Co-Counsel Naps In Capital Case, Conviction Upheld


A capital murder defendant whose lawyer took daily naps throughout his trial should not get a new trial because he had another lawyer who stayed awake, says the Texas Court of Criminal Appeals. The Houston Chronicle reports that the court unanimously denied George McFarland’s claims of ineffective counsel during his 1992 trial for robbing and killing a grocer. In August 2001, the U.S. Court of Appeals for the 5th Circuit ordered a new trial in another case because of a sleeping lawyer.

That case spurred an effort among Harris County judges to set standards for appointments in capital murder cases and led to the Fair Defense Act, a state law requiring a systematic approach to selecting attorneys for poor people. In the McFarland case, 72-year-old defense lawyer John Benn was observed sleeping during jury selection and the napping got worse as the trial progressed. The court agreed that McFarland “did not have Mr. Benn’s active assistance during his postprandial naps and that those naps occurred during ‘critical stages’ of this trial.” However, the court said that the other lawyer, although inexperienced in capital cases, was “an awake, active and zealous advocate” for McFarland.


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