Let Sleeping Lawyers Plea

Alicia Shepard CBS/The Early Show

CBSNews.com Special Contributor Lloyd Garver finds something that we've always suspected is legally true: having a lawyer who is awake does not necessarily help your case.
I should've been a lawyer. Do you know what stopped me from becoming one? Lies. I didn't do particularly well on the Law Boards when I was in college, so my adviser told me I shouldn't go to law school. Over and over again, I heard about how difficult it was to be an attorney. All lies. I learned recently that a three-judge panel in Texas ruled that it was OK for a lawyer to represent a murder defendant even if the lawyer slept through a great deal of the trial. I can sleep. I would've been a great lawyer.

In an appeal, these wise judges ruled that a defendant in a murder trial does not have an absolute right to an attorney who must stay awake during the trial. The panel -- which issued a 2-1 ruling -- said that they were not "condoning sleeping by defense counsel during a capital murder trial." However, they added that it was "impossible to determine -- instead only to speculate -- that counsel's sleeping" actually hurt the defendant's case. So, something that we've always suspected is legally true: having a lawyer who is awake does not necessarily help your case.

The accused is named Calvin J. Burdine. No one disputes the fact that Mr. Burdine's lawyer kept falling asleep during the trial. I don't fault this attorney. I get sleepy at work sometimes, too. And who among us has never fallen asleep at a meeting where the stakes were the life or death of a fellow human being? However, Mr. Burdine appealed again.

All 14 Fifth Circuit judges heard the appeal. They ruled in Mr. Burdine's favor, opening up the way for a new trial. However, this was decided by a 9 to 5 vote. So, five of these judges also felt that he got a fair trial even though his lawyer slept through it! If they believe it's okay for a criminal lawyer to fall asleep during a murder trial, they obviously wouldn't find fault with lawyers falling asleep while performing less serious duties like writing contracts or wills. So, we shouldn't be surprised if attorneys start billing us not just for the hours they work, but for the time they put in on that office couch as well.

One of the three judges who originally ruled that a capital criminal defendant does not necessarily have a right to an awake attorney is Edith H. Jones. The really good news is that Judge Jones, a Reagan appointee, has been mentioned as a possible nominee for the United States Supreme Court if President Bush gets to name a new Justice. One would assume that Judge Jones would be able to convince the other eight Supreme Court Justices of the wisdom of her decision. After all, none of them is all that young, and I'm sure they all appreciate the importance of napping. So, it's bound to become the Law of the Land. That's great news for lawyers. Just as some of them have been doing for years, they will all be able to do their work in their sleep.

Mr. Burdine hired a new attorney for the appeal. His original lawyer -- the sleepy one -- died. According to the legal thinking in Texas, I assume that Mr. Burdine could still have his first lawyer if he wanted him despite his being deceased. After all, if it's OK for him to have a lawyer who sleeps through the trial, why couldn't he have one who just happens to be dead? In fact, perhaps it would be to Mr. Burdine's advantage to choose a dead lawyer. He could choose any lawyer in the history of jurisprudence. I know if I ever get a speeding ticket in Texas, I'm hiring Clarence Darrow.


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Lloyd Garver has written for many television shows, ranging from "Sesame Street" to "Family Ties" to "Frasier." He has also read many books, some of them in hardcover.size>

By Lloyd Garver
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