The continuing march by the State of Texas to execute George Edward McFarland adds to the often-repeated phrase associated with death penalty cases, “only in Texas.” 


Texas has probably executed at least ten innocent people (far more than any other state). The Lone Star State has executed five men who did not personally kill anyone. The state even executed a man for a murder to which another man had confessed to, pled guilty for, and was serving a life sentence due to the murder.


“Only in Texas,” as they say.


George McFarland’s case falls into the “only in Texas” category.


Here are the core facts surrounding McFarland’s death penalty conviction:


  • On November 15, 1991, a Houston store owner named Kenneth Kwan and his security guard, James Powell, were the victims of an armed robbery.
  • Two Black men perpetrated the robbery—one masked, the other not.
  • Kwan was killed during the robbery with five gunshot wounds, three of which could have been fatal.
  • There were five witnesses to the robbery: two customers inside Kwan’s store, Kwan’s wife, Powell, and a friend of Kwan (Carol Bartie), who was sitting in a vehicle parked outside the store. Four of the witnesses told the police they could not identify either suspect, while Bartie expressed serious uncertainty about being able to identify either suspect.
  • On November 19, 1991, McFarland’s nephew, Craig Burks, called Houston’s Crime Stoppers and implicated McFarland, Albert Harris, and Michael Clark in the robbery/murder of Kwan. Burks would later offer sworn testimony that McFarland confessed to him that he killed Kwan. But Burks also stated that McFarland admitted to him that Albert Harris killed Kwan.


Inconsistencies and Uncertainty


The ensuing police investigation led to a Harris County magistrate issuing an arrest warrant for McFarland on January 2, 1992. The following day, Bartie identified McFarland in a photo spread and physical lineup as one of the robbers and the shooter of Kwan, despite the inconsistencies in her statements given to the police on the date of the offense. 


McFarland was not represented by counsel during these January 3 lineups. The right to counsel in Texas does not attach until a formal criminal complaint is filed, per Texas Court of Criminal Appeals precedent. That complaint was not filed against McFarland until the following day, January 4.


After his arrest and police lineups, McFarland retained a longtime Houston criminal defense attorney to represent him on the capital murder charge—72-year-old John Benn, who had never represented a client charged with a capital murder case under Texas’ new death penalty statutes. 


The trial judge appointed Sanford Melamed as “second chair” counsel but with the caveat that Benn would act as “lead counsel” in charge of the defense. The two attorneys had little contact before their client’s trial. It’s not certain if they ever spoke to each other about the case.


Counsel Napped During Death Penalty Trial


During McFarland’s August 1992 trial, Benn’s trial performance was a study in incompetence as he continuously displayed his factual and legal unpreparedness before the court and the jury. Worse yet, the attorney slept throughout significant portions of the trial with a court bailiff repeatedly having to nudge him awake in the jury’s presence.


Not surprisingly, McFarland was convicted of capital murder and sentenced to death. His conviction and sentence were upheld four years later on direct appeal by the Texas Court of Criminal Appeals (TX Crim App). The appeals court casually dismissed Benn’s sleeping throughout significant portions of the trial as appropriate naps because McFarland’s “second chair” counsel was awake during Benn’s sleeping sessions.


The TX Crim App’s cavalier handling of the sleeping issue failed to consider that the trial judge specifically instructed “second chair” counsel to follow the lead of primary counsel, Benn. 


In 2005, the TX Crim App had a second look at Benn’s sleeping issue in a post-conviction habeas setting. The appeals court concluded: “We agree that applicant did not have Mr. Benn’s active assistance during his postprandial naps and that those naps occurred during ‘critical stages’ of his trial.”


But the TX Crim App once again said since “second chair” counsel was wide awake during Benn’s “postprandial naps,” McFarland did not suffer any “prejudice” because, as Benn himself put it, the 72-year-old attorney liked taking “afternoon naps,” even during a death penalty trial.


On February 14, 2022, the Fifth Circuit Court of Appeals, in a ruling indicative of that court’s political ideology, agreed with the TX Crim App. The appeals court pointed out that it could not locate any case “where a sleeping co-counsel” would trigger the kind of prejudice needed to upset a guilty verdict. 


Against that legal backdrop, the Fifth Circuit concluded that McFarland had failed the surmount the high bar of deference the federal court had to give to the TX Crim App’s handling of the sleeping counsel issue.


Sleeping Lawyer More Dangerous Than Absent One


The Fifth Circuit’s ruling in the McFarland case is head-scratching because more than two decades ago, the court reversed a death penalty conviction obtained against Calvin Gerold Burdine by Harris County prosecutors because Burdine’s appointed counsel “slept repeatedly throughout the guilt-innocence phase of his 1984 capital murder trial.” 


In the Burdine decision, the majority of the court found that “a lawyer asleep in the courtroom is more harmful than one who is physically absent.” However, justices dissented vigorously, concluding much like the TX Crim App that an attorney sleeping during a death penalty trial does not necessarily result in the trial “losing its character as a confrontation between adversaries, nor [does] it render the trial fundamentally unfair.”


“Only in Texas” can you find two death penalty cases where attorneys slept during the trials. Both cases were prosecuted by the Harris County District Attorney’s Office under the leadership of Johnny Holmes, a district attorney. His 21-year career as D.A. was marred with innumerable instances of prosecutorial misconduct. The Holmes DA’s Office obtained more than 200 death penalty convictions, resulting in executions of at least seven innocent men for crimes they did not commit.


There is a singular, although stark, contrast in the Burdine/McFarland cases.


Many believed that Burdine, an openly gay white man, was targeted by Holmes for prosecution because of Burdine’s sexual orientation. The prosecutor argued against a life sentence and said prison is “fun” for gay men.


On the other hand, Holmes targeted McFarland, a black man, for prosecution in the Kenneth Kwan murder case because he was the “most criminal” of the three black men suspected of being involved in Kwan’s murder.


Here’s the social rub in the two cases: 


Burdine, the white man, was given a new trial and released from death after more than two decades of custody. McFarland, the black man, was denied a new trial and remains on death row, where he has been for more than 29 years. 


Burdine, the white man, was freed; McFarland, the black man, will be executed.


Holmes’ prosecutors in both cases never conclusively proved beyond a reasonable doubt that either Burdine or McFarland were the actual killers. Both were the only ones chosen for prosecution, although other suspects could have been the actual killers. 


But there is one undeniable similarity in both cases: the two men were convicted and sentenced to death because their attorneys slept during their trials.


Yet, “only in Texas” will the courts allow the white man to go free while sending the black man to the death house.