The Texas Court of Criminal Appeals has ruled that a man whose attorney slept through portions of his 1992 death penalty trial should not get a new trial because he had another less experienced attorney who remained awake. In its ruling, the Court denied George McFarland’s claim of ineffectiveness of counsel and upheld his death sentence. “We conclude that, although one of his attorneys slept through portions of his trial, applicant was not deprived of the assistance of counsel under the Sixth Amendment because his second attorney was present and an active advocate at all times,” wrote Judge Cathy Cochran.

The opinion stated that John Benn, the 72-year-old attorney representing McFarland, was first observed sleeping during jury selection and the napping got worse as the trial progressed. At times the bailiff would nudge Benn’s chair to awaken him, and the judge admonished him during the trial. Benn’s co-counsel during McFarland’s trial, Sanford Melamed, was appointed by the trial judge. Cochran wrote that 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.” She also noted that Melamed was a less-experienced attorney. At a hearing on McFarland’s motion for a new trial, Benn explained, “I’m 72 years old. I customarily take a short nap in the afternoon.”

In August 2001, the U.S. Court of Appeals for the 5th Circuit ordered a new trial in the Texas case of Calvin Burdine, whose attorney also slept through portions of his death penalty trial. (Houston Chronicle, May 19, 2005). View a short video clip about the McFarland case, including statements from John Benn, George McFarland, and a witness to the trial. See also, Representation.