George McFarland

Innocent man on Death Row in Texas
On Death Row because his lawyer slept during his trial.


Ever heard of the sleeping lawyer syndrome?



Law and Order: How Awful Does a Lawyer Have to Be?
Sleeping Lawyer Syndrome
Bruce Shapiro
The Constitution says that everyone's entitled to an attorney of their choice.
But the Constitution does not say that the lawyer has to be awake.
–Judge Doug Shaver, Texas District Court
Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit recently wrote in The New Yorker of the insomnia he suffers when he sends a death-row defendant to execution. But he goes through with it, thanks to his confidence that today's capital cases are "meticulously litigated."
I don't know what legal system Judge Kozinski lives in. On February 18, a week after his article appeared, the U.S. Supreme Court denied a hearing to George McFarland, who was sentenced to death in Houston in August 1992 for killing Kenneth Kwan, a convenience store owner. The transcript of McFarland's trial is open on the desk in front of me. Judge Kozinski could read it without disrupting his docket; the case moved with bullet-train velocity. Opening statements on August 10, 1992; guilty verdict on August 12; death sentence on August 14. With lunch and the occasional recess, it required not more than sixteen hours of "meticulous litigation" for Texas to transform George McFarland from Presumed Innocent into Dead Man Walking.
Even cursory reading of that trial record is enough to suggest that Texas will likely send McFarland–a 36-year-old petty thief–to his death on the basis of evidence that in many states wouldn't make a parking ticket stick. But the most startling fact of McFarland's trial was not recorded in the transcript, and involved not McFarland but his lawyer, one John Benn. Here's how Houston Chronicle reporter John Makeig described what happened as McFarland stood on trial for his life:
Seated beside his client...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...arrest of George McFarland in the robbery-killing of grocer Kenneth Kwan.
When the 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 idea of a lawyer sleeping through a murder trial may be a little disconcerting–unless you are from Texas, where sleeping lawyer capital cases are a bona fide trend. In the past year alone, the Texas Court of Appeals has turned down three petitions from death-row inmates whose lawyers slept through significant parts of their trials.
A death sentence gives the phrase "right to counsel" a special edge: How awful must a lawyer be before the right to counsel is violated in such cases? Ever since the Supreme court reinstated capital punishment in 1976, that's been a critical and unresolved question–especially in Southern states, because of the number of defendants sentenced to death there and the horrifically low fees allocated to death-row lawyers. In Kentucky, court-appointed defense lawyers $2,500 for an entire trial: in Mississippi, an average of $11.75 per hour.
I first heard about George McFarland and his sleeping lawyer from Stephen Bright, the ferociously crusading director of the Southern Center for Human Rights in Atlanta. Traditionally, defense lawyers will read about the death penalty have focused on issues of legal principle while sparing the cynics and incompetents in their profession much scrutiny. But Bright has meticulously documented dozens of hair-raising cases involving both court-appointed and privately hired death-penalty trial lawyers: lawyers who spent the trial drunk, lawyers who called their clients "little nigger boy," lawyers who couldn't recite a single criminal statute or case.
This issue was percolating constantly through the courts of Texas by November 15, 1991, when Kenneth Kwan, a Chinese immigrant, arrived at his C and Y convenience store from the bank. He was carrying a sack of money to cash customers' paychecks. He had driven back from the bank with James Powell, a shotgun-bearing security guard: Ken Kwan's wife was waiting inside the store. As they drove up, a man stood on the sidewalk with a plastic bag of clothing, as if going to the laundromat next door. Suddenly the man with the bag pulled out a pistol, put it to Powell's head and told him to drop the shotgun. Powell dropped it. Another man appeared on the scene. Someone—it is not clear who, or how many guns were involved—fired at Kwan, who was shot five times in the chest and back. The second man grabbed Kwan's sack of cash and the two vanished in a car. A customer named Carolyn Bartie, who was driving up as the robbery started, help Mrs. Kwan aid her wounded husband. Kwan got to the hospital at noon and was dead two hours later.
At first, the police had no suspects. Neither security guard Powell nor customer Bartie gave a specific description of Kwan's killer, except that he was an African-American around 6 feet tall. Both doubted they could recognize him. Their stories of what happened, and which man had fired on Kwan, differed radically. There was no physical evidence and there were no other witnesses.
A few days after the murder, a phone call came to Crime Stoppers, a public informant line. A young man named Craig Burks offered to finger his uncle, George McFarland—a three-time loser who had gone to prison for a $1200 jewelry heist, a mugging and car theft. McFarland, Burks said, had taken him and two other relatives for a drive the night of Kwan's shooting and flashed a role of bills. Then, said Burks, Uncle George boasted of taking part in the robbery and named two other buddies as well, though he said he had nothing to do with the shooting.
Burks was not exactly an ideal witness. A thrice-convicted felon, he had a history of psychiatric hospitalization. several times he had tried to drop the dime on others through Crime Stoppers in hopes of collecting the line's reward. Finally, around the time he called Crime Stoppers, Burks himself was arrested for aggravated robbery and faced prison. He'd testify against McFarland if in addition to collecting the $900 reward the charge and jail term were reduced drastically.
The Houston D.A.'s office agreed to Burks's demands and on January 3 brought McFarland in. However, James Powell—who had stood next to the robber—couldn't identify him. Carolyn Bartie, a civil employee of the police department working downstairs from the homicide squad, swore at the time of Kwan's killing she would never be able to identify the killer. She said McFarland might be the man who held Powell at gunpoint, but she couldn't sure from the photo lineup she was shown. It was only after Bartie studied McFarland's photo and was finally shown him in a live lineup that she decided he was the man she had seen. This—a purchased statement from an unstable informant and uncertain witness identification—was the full extent of evidence against George McFarland when he went to trial in August 1992.
It's easy to image how, say, Johnnie Cochran might have disposed of such a case—especially when Burks took the stand and could not even remember how long ago the events he was describing took place. But McFarland's family hired Benn, a fixture in Houston's courts for forty-two years. Judge Shaver later described him as "somewhat long of tooth." In fact, when the case hit Shaver's docket he took one look at the somnolent Benn and without even asking McFarland appointed a second, presumably more vigorous lawyer to assist, a self-employed defense attorney named Sanford Melamed.
Court records suggest that while McFarland may have had two lawyers, they were hardly a dream team. Melamed testified during McFarland's appeal that when Judge Shaver appointed him, "I called [Benn] at his office and asked if he wanted to have a discussion about who would do what. He did not."
Neither lawyer did much to prepare for McFarland's murder trial. Benn, the lead counsel met with McFarland just once in the lockup. Benn later said he prepared "by reading the State's case and briefing a few points of law on evidence." Melamed testified that he spent "five, six, seven hours" preparing for the trial. There was no investigation, no attempt to locate the other suspects fingered by Burks or potential witnesses whose names McFarland provided. Between them, the two lawyers spent less than two workdays preparing for a trial that would determine whether George McFarland would live or die.
Benn later admitted that he and Melamed did not compare notes during the trial, not even to prepare for final arguments. As for Benn's sleeping—"I customarily take a short nap in the afternoon," was his only explanation. Melamed later said he thought Benn's sleeping might make the jury "feel sorry for us."
Now, a reasonable person might decide that this Sleepy-dopey tag team hardly constitutes effective assistance; and that a competent lead counsel might have made a difference in a death-penalty case with such slim evidence. In the words of one 1984 federal appeals court decision, "sleeping counsel is equivalent to no counsel at all."
But in Texas, one judge after another has found that sleeping lawyers are no barrier to a fair death-penalty trial. last year the state executed Carl Johnson, whose trial lawyer Joe Cannon had, in the words of Johnson's appeals lawyer, slept "during jury selection and portions of the testimony itself" and was later disciplined for incompetence in another death-row case. no surprise, then, that in February 1996 the Texas Court of Criminal Appeals agreed by a 7-to-2 margin that the sleeping John Benn was no reason to re-open McFarland's case, adding that "we might also view Melamed's decision to allow Benn to sleep as a strategic move on his part."
What is it about Texas and Sleeping lawyers? Partly it is the singularly bloodthirsty record of the state's courts. But it's a judicial state's rights issue, too: Texas judges hold out for their own standards, and enjoy thumbing the federal judiciary in the eye whenver they can. During McFarlonads' trial Judge Shaver commented on attorney Benn's behavior with the memorable bit of constitutional philosophy that opens this article. The U.S. Supreme Court, evidently, doesn't see any of this as a problem, since it has yet to hear a sleeping lawyer appeal, and declined to grant McFarland an expedited hearing.
McFarland-not a poet or a revolutionary or any other candidate for celebrity, just a three-time loser-says he is no killer. I can't know that. But it is amply clear that the evidence against him is uncertain at best. I am also struck by the fact that Texas has made no move to arrest McFarland's supposed co-conspirators; the evidence just doesn't exist. His casenow goes before the Texas Supreme Court, and from there he can file a single habeas corpus petition in federal district court. But appeals courts normally can't hear new evidence; without some federal judge or the U.S. Supreme Court standing up to Texas on its sleeping and otherwise incompetent lawyers, McFarland's chances aren't good.
By the way, Judge Kozinski's New Yorker article had at least one unexpected result. George McFarland's new appeals lawyer, a New York attorney named Paul Wickes, was inspired to take the case pro bono, in part by his distress at Kozinski's view of "meticulous litigation."
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