Harris County, Texas, which includes
Houston, has had more executions in the last 25 years than any state
except Texas and Virginia. One of the trials that led to a death sentence
was described by the Houston Chronicle as follows:
Seated beside his client - a convicted
capital murderer - defense attorney John Benn spent much of Thursday
afternoon's trial in apparent 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 upright. 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.
When state District Judge Doug Shaver
finally called a recess, Benn was asked if he truly had fallen asleep
during a capital murder trial.
"It's boring," the 72-year old
longtime Houston lawyer explained.
Court observers said Benn seems to have
slept his way through virtually the entire trial.
The judge presiding over the trial, Doug
Shaffer, allowed this farce to continue, explaining, "[t]he
Constitution doesn't say the lawyer has to be awake." McFarland was
sentenced to death. He is one of three people sentenced to death in
capital trials in Houston at which the defense lawyer slept through trial.
In all three cases, the state's highest criminal court, the Texas Court of
Appeals, upheld the conviction and death sentence. Carl Johnson, who was
represented by a sleeping lawyer at a trial in Houston, was executed in
1995.
As described in the articles, the sleeping
lawyers are only the most dramatic examples of the poor quality of legal
representation which many people in Texas receive at capital trials. Texas
has no public defender system. Judges appoint lawyers to defend those too
poor to hire their own lawyers and often those lawyers are incompetent.
Those condemned to die in Texas are also
denied adequate lawyers for appeals and post-conviction review, making it
impossible for them to ever show the injustices that occurred at their
trials. Some lawyers assigned to represent the condemned in these critical
stages of review failed to file pleadings within the six-month deadline
required by Texas law. Others filed petitions that revealed ignorance of
the law and lack of any investigation. Nevertheless, the Court of Criminal
Appeals denied review in all of the cases and refused to appoint competent
lawyers.
The articles show that the court's
abdication of its responsibility to ensure justice is a consequence of
politics. Judges are elected. They run with political party affiliation in
partisan contests. Judges who have been perceived as soft on capital
punishment have been voted out of office. Indeed, even a judge who was
tough on criminals was voted off the court because he voted to reverse a
single capital case. Charles Campbell, a conservative former prosecutor
from Houston, was defeated in 1994 by a challenger, Stephen Mansfield, who
criticized Campbell's vote reversing the case and promised greater use of
the death penalty. Judge Charles Baird, who dissented from some of the
court's most outrageous decisions such as the ones upholding death
sentences when the defense lawyers slept, was voted off the Court in 1998,
when the Republican Party obtained all of the seats on the Court for the
first time in its history. Just six years before, all the members of the
court were Democrats.
The longer of the two articles,
extensively footnoted, was published in the Texas Law Review during
the summer of 2000. The other, a more concise description of what happens
in capital trials in Texas, was published in July 1999 in The Champion,
the magazine of the National Association of Criminal Defense Lawyers. The
articles have been widely circulated and relied upon in documenting the
lack of fairness for those facing the death penalty in Texas.