Even sleeping lawyers allowed by courts in Texas capital cases

Harris County, which includes Houston, is responsible for more executions than any state except Texas itself.  Over 100 people sentenced to death in Harris County have been executed since 1976.   Only two states besides Texas have carried out over 100 executions since 1976 — Virginia which has executed 110 and Oklahoma which has executed 105.   Only five other states have executed over fifty people during that time: Florida (78), Missouri (68), Alabama (56), Georgia (53) and Ohio (51).   The entire state of Texas has carried out over 500 executions and has 300 more on its death row waiting to be executed.

One reason for so many death sentences and executions is that Houston judges routinely appoint to represent the accused lawyers who lack the competence, resources and, in some instances, even the inclination to properly handle a capital case.  Jerry Guerinot, appointed by judges in Houston to represent clients in capital cases has had 20 clients sentenced to death due largely to his failure to “conduct even rudimentary investigations.” Adam Liptak, A Lawyer Known Best for Losing Capital Cases, New York Times, May 17, 2010.

Houston judges continue to appoint attorney Jerome Godinich to represent people in capital and other serious criminal case even though Godinich missed the statute of limitations for filing for federal habeas corpus review in three death penalty cases.  As a result, his clients were deprived of any review of their cases by life tenure federal judges.  Even as Godinich missed the filing deadline in case after case, the Texas Bar did nothing to protect people from his incompetence, the Texas Court of Criminal Appeals did nothing and the judges in Houston continue to assign felony cases, including capital cases, to him.  In short, no one in authority cares about the quality of representation for poor people accused of crimes in Houston.

There is a long history of Houston judges appointing lawyers whose incompetence was obvious to represent people accused of serious crimes, including those facing the death penalty.  They appointed Ron Mock, a lawyer who at one time owned 11 bars, including Buster’s Drinkery, a popular downtown hangout for judges and lawyers in Houston, to 19 capital murder cases between 1986 and 2001.  Sixteen of Mock’s clients ended up on death row.   More than 10 have been executed.   The Texas Bar publicly reprimanded him twice and placed him on probation three times before suspending him from practice in 2005.  Mock stopped taking capital cases in 2001 after he was repeatedly criticized for his poor representation of people facing the death penalty, including Gary Graham, who was conviction was based on a single eyewitness who saw him only fleetingly and at night, but nevertheless executed on June 22, 2000, despite questions about his guilt and Mock’s repesentation, and Frances Newton, who, when executed on Sept. 14, 2005, was the first black woman executed in Texas since the Civil War.

Another favorite of Houston judges was Joe Frank Cannon, known before his death for trying cases like “greased lightning” and not always being able to stay awake during trials.  Ten people represented by Cannon were sentenced to death, including at least two, Calvin Burdine, and Carl Johnson, who were sentence to death at trials at which Cannon fell asleep during trial.

The United States Court of Appeals for the Fifth Circuit, sitting en banc, struggled mightily with the question of whether Burdine’s right to counsel was violated when his lawyer, Cannon, whose entire file was less than three pages of notes, slept during parts of the two-day trial in which Burdine was convicted and condemned to death.  A panel of the Court upheld Burdine’s conviction and death sentence, as had the Texas courts.  In argument before the full Court, judges asked whether Cannon slept through any important parts of the trial.  Of course, there was no way to know because the lawyer, who should have been making the record, was asleep.  The Solicitor General of Texas argued that Burdine’s was no different from cases in which lawyers were found effective even though they were under the influence of alcohol or drugs or suffering from Alzheimer’s.

The full Court ultimately decided that Burdine’s right to counsel was violated and he was entitled to a new trial.  The Court held that a lawyer who is asleep is unconscious and, therefore, absent from the trial — unlike lawyers merely impaired by drugs, alcohol, or Alzheimer’s who remain conscious.  Judge Rhesa Barksdale complained in a bitter dissent for five members of the court: “[T]he rule imposes a new obligation on the States in our circuit, by requiring trial judges and prosecutors to closely and unceasingly monitor defense counsel throughout trial to ensure defense counsel is awake.”  Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en banc).

Cannon also slept during the capital trial of Carl Johnson.  Johnson was executed by Texas in 1996.   Professor David R. Dow in describing Cannon’s representation of Johnson said that Cannon’s “ineptitude . . . jumps off the printed page.”  The State, The Death Penalty, and Carl Johnson, 37 B.C. L. REV. 691, 694–95 (1996).

Of course Jerry Guerinot, Ron Mock and Joe Cannon represented hundreds – if not thousands – of poor people accused of non-capital crimes.  For poor people accused of crimes in Houston, there often is no adversay system.

The Houston Chronicle described the trial of George McFarland in Houston as follows:

Seated beside his client . . . defense attorney John Benn spent much of Thursday afternoon’s trial in . . . deep sleep.  His mouth kept falling open and his head lolled back on his shoulders, and then he awakened just long enough to catch himself and sit up-right.  Then it happened again.  And again.  And again.

Every time he opened his eyes, a different prosecution witness was on the stand describing another aspect of the Nov. 19, 1991, arrest of George McFarland in the robbery-killing of grocer Kenneth Kwan.

. . . .

Court observers said Benn seems to have slept his way through virtually the entire trial.

George McFarland’s case is still pending in the courts.  The presiding judge said that the Constitution guarantees a defendant a lawyer, but it does not guarantee that the lawyer must be awake.  The Texas Court of Criminal Appeals upheld the conviction and sentence on direct appeal, McFarland v. State, 928 S.W.2d 482 (Tex. Cr. App. 1996), over a dissent by Judge Charles Baird, joined by Judge Morris Overstreet, which argued “[a] sleeping counsel is unprepared to present evidence, to cross-examine witnesses, and to present any coordinated effort to evaluate evidence and present a defense.”  Id. at 527. The Court upheld the conviction and sentence again on post-conviction review.  Ex parte McFarland, 163 S.W.3d 743 (2005).  Judges Baird and Overstreet were no longer on the Court and there were no dissents.

The sleeping in George McFarland’s case is described by McFarland, Houston Chronicle reporter John Makeig, McFarland’s attorneys and the sleeping lawyer, John Benn, himself, in the following video:

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