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In a case that could have implications for indigent defendants’ rights, a federal court will decide whether a trial judge, acting under color of state law in a criminal proceeding, may interfere with a long-standing attorney-client relationship. Calvin Burdine, the Texas inmate whose 1984 capital murder conviction was overturned because his lawyer slept through significant portions of the trial, wants the attorney who represented him during the 15-year legal battle to be appointed to represent him in the retrial. On Sept. 16, the American Civil Liberties Union filed a suit against state District Judge Joan Huffman because she has refused to appoint Robert L. McGlasson, an Atlanta federal public defender who won a new trial for Burdine. Burdine v. Huffman asks the U.S. District Court for the Southern District of Texas to intervene and prevent Huffman, presiding judge of the 183rd District Court, from violating Burdine’s constitutional rights. The suit says the Doctrine of Judicial Immunity doesn’t prohibit the federal court from granting an injunction against Huffman. According to 42 U.S.C. 1983, injunctive relief can’t be granted against a judicial officer acting in his or her judicial capacity unless declaratory relief was unavailable. Burdine argues in the suit that he doesn’t have time to obtain declaratory relief because his trial date originally was set for Oct. 7. That argument may have been defused on Sept. 19, when Huffman issued an order resetting Burdine’s trial for March 3, 2003. In 1999, U.S. District Judge David Hittner of Houston determined that Burdine’s Sixth Amendment rights to effective assistance of counsel and a fair trial were violated because his attorney, the late Joe Frank Cannon, dozed off during the trial. Burdine had been convicted and sentenced to die for the 1983 robbery and murder of his former roommate, W.T. “Dub” Wise in Houston. Hittner granted habeas corpus relief and ordered the state to retry Burdine or release him. “Mr. Burdine’s Sixth Amendment rights are faring no better this time around than they did two decades ago,” the ACLU alleges in the suit. Annette M. Lamoreaux, the ACLU’s East Texas regional director, says the suit asserts a 42 U.S.C. 1983 civil rights claim brought as a related case to the underlying federal habeas corpus action. Burdine asks the federal court to enforce its habeas judgment under 28 U.S.C. 2254 and order Huffman to appoint McGlasson to represent Burdine at the upcoming trial. Huffman’s refusal to allow McGlasson to be the appointed counsel is a clear violation of Burdine’s Sixth Amendment rights, the suit alleges. “It would be a travesty of justice for Mr. Burdine, after all this time, to have his constitutional rights violated again,” says Lamoreaux, lead attorney for the federal suit. Huffman declines comment on the suit because Burdine’s case is pending in her court, says Barbara Sims, the judge’s court coordinator. Burdine alleges that Huffman’s refusal to appoint McGlasson as Burdine’s counsel on retrial and her rushing of the case to trial inevitably will prevent Burdine from receiving a fair trial. On Sept. 17, the Harris County Criminal Lawyers Association sent an open letter to the criminal court judiciary in Houston to protest the Oct. 7 trial date. That would make Burdine’s case “the fastest capital case in Harris County history,” according to the letter. Danalynn Recer, a Houston solo who represents Burdine pro bono, says she had been given only 96 days to prepare for the trial. “No one could prepare in this amount of time,” Recer says. “Most people want at least six months,” says Cynthia Henley, president-elect of the HCCLA. Paula Storts, the assistant Harris County district attorney who will prosecute Burdine, declines to comment on Burdine’s suit. Huffman had intended to appoint an attorney to represent Burdine, but Recer announced on July 3 that she would take the case on an interim voluntary basis because the judge wouldn’t reappoint McGlasson. Basing her decision on the Texas Fair Defense Act, which took effect in January, Huffman said at a June 26 hearing that McGlasson wasn’t eligible for appointment because his name did not appear on the list of qualified Harris County capital defense lawyers. McGlasson, who declines to comment because he is the focus of Burdine’s federal suit, previously said that his name isn’t on the list because, while he practices some in Texas, he lives in Georgia and had no occasion to apply to be on the list. In essence, Huffman denied Burdine’s Sixth Amendment right to have counsel of his choice, says David Botsford, an Austin criminal defense attorney. “The attorney with the most knowledge of the case, the most significant knowledge of the client is being stripped off the client’s defense team,” Botsford says. Rick Hagen, a Denton criminal defense lawyer and partner in Jackson & Hagen, believes Huffman’s interpretation of the Fair Defense Act as applied to Burdine is unconstitutional. The law “was never intended to remove counsel; it was intended to allow folks to have qualified counsel,” Hagen says. Stephen Bright, director of the Southern Center for Human Rights in Atlanta, says the law is being used to keep the most qualified lawyer off Burdine’s case. RIGHT TO CHOOSE Burdine alleges in his suit that McGlasson has practiced full time in the area of death penalty defense litigation since 1983. McGlasson has been employed with the Federal Defender program in Atlanta since January 2000 and serves as its supervising attorney for the Capital Habeas Unit, the suit says. Although Huffman said at the June 26 hearing that he could remain as Burdine’s attorney, but would not be appointed and paid by Harris County, McGlasson said he couldn’t handle the case effectively unless appointed, according to a transcript of the hearing. While the right to choose one’s counsel generally hasn’t been extended to indigent defendants seeking the initial appointment of an attorney, Burdine isn’t like most pretrial detainees because his case already has “an exceedingly long and complicated history,” the suit alleges. As alleged by Burdine, McGlasson’s considerable experience in complex capital matters and “unique familiarity” with Burdine’s case outweigh other interests that, under other circumstances, might warrant appointing a new attorney. According to the suit, numerous courts have cited “attorney of choice” laws in holding to the principle that an indigent criminal defendant has a right to maintain, through court appointment, an ongoing attorney-relationship in a criminal proceeding. In 1989, the Georgia Supreme Court in Amadeo v. State ruled that a trial court abused its discretion in refusing to appoint Bright and Atlanta defense attorney Bill Warner for the retrial of a Georgia man after the two lawyers successfully challenged his murder conviction and death sentence at the U.S. Supreme Court. In his suit, Burdine alleges the Texas Court of Criminal Appeals in the past has emphasized the importance of preserving and safeguarding an existing relationship between an indigent accused and his appointed counsel. In 1989, the CCA held in Stearnes v. Clinton that once a valid appointment is made in a criminal case, the attorney becomes the defendant’s attorney of choice and a trial judge cannot arbitrarily remove that attorney. However, the Court of Criminal Appeals rejected a joint request by the Texas Criminal Defense Lawyers Association and National Association of Criminal Defense Lawyers, acting on Burdine’s behalf, to compel Huffman to appoint McGlasson for the retrial. With Judge Paul Womack and Judge Cheryl Johnson not participating, on Aug. 13 the court denied the motion for leave to file a writ of mandamus. Hagen, who filed the motion for the TCDLA and NACDL, says he believes Burdine’s suit has a “good chance.” Because Burdine’s retrial is imminent, the suit asks the federal court for a preliminary injunction — and ultimately a permanent injunction — ordering Huffman to appoint McGlasson to represent him in the pending capital case. In a Sept. 19 order, Hittner directed Huffman to file briefs responding to the suit by noon this Tuesday. Hittner scheduled a show-cause hearing for 1:30 p.m. this Friday in federal court.

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