Fast Food Style Death Penalty Defense
Joe Frank Cannon, acting as a court-appointed attorney, has "defended" eight men who currently await execution in Texas, two other former clients have already been put to death. His strategy for those capital punishment cases is simple: work fast.
"Juries don't like a lot of questioning, all of these jack-in-the-box objections, going into every little detail, so I've never done it," explains the veteran lawyer. He openly boasts of hurrying through trials like "greased lightening."
Harris County judges are elected by popular vote, rather than being appointed to the bench. The judges have complete control over appointing and supervising attorneys in death penalty cases. Some judges, concerned about budgets and docket backlogs, appoint attorneys who are known for trying cases rapidly rather than zealously. District Judge Miron Love has said, "The number of death penalty cases currently pending could cost taxpayers a minimum of $60 million."
Mr. Cannon discovered that by working as fast as possible, he could gain more appointments from those judges worried about budgets and crowded dockets. He has in fact explicitly marketed his fast approach to trying murder cases.
Veryl Brown, a former Harris County prosecutor, swore in a 1988 affidavit filed in the Houston federal district court that four years earlier, he had witnessed a conversation between Cannon and then-Judge Joseph Guarino, in which Cannon asked to be appointed to the capital murder trial of Jeffrey Modey. "Mr. Cannon represented to the judge that if he was appointed he could have the case completely tried within two weeks," Mr. Brown stated in his affidavit. Cannon was subsequently appointed to the case, which was tried in 19 days and resulted in a death sentence.
Candelario Elizondo, a past president of the Harris County Criminal Lawyers Association, swore in a 1988 federal court affidavit that it is "generally reputed in the Harris County legal community" that Mr. Cannon received capital appointments "because he delivers on his promises to move the courts' dockets."
In a how-to article written by Mr. Cannon years ago, he scorned death penalty defense attorneys who "slavishly `follow the book' for weeks or months" in the courtroom. To illustrate his fast food approach to capital defense, he pointed to the 1981 case of Willie Williams. With relatively light questioning by Cannon and his junior co-counsel, a jury was selected in just five days - three or four times faster than was, or is, typical in the Harris County Courthouse. The trial consumed only parts of two days. After deliberating for only four hours, the jury returned a death sentence.
As America watches with fascination how the criminal justice system works in the O.J. Simpson murder trial, they will see a rich defendant buttressed by the best attorneys that money can buy. Most people fail to realize that the vast majority of defendants in death penalty cases are too poor to retain their own attorney. They must rely on whatever defense is put up by the attorney appointed to them defense by the court. In Texas, these publicly paid attorneys receive only a modest fee, just $10,000 for a typical murder trial, or up to $40,000 for one that lasts several months.
Stephen Bright, an Atlanta based capital-punishment defense expert, wrote in the Yale Law Journal that "Poor people accused of capital crimes are often defended by lawyers who lack the skills, resources and commitment to handle such serious matters." Citing court records, he gave several examples including:
An Alabama lawyer who was so drunk during a capital trial that the judge found him in contempt and sent him to jail. After a day's delay, the lawyer returned, the trial proceeded and the death penalty was imposed.
A Georgia lawyer who missed key testimony of a witness he subsequently cross examined because he was outside the courthouse parking his car.
Attorneys from Texas and elsewhere who, in front of juries, referred to their clients as "niggers" or "wet backs."
Mr. Cannon, now 75 years old, has been known to sleep in court during more than one of his capital murder trials. He denies this, but the allegations are supported by affidavits from, among others, a former assistant who at the time of the trial was only a few weeks out of law school. Appellate lawyers trying to have the 1984 conviction of Calvin Burdine overturned noted that Mr. Cannon's case file contained only three pages of hand written notes. Cannon asserts that the appellate attorneys intentionally lost or destroyed the rest of his notes, though he concedes that "nobody would believe me."
In the Burdine case, Cannon made plain legal blunders. In one meandering cross examination of a police detective he opened the door to otherwise inadmissible testimony portraying his client as the leader, rather than the follower, in a two-man robbery that resulted in murder. "It was an incredible blunder, which there is no justification for," says Randy McDonald, a former prosecutor who defended Burdine's crime partner. Burdine is now on death row. His partner, even though evidence indicated he was responsible for at least one of the fatal knife thrusts, got a 40-year sentence.
Critics point to sloppy work on vital legal procedures in other cases tried by Cannon. Consider the case of Carl Johnson, now on death row, who was another Cannon client. Johnson was convicted of robbing a convenience store and fatally shooting a security guard, who had fired his weapon at Johnson first. Johnson claimed he pulled the trigger only out of reflex and didn't mean to kill. But Mr. Cannon failed to inform jurors that they could spare his life if they found his actions to be a "reasonable" response to provocation.
In its opinion reviewing the case, the Texas Court of Criminal Appeals said unequivocally that the evidence "raised the issue of provocation" and that the trial judge should have explained this potentially life-saving point to the jury. Ordinarily such a clear mistake would be grounds for setting aside a death sentence. But because Mr. Cannon failed to mention the concept of provocation at trial, the court said, Mr. Johnson was barred from bringing the issue up on appeal.
Harris County continues to try capital murder cases at a record pace. Although Mr. Cannon is no longer taking capital murder cases, his low-budget, fast food approach to trying cases must still be used by his successors. How else can Harris County try capital cases at such a record setting pace? Maybe they should put a sign out front of the courthouse that says "33 Fried So Far." But maybe their already strapped budget would not be able to support the labor incurred changing the numbers on the sign every time the executioner fries a new victim.
Wall Street Journal, 9/7/94