U.S., State Jurists Tangle in Next Phase of Sleeping-Lawyer Saga

The retrial of an accused murderer in Texas whose first lawyer slept through testimony has precipitated an unprecedented face-off between a federal judge and a state judge who refuses to reappoint the appellate lawyer who won the defendant a second chance at justice.

U.S. District Judge David Hitt- ner has ordered Texas District Judge Joan Huffman in Houston to explain why she won’t appoint Robert McGlasson to represent Calvin J. Burdine, who received the death sentence in 1984 for the stabbing death of his roommate.

In a separate order, Hittner directed Huffman to participate in court-supervised mediation to resolve the situation.

If no agreement is reached, Huffman has been ordered to come to court and explain why Hittner should not appoint McGlasson himself.

Experts on federal-state judicial relations and the death penalty said they were unaware of any instance where a federal judge had taken such action.

USC constitutional law professor Erwin Chemerinsky said it was “outrageous” for Huffman to refuse to appoint McGlasson. However, Chemerinsky also said he was unaware of any instance where a federal judge had attempted to compel a state court judge to appoint a particular lawyer in a murder case.

“This is extraordinary,” said Chemerinsky, who suggested that the case may become a test of how much power a federal judge has to effectuate earlier rulings.

Hittner, appointed to the federal bench in 1986, ordered a new trial for Burdine in 1999, saying his constitutional rights had been violated when his trial lawyer, Joe Frank Cannon, slept through significant portions of his murder trial. That decision was upheld by a federal appeals court. The U.S. Supreme Court declined to review it in June, paving the way for a retrial.

In the current clash, Hittner acted on Sept. 19 in response to a lawsuit filed two days earlier by the American Civil Liberties Union branch in Houston.

The ACLU contends that Huffman’s refusal to appoint McGlasson, who has represented Burdine for 15 years, is a violation of Burdine’s 6th Amendment right to the effective assistance of counsel. The ACLU also alleged that Huffman violated Burdine’s right to a fair trial by pushing the retrial forward very rapidly--originally scheduling it for Oct. 7.

ACLU attorney Annette Lamoreaux agrees that Hittner’s order against Huffman is “very unusual.” But she maintains that Hittner has the authority to ensure that his original decision is carried out.

“I think it reflects the seriousness with which Judge Hittner views this case,” Lamoreaux said. “ ... I hope that Judge Huffman will do the right thing and agree to appoint Mr. McGlasson.

“The reason one doesn’t find any cases where a federal judge gets involved in circumstances like these is because they haven’t had to,” Lamoreaux said. She maintains that Huffman’s refusal to appoint McGlasson is illegally disrupting the ongoing attorney-client relationship between the two men.

Burdine, 49, has said he wants McGlasson to stay on the case.

Although indigent defendants have the right to court-appointed counsel, as a general rule, they do not have the right to a lawyer of their own choosing.

However, there are several instances where state appeals courts have ordered a reluctant trial judge to appoint the same lawyer who won a retrial for a convicted murderer.

That did not happen in this instance, though. After Huffman initially refused to appoint McGlasson, the Texas Criminal Defense Lawyers Assn. asked the Texas Court of Criminal Appeals to order Huffman to appoint McGlasson.

The appeals court summarily denied the motion.

“One shouldn’t have to go to a federal court, but on occasions like this when a state judge doesn’t seem to understand that the United States Constitution applies to them, then I think a federal judge is the best person to acquaint them with that fact,” Lamoreaux said.

The Texas attorney general’s office, which is representing Huffman, conceded in court papers that Hittner has jurisdiction.

Just hours after Hittner ordered Huffman to come to his court, Huffman pushed Burdine’s trial back five months until March 3. But she did not change her position on the issue of appointing McGlasson.

Huffman refused to appoint McGlasson three months ago. She said McGlasson was not eligible to represent indigent clients, such as Burdine, because he is not on a recently created list of lawyers qualified to handle capital cases in Harris County. The list was assembled under rules promulgated under the state’s new Fair Defense Act.

Huffman said that, even though McGlasson was entitled to continue representing Burdine, she would not permit him to be paid with state funds. “I intend to follow the rules, as I believe I’m required to do,” Huffman said at a June 26 hearing.

McGlasson, who heads the death penalty appeals unit in the federal public defenders’ office in Atlanta, is a member of the Texas bar and once ran a death penalty project in the state. He has said he is willing to take a leave from his job to handle Burdine’s new trial, but he needs a court appointment so he can be paid for the work.

Huffman, who was a district attorney in Houston for 14 years before becoming a judge in 1998, has been criticized by numerous Texas attorneys, including sponsors of the Fair Defense Act. Her critics contend that she distorted the act’s purpose by refusing to appoint McGlasson, who has a long-standing relationship with Burdine, is a death penalty specialist and could handle the case more efficiently because he is so familiar with the record and the issues.

The Houston Chronicle has blasted Huffman in editorials, including one Sept. 20 that said she “seems indifferent to fairness.... No state law prohibits Huffman from giving Burdine a fair trial. Duty and the Constitution compel her to give him a fair trial, at least the second time around.”

Huffman declined to comment. Her court coordinator referred calls to the Texas attorney general’s office.

Assistant Atty. Gen. Daniel E. Maeso contends in court papers that Huffman is immune from suit because of her office. Maeso also contends that Burdine is not entitled to the attorney of his choice and, more specifically, is not entitled to have McGlasson as his lawyer.

So far, the attorney general’s office has issued no response to Hittner’s order for Huffman to participate in mediation starting in early October, under the supervision of a retired Texas state appeals court judge.