Death Penalty

Sleeping lead lawyer doesn't justify overturning capital conviction, federal judge rules

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A federal judge in Texas has rejected a habeas petition filed on behalf of a death-row inmate whose primary lawyer snoozed throughout the trial.

U.S. District Judge Lynn Hughes ruled against inmate George McFarland, who was convicted in 1992 for killing and robbing a grocer carrying a bag with $27,000 to cash customers’ payroll checks. The Houston Chronicle has coverage of the April 2 decision.

No one disputes that the lawyer’s sleeping “was pronounced, obvious and frequent,” Hughes wrote. But McFarland was never completely without counsel because a concerned judge had appointed another lawyer as co-counsel.

McFarland was charged after his nephew said he had admitted to the robbery and an eye witness identified him, although her initial ID was tentative. No physical evidence connected McFarland to the crime. The nephew was paid $900 from Crime Stoppers for his information.

McFarland had hired 72-year-old lawyer John Benn to represent him, although he had not tried a capital case in two decades, Hughes wrote in his decision. The trial judge recognized that Benn was unprepared to try a capital case and repeatedly asked McFarland whether he wanted to continue with Benn as lead counsel. McFarland kept Benn.

“The bailiff initially nudged Benn’s chair to rouse him but soon gave up,” Hughes wrote. “Benn’s sleeping was obvious to the entire courtroom.”

The trial judge appointed a second lawyer, Sanford Melamed, as co-counsel. Melamed had tried about 30 felony cases but had never represented a capital defendant. McFarland didn’t consent to appointment of Melamed, and Benn refused to coordinate with him on trial strategy.

Melamed did examine all but three of the prosecution witnesses, however. He had filed motions, tried to exclude evidence, hired an investigator and researched legal issues. He also was ready to try the case himself. At trial, Melamed questioned the nephew about his $900 payment form Crime Stoppers and his previous admission to a mental institution.

Benn had testified that reading the state’s case and briefing a few points of law on evidence was sufficient trial preparation, Hughes said.

But Benn did cross-examine the eye witness, bringing out that she initially told police she wasn’t sure she could make an identification. Benn also questioned her ability to recognize McFarland in an initial photographic array a month after the crime. In closing arguments, Benn told jurors that her memory was unlikely to have improved when she later identified McFarland in a live lineup.

Benn and Melamed are listed as deceased in records by the State Bar of Texas.

“The court does not approve of a sleeping lawyer,” Hughes wrote. “This is unacceptable by an attorney in any case, and particularly in a case of this magnitude. The question before the court is whether the court of criminal appeals unreasonably applied federal constitutional law. It did not. McFarland was never completely without counsel.”

The case had come before Hughes more than a decade ago, according to the Houston Chronicle. Hughes ruled months after a Houston-area activist wrote a higher court to complain about the delay.

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