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.

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