George McFarland
----- Original Message ----- 
From: Taoss - Sherry Swiney 
To: PATRICK Crusade 
Sent: Saturday, August 16, 2003 6:49 PM
Subject: [patrickcrusade] New testimony in (another) sleeping-lawyer case [George McFarland]
 

http://www.chron.com/cs/CDA/story.hts/metropolitan/2051144

Aug. 15, 2003 | Houston Chronicle

New testimony in sleeping-lawyer case

 By JAMES KIMBERLY
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Sentenced to death following a trial where his lawyer slept and prosecutors presented not a piece of physical evidence, George McFarland returned to a Harris County courtroom Friday seeking a new trial.
(Steve Ueckert / Chronicle)
 

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Sentenced to death following a trial where his lawyer slept and prosecutors presented not a piece of physical evidence, George McFarland returned to a Harris County courtroom Friday seeking a new trial.

State District Judge Charles Godwin scheduled the hearing to gather evidence on the effectiveness of the
second defense attorney in the case, who stayed awake but had never before tried a capital murder case.

After listening to attorney Sanford Melamed testify about his preparation for the 1992 trial, Godwin gave
prosecutors and defense attorneys 45 days to file briefs and said he would rule after reading them.

McFarland's current attorneys have asked the judge to throw out McFarland's conviction for the 1991 robbery
and murder of Houston grocer Kenneth Kwan. McFarland's constitutional right to representation was violated
because the main attorney in the case, John Benn, repeatedly fell asleep during the trial and Melamed was relying on Benn's leadership, they contend.

"You've got a lawyer in charge of the defense who was completely unprepared and unable to do the job and a
second whose understanding was he was supposed to follow the instructions of the first guy," defense attorney R. Paul Wickes said after the hearing.

Harris County prosecutors contend in a written response to McFarland's petition that he was adequately represented by Melamed during the trial. Assistant District Attorney Jack Roady declined to discuss the case following Friday's hearing.

Kwan, 43, was killed as he returned to his northside grocery store carrying a bank bag full of cash. He and
a private security guard were overpowered by at least three, and possibly four, armed robbers, and Kwan was
shot to death.

McFarland, 43, is the only person to be charged.

The case against him was built on the testimony of an eyewitness and McFarland's nephew, who said his uncle
talked about committing the crime.

The witness originally told police she could not identify the robber and then described an assailant much shorter and skinnier than McFarland, with a lighter complexion.

Since the trial, the nephew has recanted his testimony and said he gave it because he was pressured by police
and because he received favorable treatment from Harris County prosecutors in his own armed robbery
case. He also was paid $900 by Crime Stoppers.

All of these issues have been laid out in McFarland's request for a new trial. The hearing Friday focused on
competency of the defense raised by Melamed.

The U.S. 5th Circuit Court of Appeals ruled two years ago in the capital murder case of Calvin Burdine --
Houston's more notorious sleeping-lawyer case -- that a sleeping lawyer is akin to no lawyer at all. Thus, the quality of the defense raised by Melamed is integral to McFarland's contention that he did not receive a fair trial.

On the witness stand Friday, Melamed admitted his preparation for the trial was limited to reading the district attorney's file on the case, reading a book on capital defense strategies and observing other capital murder trials.

He did not contact a witness for the prosecution, familiarize himself with potentially exculpatory grand jury testimony or visit the scene of the crime. Nor did he prepare a case for the punishment phase of the trial.

"I did the best I could," Melamed said.

Roady noted that McFarland declined an opportunity to replace Benn with another attorney. Roady also
questioned Melamed about his experience at the time of trial, which did not include a capital murder trial
but did include 14 years of criminal law practice and 23 felony trials.


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