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Compiled by GayToday
However, the Fifth Circuit's October 27, 2000 ruling vacates the lower court's decision and paves the way for Burdine to be executed. The appellate panel considered the testimony of jurors and a court clerk that Cannon slept on several occasions for as much as ten minutes at a time. However, the majority refused to overturn Burdine's death sentence, writing: "The record does not permit identification of the portions of trial during which Cannon slept. We are, therefore, unable to determine if he slept, for example, during the presentation of uncontested, unobjectionable exhibits or testimony." The majority held that it was Burdine's responsibility to prove that Cannon slept during critical periods of the trial. The two Republican judges also wrote in the opinion that they would not presume that a lawyer is ineffective because of alcohol abuse, addiction to illegal drugs, Alzheimer's disease, mental illness, or intoxication during the trial.
Judge Fortunato P. Benavides, a Clinton appointee, was the sole dissenting judge. "It is well established that a defendant 'require the guiding hand of counsel at every step in the proceedings against him,'" wrote Benavides, quoting the Supreme Court's ruling in the 1932 case of Powell v. Alabama. "I conclude that being represented by counsel who slept through substantial portions of a client's capital murder trial violates the Sixth Amendment right to counsel, and, thus, Burdine should be entitled to a new trial with the benefit of counsel who does not sleep during substantial portions of his trial. In my opinion, it shocks the conscience that a defendant could be sentenced to death under the circumstances surrounding counsel's representation of Burdine." Wiley stated: "I'm not sure how much Burdine's sexuality had to do with this decision. All the majority said about Burdine being gay was that he and Wise were in a 'homosexual' relationship. But I have no doubt that Burdine being gay influenced the outcome of the trial. Cannon was either sleeping or just plain out of it when he didn't object to the prosecution's prejudiced and homophobic questions." "According to the trial court's transcripts, the prosecutor asked Burdine whether he was the 'man or the woman' during sex with Wise. That had no relevance whatsoever to the trial and was absolutely prejudicial. When the jury was trying to decide whether to give Burdine jail time or the death penalty, the prosecutor supposedly said that jail wasn't a bad punishment for a homosexual. Cannon should have been screaming objection at the top of his lungs after a comment like that." Wiley said: "I think that the Supreme Court would probably overturn this decision. That is, unless new conservative justices get appointed." He continued: "Texas has made the decision that murderers can be put to death. That's clearly a decision for the Texas legislature to decide. But you can't give someone an incompetent, sleeping lawyer and expect them to get a fair trial. It's just outrageous." Wiley, President of the Dallas Gay and Lesbian Bar Association, is a graduate of Vanderbilt University and Tulane Law School. His firm is located in the predominantly gay Oak Lawn area of Dallas.
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When asked about the case of Calvin Jerold Burdine, GOP presidential candidate Texas Gov. George W. Bush snickered 