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Thread: George Edward McFarland - Texas Death Row

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    George Edward McFarland - Texas Death Row


    George McFarland


    George McFarland during an interview in 2003


    Facts of the Crime:

    George McFarland was convicted in the robbery and murder of Kenneth Kwan, the 43-year-old owner of a grocery store in Houston. Kwan, accompanied by a security guard, had just returned to his store from the bank with a large amount of money when he was approaced by McFarland and an accomplice. When McFarland disarmed the security guard, Kwan ran inside the store where he was robbed and shot to death.

    McFarland was sentenced to death in Harris County on September 29, 1992.

  2. #2
    Alexxx74
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    The Texas Court of Criminal Appeals dismissed McFarland's direct appeal in 1996 (State v. McFarland, 928, 482 SW2d TCCA 1996)--Justices Baird and Overstreet dissented.

    http://scholar.google.com/scholar_ca...02&as_ylo=1994

    Post-conviction review was denied in 2005 (ex parte McFarland 163 SW3d 743 TCCA 2005). Justices Baird and Overstreet no longer sat on the TCCA and there was no dissenting opinion.

    http://scholar.google.com/scholar_ca...02&as_ylo=1994

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    Administrator Helen's Avatar
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    Judge rejects appeal from Houston death row prisoner whose lawyer slept during trial

    One of the lawyers repeatedly slept through trial and the other had never handled a capital murder before. But last week a Houston federal judge decided that was good enough to keep George McFarland on death row, despite his longstanding claims of innocence and a conviction based largely on the testimony of a single, tentative eyewitness.

    The Harris County man was sentenced to die in 1992 for the slaying and robbery of a local grocer, a 43-year-old man gunned down while walking back to his store with a bag of cash from the bank. There was never any physical evidence tying McFarland to the murder, but his primary attorney only cursorily prepared for the case, barely consulted with co-counsel, put on no evidence and dozed through key parts of the whirlwind 4-day trial.

    "I'm 72 years old," former defense attorney John Benn later told a court. "I customarily take a short nap in the afternoon."

    The high-profile case sparked decades of legal wrangling and an award-winning movie, but it particularly resonated in Harris County in light of an earlier, more infamous sleeping lawyer case that helped usher in legislative changes to indigent defense and ended with the overturning of a local man's death sentence.

    Yet in McFarland's case, U.S. District Judge Lynn N. Hughes determined Tuesday that the attorney's dozing was "appalling" and "regrettable" – but in the end decided it didn't matter because at least 1 of the 2 defense attorneys was awake at all times, so the accused was never entirely without counsel.

    "It's amazing how cavalier the courts have been with regard to this case," said Yale Law School visiting lecturer Stephen Bright. "It's unconscionable."

    Tuesday's opinion came more than a decade after the case landed in Hughes' court but, for unclear reasons, the jurist did not make a decision until months after a Houston-area activist wrote a higher court to complain about the delay.

    Rusty Herman, McFarland's current attorney, did not immediately respond to a request for comment.

    On an unseasonably warm night in late 1991, a robbery crew gunned down Kenneth Kwan, the owner of C&Y Grocery north of Loop 610. The father of 3 was on the way back from the bank with $27,000 in hand when a robbery crew opened fire.

    Carolyn Bartie, a civilian worker at the Houston Police Department, was a regular customer who happened to be sitting outside to witness the whole shooting. Early on, she tentatively identified McFarland in a photo line-up – though her initial description of the shooter didn't match the man accused.

    None of the alleged accomplices was arrested or ever testified, and no prints or physical evidence tied any of the suspects to the crime.

    Still, McFarland - who had a criminal background and a history of drug use - was arrested six weeks later after his teenage nephew called Crime Stoppers and said he'd heard the older man confess to a robbery. The teen later recanted, after McFarland had already been sent to death row.

    For trial, McFarland hired Benn based on the recommendation of friends. But the elderly attorney hadn't tried a capital case in more than two decades, and started nodding off during jury selection. When the judge spotted the potential problem, he appointed Sanford Melamed – who had no capital experience – as co-counsel.

    When asked if he'd really been snoozing during trial, Benn first said the court proceedings were just "boring" and later contended that he'd been "thinking," not napping. But, unlike in the other sleeping lawyer case - where Joe Cannon dozed throughout Calvin Burdine's trial - McFarland had a 2nd attorney, and the courts so far have zeroed in on that.

    Generally, the judge conceded, lawyers should not sleep during trial.

    "The court does not approve of a sleeping lawyer," Hughes wrote. "This is unacceptable by an attorney in any case and particularly in a case of this magnitude."

    But in this case, Texas courts already found that it didn't matter because at least 1 of the 2 attorneys was awake - even though other attorneys later alleged Melamed was badly prepared.

    "This is not a case where the trial court ignored a defendant's constitutional rights," Hughes wrote. "The prosecution engaged in no misconduct. While not perfect, the attorneys made efforts to defend McFarland. Viewing the evidence and McFarland's choice in trial, McFarland has not shown that a different strategy would have ended in a different result. It is regrettable that Benn slept through trial. That does not change the fact that the court of criminal appeals did not misapply the law."

    (source: Houston Chronicle)
    "I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, the guillotine or being fed to the lions."
    - Oklahoma Rep. Mike Christian

    "There are some people who just do not deserve to live,"
    - Rev. Richard Hawke

    “There are lots of extremely smug and self-satisfied people in what would be deemed lower down in society, who also deserve to be pulled up. In a proper free society, you should be allowed to make jokes about absolutely anything.”
    - Rowan Atkinson

  4. #4
    Moderator Bobsicles's Avatar
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    COA granted by the Federal District Court.

    https://law.justia.com/cases/federal...020-07-13.html
    Thank you for the adventure - Axol

    Tried so hard and got so far, but in the end it doesn’t even matter - Linkin Park

    Hear me, my chiefs! I am tired. My heart is sick and sad. From where the sun now stands, I will fight no more forever. - Hin-mah-too-yah-lat-kekt

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    Administrator Moh's Avatar
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    On November 1, 2021, oral argument will be heard in McFarland's appeal before the United States Court of Appeals for the Fifth Circuit.

    https://www.ca5.uscourts.gov/oral-ar.../Details/1484/

  6. #6
    Moderator Bobsicles's Avatar
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    The Fifth Circuit has denied McFarland’s appeal and affirmed the district court’s denial of his habeas petition.

    https://law.justia.com/cases/federal...022-02-14.html
    Thank you for the adventure - Axol

    Tried so hard and got so far, but in the end it doesn’t even matter - Linkin Park

    Hear me, my chiefs! I am tired. My heart is sick and sad. From where the sun now stands, I will fight no more forever. - Hin-mah-too-yah-lat-kekt

    I’m going to the ghost McDonalds - Garcello

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    Ogg not interested?

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    Senior Member Frequent Poster Shep3's Avatar
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    Don’t know yet cause he still has to go through asking for en banc review and then scotus so not done with appeals yet

  10. #10
    Administrator Moh's Avatar
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    The panel affirming McFarland's conviction and death sentence was made up of Senior Judge Higginbotham (Reagan), Judge Southwick (G.W. Bush) and Judge Willett (Trump).

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