Burdine v. Johnson

RHESA HAWKINS BARKSDALE, Circuit Judge,

joined by EDITH H. JONES, JERRY E. SMITH and EMILIO M. GARZA, Circuit Judges, dissenting:

“Bad facts make bad law.” This is just such a case. The “bad facts” — the deplorable sleeping by Calvin Jerold Bur-dine’s court-appointed trial counsel, Joe Frank Cannon — have, I fear, driven the majority to make “bad law”. This is vividly demonstrated by the anomaly of the majority’s stating that, for presumed-prejudice purposes, the entire guilt phase of a capital murder trial is not a “critical stage” (one of its bases for maintaining that, in granting…