texas will take this one step further to the United States Supreme Court, number one? And number two, with your long history supervising death penalty litigation in Texas, would you recommend that the case be taken to the United States Supreme Court?
ROE WILSON, ASSISTANT D.A. HARRIS COUNTY TEXAS: Well, you first of all have to understand that it's going to be the decision of the attorney general's office in Texas, because once a case is in federal habeas, it's really up to the A.G. to decide whether to take it to the Supreme Court. Personally, after reading the opinion in the case, I think it should be taken to the Supreme Court. I think the -- one of the dissents made a very good point and that is bad facts make bad law, and I think that's what happened in this case. I am certainly not defending anyone sleeping during a trial, be that the defense attorney, the judge, the jurors or the prosecutors. No one in their right mind would say that's something that should be happening.
VAN SUSTEREN: But let me ask you something, I mean I know that dissent said in the case is that the question was whether or not the sleeping affected the outcome of the case applying a Supreme Court case as the standard. But do you believe anyone even has a lawyer -- the basic, has a lawyer if during a capital murder trial the lawyer is sleeping?
WILSON: Well, I think you have to do what the Supreme Court said years ago in Stickland v. Washington and that is if you're going to try to determine if someone had ineffective assistance of counsel, you have to, first of all, find out did they make a mistake. And if they made a mistake...
VAN SUSTEREN: Do you think sleeping is a mistake?
WILSON: Well, certainly it is. I mean that's a given.
VAN SUSTEREN: You don't think it's something worse than that?
WILSON: I'm sure we could sit here and think of all kinds of things that are horrible to occur in murder trials that we wouldn't want them to occur. But let's go back just a moment to some of the things that Mr. McGlasson was saying that I'd like to respond to. First of all, he was saying, well, there's no dispute that he was sleeping. And that's kind of a disingenuous view of what's occurred in this case over the years because...
VAN SUSTEREN: Well, wait a second, let me -- let me quote to you from the United States Supreme Court because the United States Supreme Court for the Fifth Circuit 9-5 decision. They don't seem to have any dispute that there was sleeping. What's -- is the court of appeals now wrong -- that he was not sleeping?
WILSON: Well, first of all, you said the United States Supreme Court, Greta, it wasn't...
VAN SUSTEREN: United States Court of Appeals.
WILSON: Yes, you did. It was the Fifth Circuit Court of Appeals.
VAN SUSTEREN: Right.
WILSON: No, what happened is there was an evidentiary hearing in 1995 and there were several witnesses presented. And the judge who presided over the trial testified that he did not see Joe Cannon sleeping, and that if he had, he would have stopped the trial and done something about it.
VAN SUSTEREN: OK. Let me read -- let me read then right from the decision from the United States Court of Appeals on Monday. It says it talks about three jurors and the clerk of the court. It says these four neutral witnesses, which the state habeas court found highly credible, testified that Cannon repeatedly dozed or slept as the state questioned witnesses and presented evidence supporting its case against Burdine. Do you disagree with the United States Court of Appeals for the Fifth Circuit on this?
WILSON: I am not -- I am not disagreeing that those witnesses testified. What I'm trying to tell you is that there were other witnesses. For example, there was a juror who testified and the juror testified that she never saw that occur. But let's get beyond the emotionalism of the issue for just a moment.
VAN SUSTEREN: That's not emotional. No, wait a second, that is not emotionalism. This is the -- this is a constitutional issue. The Constitution says plain and simple right to counsel. And the United States Court of Appeals Fifth Circuit's dissent can try to use a legal technicality and try to make this look like something much different. But the fact is, is that witnesses said this man's lawyer in a 12-hour and 51 minute capital murder trial, which he is sentenced to death, slept. And this dissent is trying to say, well, that's OK because he didn't show it mattered.
WILSON: No, I don't think that's what the dissent is trying to say at all. I don't think anyone is trying to say that it's OK that someone sleeps during a capital murder trial. I think, though, what you have to look at is when did this occur and what was going on and this is what a Strickland Standard does is what is the -- what is occurring at this time period. What the Fifth Circuit did is that they decided to adopt a presumption of harm as opposed to the standard which is used in Strickland.
VAN SUSTEREN: I've got to tell you, you're the first person I've ever met, I've got to tell you, who thinks that a sleeping lawyer can be sort of reduced to that term besides the five -- I've never met the five judges on the United States Court of Appeals -- but I find it extraordinary that someone can defend a sleeping lawyer when the penalty is death, I've got to tell you.
WILSON: I am not defending the sleeping lawyer. You're taking what I'm saying and you're twisting it the way you want to twist it. I am not defending the fact that anyone slept. What I'm trying to talk about are the specific facts of this particular case, just like Mr. McGlasson was allowed to do that. I think if you will examine this, one of the things that you had said is that you couldn't understand that it took 12 hours as far as the time period. But there are many capital cases actually that don't take as long to try because you have to look at what the facts of the case are. In this case, there was a confession that Mr. Burdine had given prior to trial, which was introduced.
VAN SUSTEREN: Which has been challenged. Which is under challenge.
WILSON: It was challenged, and it was also considered admissible and voluntary, and it was admitted. And there has been no court that has ever said there was anything wrong with the confession.
He also testified at trial and he admitted his participation in the offense. The only thing that he changed at trial is he said: Well, we didn't both stab him. My accomplice stabbed him while I was stealing his belongings and piling them in the door to, you know, so that we could steal them.
VAN SUSTEREN: Let me ask you a question. Under Texas law, do you actually have to be the killer to get the -- to be eligible for the death penalty?
WILSON: No, you do not. We have what's considered a parties charge, and that shows that if they have aided, directed, encouraged -- in other words, they have participated in the offense as a party. And so even his testimony at trial would have been alone enough to get him the death penalty of that particular thing.
So I'm not defending the fact that if -- that if sleeping occurred. I am simply trying to point out what the testimony was during the writ hearing in 1995 and what the findings were that came out of the writ hearing.
I think the dissent in the Fifth Circuit made a very good point in that they -- the majority uses the phrase of repeatedly unconscious, which I don't know about you, but that brings to mind the image of someone unconscious lying across...
VAN SUSTEREN: No. Actually, you know what it gives me the image of, a sleeping lawyer...
VAN SUSTEREN: ... in a capital case. That's what -- that's what the image when the United States Court of Appeals in reversing the death sentence here. When he said unconscious, I had the impression the lawyer was sleeping.
WILSON: Well, one of the things that I'd like to bring out, too, is that Mr. Cannon testified at this 1995 hearing and...
VAN SUSTEREN: That's the defense lawyer who was sleeping.
WILSON: Yes, that is the defense lawyer. He is now deceased.
And his testimony was that he had a habit of often closing his eyes, putting his hands together and putting his head back or putting his head forward. Now, again, I am not defending any type of sleeping, and I think that we're beyond the issue of whether he slept. I think that what we need to be looking at is a legal issue of what do we do with it at this point and...
VAN SUSTEREN: And I've got to tell you that's where we go back to this whole issue of the technicality. And I've got to tell you that when there's a finding of fact that a lawyer slept during a 12- hour and 51 minute capital case, I don't care how many hairs you want to split, I really can't understand how anyone in his right mind could send someone to death on that.
COSSACK: I have to break. This has been wonderful.
When we come back: How do we keep sleeping lawyers out of the courtroom? Or out of the studio? Stay with us.
QUESTION: What numbers have some local Waterbury, Connecticut lottery players been playing?
ANSWER: Their mayor's federal inmate number -- 0292935. Mayor Philip Giordamn was charged with enticement of a minor for sexual acts in July and is awaiting trial.
COSSACK: The Sixth Amendment guarantees the right to counsel to assist in one's defense. But what kind of counsel?
Roe, look, I -- here's the issue. I think that I understand pretty much where -- what you're -- what you're saying. You're saying, as I understand it, the defense says, look, you just can't presume that because a lawyer sleeps in the courtroom that that is a prejudicial effect, you have to prove the prejudice. Isn't that what the dissent pretty much said in this case?
WILSON: Yes, I think that's true, and I think also the dissent brought out a couple of really good points. One of them the fact that this claim wasn't made for eleven years. Instead Mr. Burdine asked that this same lawyer represent him on direct appeal and he praised on him in several letters that he wrote after he was convicted. And again, I understand what Greta said earlier that it's not the defendant's responsibility...
WILSON: ... to protect his rights, and that's not where I'm going with this.
COSSACK: OK, Roe, let me -- let me just -- let me just interrupt you a second. You know as lawyer to lawyer, and I understand that you -- you know you're a member of the prosecution team and a -- and a good prosecutor, but, you know, stepping outside your role as a lawyer and stepping outside mine and just being a lawyer, wouldn't you really rather have a rule that says that when a lawyer sleeps in a capital case, albeit 5 minutes, albeit 10 minutes, albeit a minute and a half, that's just not the kind of trial we want in our courtrooms, in Texas courtrooms, and that perhaps we should just start all over again, period?
WILSON: No, I don't want a rule that says that. I don't want it to happen, and I don't think it ever should happen. But I think the rule should be what the Supreme Court has had for years in effect and that's the Strickland v. Washington rule. The truth is trials -- there are times that people do not pay attention, there are times that people are talking, there are times that jurors -- I've seen jurors nodding off...
VAN SUSTEREN: Let me -- let me...
WILSON: ... and certainly they shouldn't be doing that.
VAN SUSTEREN: Let me -- we're running out of time, Roe, and I don't mean to cut you off,...
VAN SUSTEREN: ... but I've got to get to George Kendall.
George, your reaction to this decision 9-5.
GEORGE KENDALL, NAACP LEGAL DEFENSE FUND: Well, one would hope that the attorney general in Texas brings this to an end very quickly. In a capital case there should be no debate, if somebody sleeps during a portion of that trial that is presumptively prejudicial, end of case. Anyone who's tried a case before, whether it's a misdemeanor case or a capital case, knows that you have a very heavy burden of responsibility, you need to watch the witnesses, you need to watch the jurors, you need to be thinking of your next thing you're going to do, you need to be consulting with your client. I can't imagine the legal profession or the bar saying that this kind of conduct is tolerable or embracing a rule that would allow this kind of behavior to not be remedied when it occurs. So I would hope...
VAN SUSTEREN: You know what, George, you know it seems like the bigger problem, and obviously not for this man, but in general, is the quality of representation in these death penalty cases.
KENDALL: It's a huge problem, Greta. It's not just in this case, it's in many cases. We had this wonderful decision from the Supreme Court in 1963 that says that every citizen in this country, whether you're rich or poor, has the right to an affected lawyer. But in many states that great decision has been dishonored. In some states, a quarter of the lawyers who've represented death row inmates were later disbarred because of alcohol problems, other problems. Mr. Cannon in this case, this was not the only case that he slept in. He slept in other cases. The bench and the bar knew that, and there are problems like this in almost every state in the country where we use capital punishment.
VAN SUSTEREN: And...
KENDALL: It's a big problem.
VAN SUSTEREN: And now I have to cut off you, I'm sorry. Thanks, George and Roe. Thanks for joining even, Roe, even though you and I lock horns.
But that's all the time we have.
WILSON: That's fine.
VAN SUSTEREN: Thank you for watching.
COSSACK: And join us again tomorrow for another edition of BURDEN OF PROOF. We'll see you then.
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