-Caveat Lector- November 2, 2000 IN AMERICA Medieval Justice By BOB HERBERT When President George Bush nominated Clarence Thomas to fill a vacancy on the Supreme Court in 1991, one of the other candidates on the president's very short list was a federal judge from Texas named Edith Jones. Ms. Jones, who sits on the Court of Appeals for the Fifth Circuit, is now frequently mentioned as a possible Supreme Court nominee if George W. Bush is elected president. She is a right-winger in the mold of Mr. Thomas and Antonin Scalia, the two justices Mr. Bush admires most. Like Mr. Thomas, Ms. Jones is controversial. She was part of a three-judge panel that ruled on a gruesome sexual harassment case in 1988. The plaintiff had alleged that her supervisor and others had repeatedly propositioned her, that she was groped and grabbed, that obscene comments about her were played over the company's public address system, that pornography was placed in her locker and she was the subject of obscene graffiti scrawled on the company's walls. That, according to the plaintiff, constituted a hostile work environment. Judge Jones seemed to find it significant that some of the plant's employees were blue-collar workers, as opposed to "lawyers" or other "white-collar" workers. "We're dealing with people whose standards are different," she said. The plaintiff's lawyer noted that her client had complained when "one of the guys pinched her breast." Judge Jones replied, "Well, he apologized." There were gasps in the courtroom. Two members of the panel ruled in favor of the plaintiff. Judge Jones ruled against her. Last week Ms. Jones was in the news again. On another three-judge panel she ruled with the majority that it's O.K. to execute a man even though his court-appointed lawyer slept through substantial portions of his trial. The decision overturned the ruling of a Federal District Court judge, David Hittner, who said the defendant, Calvin Burdine, was entitled to a new trial. "A sleeping counsel is equivalent to no counsel at all," said Judge Hittner. Texas's sleeping court-appointed lawyers have become notorious. George W. Bush was asked about the Burdine case not too long ago. He said the fact that Judge Hittner had overturned the conviction showed that "the system worked." But Judge Jones and Judge Rhesa Barksdale, in their 2-to-1 ruling last Friday, reversed Judge Hittner's decision. They acknowledged that the lawyer, Joe Frank Cannon (who is now deceased), fell asleep at various times during the trial. But they ruled that there was no way to determine whether that was actually harmful to Mr. Burdine. One juror testified that Cannon was asleep during "quite a bit" of the trial. And a court clerk testified that she had seen him sleeping "a lot" and "for long periods of time" during the questioning of witnesses. But Judge Jones and Judge Barksdale said it was impossible to determine just when Cannon was sleeping. Thus, there was no way to know whether anything prejudicial to his client occurred while Cannon slept. The opinion said: "In sum, on this record, we cannot determine whether Cannon slept during a 'critical stage' of Burdine's trial." They rejected the idea that when a man's life is at stake, every stage of the trial is critical. The third member of the Circuit Court panel, Fortunato Benavides, wrote a blistering dissent: "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." This is like something from the Dark Ages. To execute someone after a trial in which his lawyer doesn't even bother to remain awake is barbaric. Mr. Burdine's current lawyer, Robert McGlasson, summed the matter up neatly. "Justice asleep is justice denied," he said. He plans an appeal. Meanwhile, Edith Jones, her right-wing bona fides all but impeccable, is free to contemplate the blissful possibility of joining her judicial soul mates Clarence Thomas and Antonin Scalia on the highest court in the land. <A HREF="http://www.ctrl.org/">www.ctrl.org</A> DECLARATION & DISCLAIMER ========== CTRL is a discussion & informational exchange list. Proselytizing propagandic screeds are unwelcomed. Substance�not soap-boxing�please! 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