Denver Bar Association
August 2002
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You Snooze, You Lose

by Paul Kennebeck

Falling asleep during trial: Strategy or contempt?


Trials can be boring. You know how lawyers present evidence and then they present foundations for evidence and then they pre

sent evidence that corroborates evidence that’s already been presented and then they drone on and on talking about this fabulous evidence they presented?


So boring you close your eyes. The courtroom is stuffy (atmosphere, not people); the heat is on (atmosphere, not your legal career) and you inadvertently nod off for a second or two.

Next thing you know, your client’s been sentenced to death.

When this happened to Joe Cannon, a defense lawyer sitting in one of those stuffy, hot Texas courtrooms where people are always being sentenced to death, Joe said he wasn’t asleep. Joe said he had a habit of closing his eyes and tilting his head back in order to concentrate.

Joe’s dead now, the little death of sleep turning into the real thing.

Joe’s client ( a man named Burdine) is on death row, sleepless, worrying he’ll be facing the real thing. Burdine was on trial because he put someone to death. If you had the mind for it, you could see how poetic and ironic it is that death and sleep are intertwined here, how death and sleep are kinda the same in many ways, except one.

Joe’s client, wanting to live, argues that he did not have adequate legal representation at his trial. Not have adequate legal representation? What did Joe Cannon miss while he put his head back and closed his eyes? Have you ever been to a trial? What’s to miss?

If Joe Cannon had stayed awake, he might have committed malpractice.

If Joe Cannon had stayed awake, he might have gone on one of those paper hunting expeditions lawyers go through during trial, looking through their files, their briefcases, whispering to their associates, rifling through coat pockets, waking the dead.

According to people who know such things, in order for Joe’s client to prevail in his argument, he must prove that but for Joe’s performance, the outcome of the trial would have been different. This might be difficult since Joe’s client confessed that he killed the man he was on trial for killing.

On June 3, the U.S. Supreme Court let stand a Fifth Circuit Court of Appeals decision that held that Joe Cannon presented an inadequate assistance of counsel.

Sleep is not for the faint of heart.

Or maybe Joe Cannon found a case he couldn’t defend and decided on a failproof strategy.

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