Another sleeping lawyer case but Texas says he had sufficient representation
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George McFarland
Watch VideoNo weapon recovered.
No stolen items recovered.
No fingerprints.
No shoe prints.
No physical evidence.
Only one eyewitness and she changed description of shooter.
A sleeping lawyer.
Did Texas send another innocent man to death row?
Article on recent Hearing
Houston Chronicle
June 14, 2003
His life on the line, George McFarland had no trouble staying awake during
his 1992 capital murder trial in Houston. The same could not be said for
the lead defense attorney.
But a sleeping lawyer -- the issue resonates here because of the earlier,
infamous case of Calvin Burdine -- is just one troubling aspect of the
trial that sent McFarland to death row.
McFarland, 42, was convicted of the 1991 robbery and murder of a Houston
grocer almost exclusively on the testimony of one person: a woman who saw
the crime but does not know McFarland, a notoriously unreliable form of
evidence.
To this day, McFarland insists he is innocent, a victim of mistaken
identity.
"A lot of people are focusing on the sleeping attorney. That scares me.
That bothers me," McFarland said during a recent interview. "Maybe it's a
good technicality, but what about me being innocent?"
McFarland recently began his final round of death penalty appeals in the
Harris County courtroom of state District Judge George Godwin. Texas
courts already have considered and rejected a direct appeal of his
conviction.
His new lawyers, R. Paul Wickes with the New York firm of Shearman and
Sterling, and W.E. "Rusty" Herman III of Humble, are hoping for a
different result this time.
"I don't see how anyone who is in the criminal justice system could be
satisfied with a case where one of the participants slept through it,"
Herman said. "It's supposed to be an equal playing field. How can it be an
equal playing field when one of the participants is sleeping?"
McFarland is on death row for the robbery and murder of Kenneth Kwan, 43,
owner of the C&Y Grocery off Bennington Street just north of 610.
Kwan and his wife, Shirley, worked at the C&Y 7 days a week for 17 years
and were popular with customers. "Friendly with everybody" is how one
described Kwan, a father of three, at trial.
He was gunned down the unseasonably warm afternoon of Nov. 15, 1991, as he
returned from the bank with $27,000 to cash payroll checks for customers.
One of those regular customers, Carolyn Bartie, was in her car at the time
and witnessed the whole thing.
McFarland was arrested 6 weeks after the crime. Police said they
identified him as a suspect after his nephew, Craige Burks, called
CrimeStoppers.
McFarland, married and the father of three boys, was no stranger to the
criminal justice system. He had been arrested before. He admits he stole
and sold drugs.
"The things I was doing out there," he explains, "I was not the only
person doing things like that."
At his trial, McFarland was represented by John Benn, whom he hired, and
Sanford Melamed, who was appointed by the court.
McFarland said Benn had been recommended by friends. But Benn was 72 years
old and had not tried a capital case in more than 20 years.
Benn began nodding off during jury selection and his sleeping got worse as
the trial wore on. A Houston Chronicle account written on one of the last
days of the trial described Benn with his head rolled back on his
shoulders, his mouth agape.
"I think the poor old guy was tired at the end of the day," Melamed said.
"Being at trial for 10 or 12 days in a row, I think it wore him out."
Benn was unavailable to be interviewed for this article. His family said
he is in a nursing home and in extremely poor health.
Benn was not the 1st Houston attorney to fall asleep during a capital
murder trial.
Calvin Burdine, 50, had his conviction and death sentence for the 1983
murder and robbery of his roommate overturned in 1999 because his defense
lawyer, the late Joe Cannon, slept during portions of his trial in
Houston. Burdine is scheduled to be tried again in July.
Harris County Assistant District Attorney Jack Roady said there are
differences between the cases, most notably McFarland was represented by 2
lawyers. Roady is handling the office's response to McFarland's latest
appeal.
"I think this case gets a lot of attention because of John Benn, but the
fact that (McFarland) had other competent counsel at trial is not given
enough credit," Roady said. "Our position is Mr. McFarland received
effective assistance at trial thanks to Sandy Melamed and to John Benn.
The representation he had at trial was sufficient."
Benn's incapacity thrust the responsibility of defending McFarland on
Melamed, who had never before tried a capital murder case.
Melamed said he did his best to prepare, but concedes he was overwhelmed
at times. Further frustrating his efforts was a bad relationship with
McFarland.
McFarland did not trust an attorney appointed by the system he thought was
trying to kill him. McFarland refused to sign the appointment papers and
insisted on working with Benn.
The case against McFarland lacked the pieces of evidence frequently found
in capital murder cases. McFarland did not confess and none of his alleged
accomplices testified against him, or were ever charged with the crime.
Police never recovered a murder weapon or any of the items taken in the
robbery. There were no fingerprints, shoe prints or anything else to tie
McFarland to the scene or identify him as the killer.
Of the 15 witnesses prosecutors called during the trial, only 2 offered
testimony directly implicating McFarland.
Burks, McFarland's then 17-year-old nephew, testified that McFarland was
carrying a lot of money in the days after the murder and admitted
participating in the robbery with two other men. Bartie, the customer,
testified that McFarland was the man she saw shoot Kwan.
Bartie declined to be interviewed for this article and Burks could not be
located.
During the trial, it was revealed that Burks had been paid $900 for his
CrimeStoppers tip; that Burks received leniency in his own robbery case in
exchange for his testimony; and that Burks had been treated for
psychological problems.
Burks has since given McFarland's new attorneys an affidavit withdrawing
his trial testimony.
A number of the jurors interviewed recently said the case really came down
to the strong testimony of the eyewitness, Bartie, and the fact that the
defense did not even present a case.
Melamed said the defense strategy was not to present a case but to make a
two-pronged argument to the jury. The first argument was that the state
had not proven its case beyond a reasonable doubt. The second was that
even if the jury believed the state had proved its case, the crime did not
qualify as a capital murder deserving the death penalty, Melamed said.
"(The prosecution) didn't have much, but the other side didn't have
anything," said juror Christi McClaugherty of Houston.
The jury never heard the original description of the shooter that Bartie
gave the day of the crime. She described a black man about 5 feet 7 inches
or 5 feet 8 inches tall and weighing about 140 to 150 pounds. McFarland
stands more than 6 feet tall, weighs more than 200 pounds and has a much
darker complexion than the suspect described by Bartie.
Eyewitness testimony is a paradox, said University of Houston criminal law
professor David Crump.
It is widely acknowledged as an unreliable form of evidence, yet people
tend to trust it more than scientific evidence such as fingerprints, said
Crump, a former Harris County prosecutor.
"(Jurors) demonstrate an almost automatic preference for eyewitness
testimony as if it's the only legitimate kind of evidence," he said.
Research has shown eyewitness testimony can be problematic because the
stress of seeing a violent crime hurts a person's memory. Also, memory
worsens with time and witnesses can be susceptible to suggestions --
intentional or unintentional -- from police or prosecutors.
A person's confidence in the identification doesn't improve their odds of
getting it right, said Myrna Raeder, a professor of law at Southwestern
University School of Law and an instructor at the National Judicial
College.
Much of the research on eyewitness identification has been done in the
last decade, since DNA testing has become more prevalent and identified
people wrongly convicted of crimes. A study by the Innocence Project in
New York found that 80 % of the convictions overturned with DNA evidence
originally had been won by eyewitness testimony.
Much of the research into the reliability of eyewitness testimony has been
conducted in recent years. According to Melamed, at the time of
McFarland's trial, defense attorneys had no idea they could call an expert
to testify about the potential for mistakes in eyewitness testimony.
At this stage of the legal process, McFarland is up against it and he
knows it. State and federal appellate courts defer to the trial court and
assume the jury that heard the evidence is in a better position to judge
guilt or innocence than a reviewing court. Once convicted, defendants are
held to a high standard of proof on appeal.
Still, McFarland is hoping there are enough problems in his case that it
will catch the attention of a judge.
"If the state of Texas kills me tomorrow one thing I know, God knows I
didn't kill Kenneth Kwan." | |
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