Resting up

What is it with these folks who snooze at death penalty trials? Sure, the trials aren't like TV dramas. They're slow and often boring with a lot of not terribly articulate folks speaking in great detail about matters of what can seem like stultifying trivia. ("Patrolman Smith handed me the bag, I signed my name to the chain-of-custody slip attached to it, signed it right below what looked like Smith's name, then I carried it to the property room and gave it to Sergeant Jones who I watched sign the slip and then put the envelope in the safe." That sort of thing, which can go on for four or five witnesses and take the better part of an hour in some cases.)

But still. Sleeping?

I want to talk about Calvin Burdine and Joe Frank Canon and George McFarland and John Benn. I want to talk about Arif Majid and Juror No. 1. And I want, especially, to talk about Judge Doug Shaver and Judge Kathleen Sutula.

Burdine and McFarland ended up on death row after their lawyers (Canon and Benn) slept through substantial portions of their trial. Both cases were tried before Judge Shaver in Houston, Texas, who explained to a reporter, in the context of McFarland's case that

The Constitution says everyone's entitled to the lawyer of their choice, and Mr. Benn was their choice. The Constitution doesn't say the lawyer has to be awake.

Shaver can't have been too surprised by Benn's sleeping. According to an article in the Los Angeles Times in July 2000, Shaver explained,

"I knew John Benn. I knew he wasn't competent," Shaver said in a courthouse interview in late June. The judge said Benn had the appearance of "a heavy drinker. . . . His clothes looked like he slept in them. He was very red-faced; he had protruding veins in his nose and watery red eyes. . . . I can't imagine anyone hiring him for a serious case."

Benn himself said,

I'm 72 years old. I customarily take a short nap in the afternoon.

After years of struggling, Burdine got a federal judge to agree that when your lawyer sleeps through your trial, it's like you had no lawyer at all and you're entitled to a new trial. Although a panel of the Sixth Circuit disagreed, the entire court ultimately overruled them in a 9-5 vote.

So far, McFarland hasn't been so lucky.

That extra lawyer may have made a crucial difference. Although he was young, and specifically appointed to assist Benn, not replace him, he ended up trying almost the whole case by himself. And though he made some efforts to wake Benn, he eventually gave up the effort to concentrate on the trial.

But the Texas Courts have said that no matter what Benn did, McFarland had that other excellent lawyer, and that's enough. In fact, he may actually have wanted Benn to sleep:

We might also view Melamed's decision to allow Benn to sleep as a strategic move on his part. At the new trial hearing, Melamed stated that he believed that the jury might have sympathy for appellant because of Benn's "naps."

So, at least, said the Texas Court of Criminal Appeals.

McFarland sits on death row in Texas. The federal courts are next for him.

Arif Majid has a different story. His lawyer didn't sleep through his death penalty trial (he got life) - Juror No. 1 did. Judge Sutula, who tried the case, knew it but did nothing about it. Let's consider the difference, for a moment, between a sleeping lawyer and a sleeping juror.

The sleeping lawyer cannot make decisions about the evidence. He can't decide to object or not. He can't decide whether to cross-examine based on what a witness said, because he doesn't know what the witness said. He is, in every meaningful respect, not present. The sleeping lawyer makes an unfair trial because the adversary system under which we operate collapses. There's just a one-sided presentation. The trial shouldn't count because it wasn't fair.

A sleeping juror isn't listening to the evidence. He cannot weigh it because he doesn't know what it was. He cannot decide whether the witness is lying or telling the truth or maybe just confused because he never observed the witness. His vote is a coin toss and his verdict shouldn't count because it can't have properly been voted by the juror who, in effect, might as well have stayed home.

They didn't put it that way, but that's what the Eighth District Court of Appeals said last week. And good for them. But here's what the Judge Sutula, who tried the case, said.

I saw it. So what. Let him sleep. You guys picked this jury, I didn’t.

Got that?

One judge thinks your right to a lawyer is satisfied even if the lawyer sleeps through the trial. Another judge thinks its OK if the jury sleeps through the trial.

I don't know either Judge Shaver or Judge Sutula. In fact, you now know absolutely everything I do about them. Perhaps they have, in other cases, demonstrated themselves jurists of the highest wisdom and integrity, paragons of the profession, virtually the Platonic ideal of Judge. But you gotta wonder.

Oh, you should wonder about this, too. Both Texas and Ohio elect judges.