Baird took Overstreet's dissent a step further, adding: "The majority shall not be seen as impartial jurists but for what they are, partisan advocates advancing an agenda of reaching results which ultimately benefit the state."
Baird says the McJunkins ruling is another example of the current court bending over backward to help the prosecution. The court's attitude, he says, has trickled down to trial judges and prosecutors who feel like the high court will let them get away with murder. They have an attitude of invincibility because they know their errors will not lead to a reversal.
John Anderson
Attorney Richard Anderson says defendants might as well abandon hope on appeals to the court.
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It has gotten so bad, Baird says, that one Harris County trial judge whispered in his ear that he feels like he could fall asleep during a trial and still not be admonished by the court. And there's precedent for something like that.
Earlier this autumn U.S. District Judge David Hittner of Houston ruled that Calvin Jerold Burdine, who has been on Texas's death row for 15 years, had a right to a new trial because his lawyer had slept through some of his 1984 capital murder trial. In a 6-3 decision, the Court of Criminal Appeals in 1995 denied the man's petition for a new trial without detailing its reasons in writing.
McCormick now says that nowhere did Burdine prove that he was harmed because his lawyer had nodded off. "Did he show, for example, that any evidence was wrongly admitted when the lawyer was asleep? Did he show that he couldn't object to something because the lawyer was asleep?"
McCormick says he isn't even convinced that Burdine's lawyer slept through some of the trial, as the attorney maintained he merely closed his eyes while concentrating. Hittner concluded not only that the lawyer had slept, but that Burdine effectively had been denied his constitutional right to have an attorney represent him at all times during his trial.
"I believe very firmly," McCormick counters, "that if a lawyer is sleeping through a trial, the judge is going to do something about it at the time."
Benefit of the doubt: trial judge. Advantage: prosecution.
With rulings like Burdine and McJunkins, and his personal nightmare of Jones staring him in the face, defense attorney Anderson says he has a hard time looking his clients in the eye.
"No matter how unfair of a trial a client got, I can't offer that person hope," he says. "I know that the agenda of certain members of this court is more important to them than my client's right to have his or her appeal decided fairly."
