By Paul Duggan
Washington Post Staff Writer
Friday, May 12, 2000; Page A01

AUSTIN –– Like a vast majority of inmates on Texas's death row, Calvin Jerold Burdine could not afford a lawyer for his trial. So the court paid a lawyer named Joe Frank Cannon to represent him. Today, 16 years after Burdine was convicted of murder and sentenced to die, no one disputes that Cannon did a lackadaisical job. In fact, during important stretches of testimony, he was asleep at the defense table.

Yet despite Cannon's documented incompetence, Texas authorities argue that Burdine should be executed. He remains on death row, facing lethal injection as his appellate lawyers fight the state's attempt to deny him a new trial.

In his Republican presidential campaign, Gov. George W. Bush, a strong proponent of "swift and sure" capital punishment, has repeatedly said he is "absolutely confident" that Texas's death penalty system works fairly. A review of the state's death penalty files show that Burdine is one of many capital defendants whose legal proceedings were poorly handled by lax, inept or inexperienced lawyers.

With few public defender offices in Texas, most indigent defendants must rely on court-appointed lawyers. Interviews with lawyers and other experts, as well as a review of 16 Texas death penalty cases, revealed instances in which lawyers in capital trials slept though key testimony, failed to file crucial legal papers correctly or on time, or had been cited for professional misconduct repeatedly in their careers.

As governor, Bush has relatively little authority over death penalty cases--for example, he does not have the power to impose a moratorium on executions, as Illinois Gov. George Ryan (R) did in February. Last year, however, Bush vetoed a bill that its supporters said would have improved the quality of legal representation for poor defendants. He has defended the prerogative of elected judges to appoint lawyers for indigent capital defendants, despite evidence that some appointments have been tainted by patronage. And in 1995, he signed a law hastening the death penalty appeals process, leaving condemned prisoners even more dependent on court-appointed attorneys.

"At every stage of the death penalty process, Texas is far below any measure of adequacy in terms of the legal representation it provides," said Elisabeth Semel, head of the American Bar Association's Washington-based Death Penalty Representation Project.

Since Jan. 17, 1995, the day Bush took office, 127 prisoners have been put to death in Texas, an average of one execution every two weeks for 5 1/2 years. As of today, 465 inmates, almost all of them indigent, are awaiting lethal injections. No one has yet produced incontrovertible evidence of an innocent person being put to death. However, at least one prisoner has been executed during Bush's tenure despite the fact that his attorney slept through significant parts of his trial. And besides Burdine, at least two other death row inmates whose lawyers snoozed in court are seeking new trials.

Other dead or condemned prisoners were represented by court-appointed lawyers with extensive disciplinary records for professional misconduct, usually for negligent handling of previous clients' cases. One of those lawyers, who represented death row inmate Joe Lee Guy, 28, acknowledged in an interview that he was "an active alcoholic" and cocaine user at the time of Guy's trial, although he said he was sober in court. The lawyer was later unable to file an appeal in Guy's robbery-murder case because his law license had been suspended by the State Bar of Texas, which eventually ordered him to undergo substance abuse counseling.

Another appointed lawyer with a disciplinary record--whose client, Anthony Ray Westley, was executed under Bush's watch--was arrested in the courtroom during jury selection in Westley's trial, charged with contempt of court for failing to file legal papers in the death penalty appeal of an earlier client. The lawyer's subsequent performance in Westley's case was so poor, according to a judicial report, that it resulted in a "breakdown of the adversarial process."

But Texas's highest criminal court, the conservative Court of Criminal Appeals, rejected the report's recommendation that Westley be given a new trial. The court, which has one of the lowest death penalty reversal rates in the country, also rejected requests for new trials in the sleeping lawyer cases, saying an attorney who slumbers at the defense table is not necessarily ineffective.

Leading in Executions

Texas has the busiest death penalty system in the Western world. Since 1982, the state has executed 214 inmates, including one last night. The next highest total is Virginia's 76. Only a few states have reached 25.

Texas law allows Bush to grant clemency to a death row prisoner only if a majority of the state's 18-member pardons board--currently made up of Bush appointees--recommends that he do so. Only once has that happened. On his own, Bush may grant a condemned inmate a one-time, 30-day reprieve. He has said he carefully reviews the case history of every prisoner who seeks a reprieve. But he has never granted one.

Bush has repeatedly voiced unflinching faith in the Texas system. "I'm confident that every person [who] has been put to death in Texas under my watch has been guilty of the crime charged and has had full access to the courts," Bush declared on NBC's "Meet the Press" shortly after Ryan declared the Illinois moratorium.

Harris County, which includes Houston, is the epicenter of the death penalty in Texas. No jurisdiction in America imposes more death sentences. If Harris County had a death row, it would be bigger than the death rows in 29 states.

And it was there that the attorney for Calvin Burdine slept in court. Convicted in 1984 of fatally stabbing a former roommate during a burglary, Burdine, now 47, was sentenced to death in Houston. His case is now before the New Orleans-based U.S. Court of Appeals for the 5th Circuit, which includes Texas. Burdine's appellate attorneys say trial lawyer Cannon, now deceased, did such an atrocious job that it amounted to "ineffective assistance of counsel," a constitutional violation.

Although the Texas attorney general's office does not defend Cannon's sleeping, it wants Burdine to be executed anyway.

As for the napping, "I saw it happen a lot," the trial judge's clerk testified at a 1995 appellate hearing, recalling that Cannon, who had no co-counsel, "was asleep for long periods of time during the questioning of witnesses." Three trial jurors who testified at the hearing said Cannon, who was in his mid-sixties when he represented Burdine, did most of his "nodding off" in the afternoons, following lunch.

"As soon as the prosecutor would get on maybe a long spiel of talk for a while, [the sleeping] would start," one of the jurors said. A court administrator recalled being approached outside the courtroom by the prosecutor, who warned that Cannon was incompetent and should not be assigned to any more death penalty trials.

In an argument typical in such cases, Burdine's appellate attorneys contend that Cannon's inattention ruined any chance Burdine had of being acquitted or sentenced to life in prison. For example, they cite highly incriminating hearsay testimony and other damaging statements that reached the jury with no objection from Cannon. In death penalty cases in the United States, no defendant may be sentenced to death unless a jury decides it is warranted.

The Sixth Amendment entitles a defendant to "the assistance of counsel" at a trial, and the U.S. Supreme Court has said that such assistance must not be "ineffective." But in a 1984 case, Strickland v. Washington, the court ruled that when an appeals court weighs a claim like Burdine's, it must start with a "strong presumption" that the trial lawyer's conduct was reasonable and require the appellant to prove otherwise. Even when an appellant makes that case, he must convince the appeals court that if not for the attorney's inadequate work, the outcome of the trial most likely would have been different.

Citing the tough Strickland standard, Texas's Court of Criminal Appeals affirmed Burdine's death sentence in 1995. But a U.S. District Court judge disagreed last September and ordered a new trial.

Asked about Burdine's case during a March 2 campaign debate in Los Angeles, Bush chuckled when the moderator used the phrase "sleeping lawyers." Then Bush referred to the federal judge's new-trial order as evidence that the death penalty process is fair. "The system worked in that case," he said. But the day after the debate, the 5th Circuit stayed the new-trial order at Texas's request, keeping Burdine on death row while it reviews the case.

"It's inexplicable why the attorney general's office would want to uphold a death sentence in a case where the record is as outrageous as this," said Mandy Welch, one of Burdine's appellate lawyers.

Burdine's case is just one of several involving sleeping trial lawyers in which Texas has pushed for executions, citing the Strickland rule. "We don't in any way condone sleeping during trials, and we're never going to do anything to defend that conduct," said Shane Phelps, Texas's deputy attorney general for criminal matters. "But there are [legal] standards by which we measure ineffectiveness of counsel. Those are the rules that we're supposed to play by."

As in Burdine's case, the state argues that George Edward McFarland should be executed despite the performance of his lead trial attorney.

McFarland, now 39, was charged in the 1991 robbery-shooting of a Houston grocer. McFarland's family hired lawyer John Benn, who was then in his early seventies. Benn had not represented a capital defendant in at least 18 years. The trial judge, doubting Benn's stamina, appointed lawyer Sanford Melamed to assist him. Melamed had been practicing law for 13 years, but had never been in a death penalty case.

Benn, who has since died, seemed detached from the case from the start, Melamed said in an interview. He said he and Benn barely communicated before the August 1992 trial. At the trial, Benn was "out of it," napping for long stretches, Melamed said.

"It grew worse as the days wore on," he recalled. "Benn's physical appearance also seemed to deteriorate. . . . I can remember days where it appeared that he had missed half his shave in the morning." A juror later said Benn's sleeping was "so blatant and disgusting that it was the subject of conversation within the jury panel a couple of times."

Early in the trial, the bailiff, seated near the defense table, kicked Benn's chair from time to time, but eventually gave up trying to keep him awake. "I also stopped making any attempt to keep Benn awake," said Melamed. Instead, he focused on trying to competently defend the case, but was hampered by inexperience, he said.

When the Court of Criminal Appeals, citing the Strickland standard, rejected McFarland's "ineffective assistance of counsel" claim in 1996, then-Judge Charles Baird dissented. "In my view," he wrote, "a sleeping attorney is no attorney at all."

Defense Slept Again

The first execution of Bush's tenure occurred two weeks after he was sworn in. The 12th execution under his watch took place nine months later, on Sept. 19, 1995. The inmate, Carl Johnson, 40, had been on death row for 16 years since a Houston jury convicted him of fatally shooting a security guard during a food store holdup. Johnson was less than ably represented at his 1979 trial by Calvin Burdine's future lawyer, Joe Cannon. Same story: Cannon slept.

In an interview, David R. Dow, a University of Houston law professor who took over Johnson's appeal in 1988, recalled being aghast as he read the trial transcript.

"It was like there was nobody in the room for Johnson," said Dow, who was thwarted by the Strickland rule in trying to save Johnson's life. He noted that the transcript "goes on for pages and pages, and there's not a whisper from anyone representing him."

Cannon's court-appointed co-counsel in the trial, Philip Scardino, was two years out of law school. "It was frightening, the whole experience," Scardino said recently. "All I could do was nudge him sometimes and try to wake him up."

Like Melamed, Scardino said he eventually asserted himself in his client's trial and did his best, but he was a novice. Cannon, on the other hand, had been practicing law since 1950. Today, two years after his death, he remains a courthouse legend in Harris County, which does not have a public defender office. By Dow's count, a dozen of Cannon's indigent clients went to death row in a span of about 10 years, before judges stopped assigning him to capital cases in the late 1980s. Most of those former Cannon clients have been executed in the last decade, Dow said. Of those still alive, at least one besides Burdine is seeking a new trial based on Cannon's snoozing.

Until the mid-1990s, lawyers in most of Texas's 254 counties needed no special qualifications to be appointed to death penalty cases. In 1995, however, the state's nine judicial districts began drafting standards for such lawyers. Harris County, meanwhile, adopted its own rules, requiring lawyers to attend a seminar on death penalty law and pass a certification test before being assigned to capital defendants.

The county's chief judge, George H. Godwin, said indigent capital defendants in his courthouse are "excellently represented" by those certified lawyers.

But he added: "I do not, and will not, defend some of the practices of years ago. There were many instances of bad lawyers, and even bad judges."

Partisan Patronage

Texas's 400-plus trial judges run in partisan, often hard-fought campaigns for their four-year terms. Advocates for indigent defendants contend that in courthouses across the state, judges frequently dispense court-paid cases--including capital cases--as a form of patronage to lawyers who help them politically. Bush, they say, has blocked reform of the system, also for political reasons.

The case of death row inmate Henry Watkins Skinner is an extreme example of cronyism in the appointment process, according to Skinner's appellate attorney.

Skinner, now 38, went on trial in a small Texas Panhandle city in 1995, charged with strangling his girlfriend and fatally stabbing her two grown sons. The judge, M. Kent Sims, appointed a longtime political friend, lawyer Harold Lee Comer, to defend Skinner. Comer had been the local district attorney before resigning in 1992 amid an investigation of his handling of seized drug money. After leaving office, he pleaded guilty to a misdemeanor in a deal that allowed him to keep his law license.

Comer had twice personally prosecuted Skinner for other crimes, which created a potential conflict for him in defending Skinner. State law required the judge to hold a hearing on the question, then give Skinner the option of a new lawyer if it became clear in the hearing that Comer had a conflict. But according to the trial record, Sims, who was aware of Comer's history with Skinner, did not hold such a hearing.

Sims later approved $86,000 in legal fees for Comer's work in the case, one of the biggest sums ever paid to a court-appointed attorney in Texas. At the time, Comer was in debt to the Internal Revenue Service for about the same amount, according to court documents.

In an interview, Comer said the fee and his debt "had nothing to do with one another." Although "there are a lot of lawyers in capital cases who are incompetent," Comer said, he is not one of them. Sims, who is no longer a judge, also has denied any impropriety.

The bill Bush vetoed last year would have given county officials control over the appointment process. Supporters said the measure was meant to promote the creation of independent appointment commissions, if not public defender offices.

But Bush, agreeing with judges who lobbied against the bill, said it "inappropriately takes appointment authority away from judges, who are better able to assess the quality of legal representation."

Houston lawyer Ron Mock said he quit seeking most appointed cases--and swore off all appointed capital cases--in the early 1990s. "I just don't kiss the judges' asses anymore," he said. "I don't have to bring doughnuts to the courthouse for all the staff anymore." But Mock was a regular in death penalty cases in the 1980s. He said "about 16 or 17" of his indigent clients went to death row, and "more than five" have been executed.

Anthony Westley got Mock as his attorney. Westley and an acquaintance, John Dale Henry, were charged in the 1984 robbery of a Houston bait-and-tackle shop. One of them fired the .22-caliber bullet that killed the owner. Then they fled, leaving just one witness, a clerk. Henry went on trial first. The evidence in Henry's trial, including the clerk's testimony, suggested Henry was the robber with the .22-caliber pistol, with Westley carrying a different gun. The prosecutor told jurors that all signs pointed to Henry as the victim's killer. But Henry was not sentenced to death.

Five months later, at Westley's trial, a different prosecutor gave the case a new slant, tailoring the presentation of evidence, and eliciting testimony from the clerk in a way that pointed to Westley as the robber who fired the fatal shot. Westley was sentenced to death. "I did the best I could for him," Mock recalled in an interview.

Except he did not take the basic step of attending Henry's trial or reading a transcript for a preview of the state's case against Westley. Had he done so, a judicial report later concluded, he would have been well-equipped to undermine the spin that Westley's prosecutor put on the crime. That was just one of many mistakes Mock made in the case, according to a 100-page report by a court-appointed special master, Houston lawyer Brian Wice. Wice reviewed the case in minute detail as part of Westley's appeal. He wrote that Mock's preparation for Westley trial was so lax, and his performance in court so inept, that "a breakdown of the adversarial process" occurred.

"Brian Wice is an [expletive], and you can quote me," Mock said recently.

The Court of Criminal Appeals rejected the report's conclusion that Westley deserved a new trial. The 5th Circuit appeals court also affirmed the death sentence, with Judge Harold R. DeMoss Jr. dissenting. "If [Wice's] findings in this case do not satisfy the 'ineffectiveness' and 'prejudice' prongs of Strickland," DeMoss wrote, "then in my view, there is no such animal as 'ineffective counsel' and we should stop talking as if there is."

Westley was 36 when he was put to death on May 15, 1997, the 30th execution of Bush's tenure.

Problems on Appeal

The problems Texas capital defendants have had with court-appointed lawyers extend to the appellate level. Mistakes and failures by court-appointed attorneys have jeopardized some inmates' chances for any meaningful review of their convictions and sentences, according to trial records and legal experts.

Advocates for indigent defendants say the problem results from a law Bush signed in 1995 that was meant to speed the death penalty appeals process. They say Bush's support for that law is at odds with his promise of "full access to the courts" for death row inmates.

A condemned inmate's state appellate lawyer routinely files what is called a "habeas corpus" petition, asking the Court of Criminal Appeals to throw out the conviction and sentence based on constitutional violations--including "ineffective assistance" of trial counsel. Before the 1995 law, inmates often waited on death row for years until experienced appellate attorneys volunteered to prepare their habeas petitions, as David Dow did in Carl Johnson's case. And in some cases, they were allowed to file second petitions if their initial ones failed.

But under the 1995 law, a habeas lawyer is court-appointed for a newly condemned inmate, and has 180 days to file a petition. The law forbids the filing of "successive" petitions except in rare cases. So any issues the lawyer neglects to raise in the initial filing are usually lost forever--because later, during the federal appeal, under federal law, judges are allowed to consider only claims that were made at the state level, except in rare cases.

For defendants, the new law places a heavy weight on the quality of their appellate attorney. But in several recent cases, untrained or careless state habeas lawyers--approved by the Court of Criminal Appeals to represent indigent death row inmates--have filed cursory petitions, occasionally late, containing claims that were poorly researched and sometimes garbled.

The court, after receiving thin petitions, has upheld several death sentences in recent years, even though the appointed habeas lawyers later attested that they were unqualified to handle such complex cases.

One such case involves death row inmate Johnny Joe Martinez.

Sentenced to death for fatally stabbing a Corpus Christi 7-Eleven clerk in full view of a security camera in 1993, Martinez, now 27, was assigned a state habeas lawyer by the Court of Criminal Appeals after the 1995 took effect. Months later, the lawyer--who had no habeas experience--filed a petition that suggested he had not devoted much energy to the case.

"The instant application is five and one-half pages long and raises four challenges to the conviction," then-Judge Baird noted. "The trial record is never quoted. Only three cases are cited in the entire application, and no cases are cited for the remaining two claims for relief. Those claims comprise only 17 lines with three inches of margin."

But over Baird's dissent, the court upheld Martinez's sentence. With a new, more seasoned appellate lawyer, Martinez moved on to U.S. District Court in Corpus Christi. And there, his predicament became clear.

Douglas Danzeiser, an assistant Texas attorney general, reminded federal Judge Hayden W. Head Jr. that he was allowed to consider only claims that Martinez had raised at the state level--and there were not many of those.

Reluctantly, Head agreed he could do nothing.

"I'll tell you something," he said, "I don't like what we're doing. Somehow the rush to take Johnny Joe Martinez's life is unimpressive."

Then he looked again at the thin state habeas petition. "I don't know what's holding up the state of Texas from giving competent counsel to persons who have been sentenced to die," he said.

Texas's Road to Execution

Trial

A capital murder defendant has a trial before a state judge in the county where the killing occurred. He is constitutionally entitled to a defense attorney who isn't "ineffective" as the law defines the word. If he is indigent, the trial judge appoints a local lawyer to represent him. If the jury convicts him, the panel then decides whether he should be sentenced to life in prison or death.

Direct Appeal

If sentenced to death, the defendant challenges his conviction before the nine-member Texas Court of Criminal Appeals, in Austin, the state's highest court for criminal matters. The direct appeal is limited to issues that arose during the trial, such as the judge's decision to admit certain evidence or testimony over the defense's objection.

State Habeas Corpus

A death row inmate whose direct appeal fails may begin another stage of appeals called "habeas corpus" proceedings, aided by a new lawyer. The new attorney's job is to search the trial record for constitutional violations. A state habeas appeal often alleges, among other things, that the inmate's trial lawyer was "ineffective," depriving him of a constitutional right. The state Court of Criminal Appeals rules on this pleading.

Federal Habeas Corpus

If his state habeas appeal fails, the prisoner may file a similar appeal with a U.S. District Court judge in the area where the killing occurred. After the federal judge issues a decision, either the inmate or lawyers for the state may ask the New Orleans-based U.S. Court of Appeals for the 5th Circuit to reverse the ruling. The decision by the 5th Circuit panel may then be appealed to the U.S. Supreme Court. But the high court agrees to hear such appeals only in rare cases involving what it thinks are important constitutional issues.

Clemency

After all appeals fail and the execution is imminent, the inmate asks the 18-member Texas Board of Pardons and Paroles to recommend a sentence commutation to life in prison. The members, who are scattered across the state, do not meet as a group, but review clemency petitions individually, then fax their votes to Austin. The governor may commute a death sentence only if a majority of the board recommends that he do so. But the board, appointed by the governor, almost always votes unanimously against clemency. When that happens, the governor may only grant a one-time, 30-day stay of execution.

Execution

At 6 p.m. on his final day, the inmate is strapped to a gurney in the death chamber at the state prison in Huntsville. After he is given a chance to make a final statement into a microphone dangling a few feet above his head, the lethal chemicals begin to flow.

Death Penalty's Ground Zero

If Harris County, Tex., were a state unto itself, it would rank third among all states in terms of the number of executions since 1976, the year the death penalty was reinstated.

Tex. 214

Va. 76

Harris 62

Fla. 46

Mo. 42

La. 25

S.C. 24

Okla. 24

Ga. 23

Ark. 22