(so-called) liability of criminal defense attorneys: A system in need of reform, The
[L]awyers in criminal courts are necessities, not luxuries.”1
I. INTRODUCTION
On trial for capital murder in Harris County, Texas3 in June of 1983, Calvin Burdine was represented by Joe Cannon, an experienced criminal defense attorney.4 Burdine was accused of murdering W.T. “Dub” Wise during a robbery. Both Douglas McCreight and Burdine were accused of committing this crimes.5 Although the evidence indicated that McCreight was the primary actor during the crime, the State of Texas entered into a plea arrangement with McCreight for which McCreight served an eight year prison sentence.6 At Burdine’s trial, Cannon performed in a fashion that, apparently, was not unusual for him7-by sleeping through “substantial portions” of his client’s trial,8 including occasions where the prosecutor was questioning witnesses.9 Cannon dozed with his chin on his chest, his head bobbing up and down during the proceeding.10 He had a particular affinity for napping during the afternoons of both the guilt/innocence and punishment phases of Burdine’s trial.11 Cannon slumbered anywhere from a few seconds to about ten minutes at a time,12 and when he awoke, he often darted his head up suddenly and appeared quite startled.13
Of course, the record of Burdine’s trial cannot possibly indicate precisely when Mr. Cannon was asleep or awake or what trial happenings Cannon observed or missed because he was asleep. However, it was established that he missed “substantial portions” of the case against Calvin Burdine.14 Therefore, it is not surprising that the jury convicted Burdine of capital murder and sentenced him to death. What is surprising is that when Burdine complained of his trial counsel’s inexcusable behavior to Texas’s highest court of criminal appeals, the court summarily held that, although Burdine did prove that Cannon slept through substantial portions of Burdine’s capital murder trial, Burdine had not proven that he received ineffective assistance of counsel in violation of the Sixth Amendment.15 It was not until over sixteen years later that a divided court agreed with Burdine that the lawyering he received at his capital murder trial was constitutionally inadequate.16 Although ruling in Burdine’s favor, the court did so over strong and vociferous dissent.17
What is not unique about his case is the deplorable legal representation that he received. There are a multitude of cases that reveal legal representation of criminal defendants as something that can be described as nothing less than “poor lawyering.”19 Unfortunately, this phenomenon occurs more often than our legal system may care to admit.20
place meaningful safeguards will necessarily improve the legal representation that criminal defendants receive.
II. UNCONSCIOUS, INEBRIATED, AND OTHERWISE INCOMPETENT LAWYERING
Bellamy. In the mid- to late-1980s, after almost fifty years in the profession, attorney Sidney J. Guran retired from practicing law.39 At seventy-one years of age and under the care of a physician, Guran’s health was declining.40 His doctor diagnosed him as suffering from polyneuropathy, a neurological problem characterized, among other things, by peripheral motor weakness, unsteadiness on one’s feet, and an inability to concentrate.41 In January of 1986, Perry Bellamy’s mother retained the ailing Guran, in spite of his medical problems, to defend her son against murder charges.42 Although Guran had been retired from the practice of law for over a year, Guran agreed to the representation, a decision based in part on the fact that he had represented Perry numerous times in the past.43
between three and six months and that during that time Guran would be mentally incapacitated.46 One month later, the Committee petitioned for Guran’s indefinite suspension from the practice of law while at the same time moving for an order immediately suspending him from practicing. 47
In response to the Committee’s request of an immediate suspension, Guran attested, in sworn affidavit, that although the allegations of his physical and mental incapacity were in dispute, he should be permitted to represent Bellamy in his murder trial scheduled for the following month.48 In requesting permission to help in Bellamy’s representation, Guran stated that he would not try the case by himself but wanted to be available to assist a “competent attorney.”49 Guran promised not to take any cases other than Bellamy’s.50 The Committee granted his request.
Bellamy’s trial took place approximately one month later. In spite of his agreement with the Committee, Guran represented Bellamy without any trial assistance from additional counsel.51 The jury pronounced Bellamy guilty of murder on January 24, 1987.52 In March 1987, the Committee unanimously suspended Guran from the practice of law in order “to protect the public” because, as Guran conceded, he was incapable of practicing law.53
went unheeded until he appealed to the Second Circuit Court of Appeals. The majority of the panel agreed that Bellamy had been denied the effective assistance of counsel in violation of the United States Constitution.55 In so concluding, the panel reversed the lower court’s denial of his request for habeas corpus based on ineffective assistance of counsel, ruling that “this is one of those rare instances where denial of effective counsel must be presumed as a matter of law, without any showing of prejudice.”56