The 5th U.S. Circuit Court of Appeals, in an Oct. 27 ruling, held that Calvin Burdine must show how he was harmed when his lawyer nodded off during his 1984 trial for capital murder. 

The 2-1 decision by a three-judge panel of the court reversed a 1999 ruling by U.S. District Judge David Hittner of Houston, who ordered that Burdine either be retried or freed. Hittner, who found that lawyer Joe Cannon slept through parts of Burdine's trial, held that "a sleeping counsel is equivalent to no counsel at all." 

Robert McGlasson, an Atlanta, Ga., lawyer who represents Burdine, says he will seek a rehearing before the full 5th Circuit Court. If that fails, McGlasson says, he will seek a review by the U.S. Supreme Court. 

David Dow, a professor at the University of Houston Law Center, says he believes the Supreme Court will be interested in the issue raised by this case.  "This is a ground-breaking ruling," Dow says. 

The decision by 5th Circuit Judges Edith Jones and Rhesa Hawkins Barksdale said the evidence presented to the panel did not show whether Cannon slept during the presentation of crucial evidence or during the introduction of unobjectionable, uncontested evidence. 

"Burdine's claim does not involve impairments of the Sixth Amendment right that are easy to identify," Jones wrote in the majority opinion. 

Dow says the majority rejected a long-standing principle that it's not necessary to show harm if there has been an actual denial of counsel. 

"It (the 5th Circuit's ruling) introduces harm analysis into the single corner of constitutional doctrine that said harm analysis was unnecessary," says Dow, who specializes in constitutional and death penalty law.
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The Lighter Side of Life Recipe of the Month Mocha Chocolate Cheesecake

1 1/4 cups chocolate wafer crumbs (about 32 wafers)
1/4  cup plus 1 tablespoon unsalted butter, melted 
2 tablespoons slivered almonds, toasted 
8 (1-ounce) squares semisweet chocolate
3 (8-ounce) packages cream cheese, softened
1 cup sugar
3 eggs
1 1/2 tablespoons instant coffee granules
2 tablespoons Kahlua
1 teaspoon vanilla extract
1 1/2 cups commercial sour cream 
1/2 cup whipping cream 
1 tablespoon powdered sugar
Chocolate curls (optional)

     Combine chocolate wafer crumbs and melted butter; stir well.  Press into bottom and 1 inch up sides of a 9-inch springform pan.  Sprinkle with slivered almonds.  Chill.
     Place semisweet chocolate in top of a double boiler; bring water to a boil.  Reduce heat to low; cook until chocolate melts.
     Beat cream cheese with an electric mixer until light and fluffy.  Gradually add 1 cup sugar, beating well.  Add eggs, one at a time, beating well after each addition.  Add melted chocolate, beating until smooth.
     Crush coffee granules with a mortar and pestle or the back of a spoon.  Combine coffee granules, Kahlua, and vanilla; add to chocolate mixture, beating well.  Fold in sour cream.
     Pour chocolate mixture into crumb crust; place on baking sheet.  Bake at 350 degrees for 1 hour.  Turn off oven and let cheesecake stand in oven 30 minutes with door partially open.  Remove from oven; cool on wire rack.  Cover and chill at least 8 hours.

Beat whipping cream until foamy; gradually add powdered sugar, beating until soft peaks form.  Remove sides of springform pan; pipe or dollop whipped cream around edge of cheesecake.  Garnish with chocolate curls, if desired. 
Yield:  One 9-inch cheesecake..