Judge rejects appeal from Houston death row prisoner whose lawyer slept during trial

George McFarland, Texas death row inmate whose attorney slept through his 1991 capital murder trial, in 2003 during an interview at the Polansky Unit near Livingston. George McFarland, Texas death row inmate whose attorney slept through his 1991 capital murder trial, in 2003 during an interview at the Polansky Unit near Livingston. Photo: Steve Ueckert, Houston Chronicle Photo: Steve Ueckert, Houston Chronicle Image 1 of / 24 Caption Close Judge rejects appeal from Houston death row prisoner whose lawyer slept during trial 1 / 24 Back to Gallery

One of the lawyers repeatedly slept through trial and the other had never handled a capital murder before. But last week a Houston federal judge decided that was good enough to keep George McFarland on death row, despite his longstanding claims of innocence and a conviction based largely on the testimony of a single, tentative eyewitness.

The Harris County man was sentenced to die in 1992 for the slaying and robbery of a local grocer, a 43-year-old man gunned down while walking back to his store with a bag of cash from the bank. There was never any physical evidence tying McFarland to the murder, but his primary attorney only cursorily prepared for the case, barely consulted with co-counsel, put on no evidence and dozed through key parts of the whirlwind four-day trial.

"I'm 72 years old," former defense attorney John Benn later told a court. "I customarily take a short nap in the afternoon."

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The high-profile case sparked decades of legal wrangling and an award-winning movie, but it particularly resonated in Harris County in light of an earlier, more infamous sleeping lawyer case that helped usher in legislative changes to indigent defense and ended with the overturning of a local man's death sentence.

Yet in McFarland's case, U.S. District Judge Lynn N. Hughes determined Tuesday that the attorney's dozing was "appalling" and "regrettable" – but in the end decided it didn't matter because at least one of the two defense attorneys was awake at all times, so the accused was never entirely without counsel.

"It's amazing how cavalier the courts have been with regard to this case," said Yale Law School visiting lecturer Stephen Bright. "It's unconscionable."

Tuesday's opinion came more than a decade after the case landed in Hughes' court but, for unclear reasons, the jurist did not make a decision until months after a Houston-area activist wrote a higher court to complain about the delay.

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Rusty Herman, McFarland's current attorney, did not immediately respond to a request for comment.

On an unseasonably warm night in late 1991, a robbery crew gunned down Kenneth Kwan, the owner of C&Y Grocery north of Loop 610. The father of three was on the way back from the bank with $27,000 in hand when a robbery crew opened fire.

Carolyn Bartie, a civilian worker at the Houston Police Department, was a regular customer who happened to be sitting outside to witness the whole shooting. Early on, she tentatively identified McFarland in a photo line-up – though her initial description of the shooter didn't match the man accused.

None of the alleged accomplices was arrested or ever testified, and no prints or physical evidence tied any of the suspects to the crime.

Still, McFarland - who had a criminal background and a history of drug use - was arrested six weeks later after his teenage nephew called Crime Stoppers and said he'd heard the older man confess to a robbery. The teen later recanted, after McFarland had already been sent to death row.

For trial, McFarland hired Benn based on the recommendation of friends. But the elderly attorney hadn't tried a capital case in more than two decades, and started nodding off during jury selection. When the judge spotted the potential problem, he appointed Sanford Melamed – who had no capital experience – as co-counsel.

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When asked if he'd really been snoozing during trial, Benn first said the court proceedings were just "boring" and later contended that he'd been "thinking," not napping. But, unlike in the other sleeping lawyer case - where Joe Cannon dozed throughout Calvin Burdine's trial - McFarland had a second attorney, and the courts so far have zeroed in on that.

Generally, the judge conceded, lawyers should not sleep during trial.

"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."

But in this case, Texas courts already found that it didn't matter because at least one of the two attorneys was awake - even though other attorneys later alleged Melamed was badly prepared.

"This is not a case where the trial court ignored a defendant's constitutional rights," Hughes wrote. "The prosecution engaged in no misconduct. While not perfect, the attorneys made efforts to defend McFarland. Viewing the evidence and McFarland's choice in trial, McFarland has not shown that a different strategy would have ended in a different result. It is regrettable that Benn slept through trial. That does not change the fact that the court of criminal appeals did not misapply the law."

keri.blakinger@chron.com