On Law

Jewish World Review Oct. 30, 2002 /24 Mar-Cheshvan, 5763

ACLU to appeal sleeping lawyer ruling

By Phil Magers

http://www.NewsAndOpinion.com | (UPI) A federal appeals court will be asked to rule in a Texas court dispute over legal representation for a death row inmate whose original lawyer slept through portions of his 1983 trial, an American Civil Liberties Union lawyer said Tuesday.

The federal judge who originally ordered a retrial for Calvin Burdine after uncovering the sleeping lawyer refused Monday to intervene in a state dispute over whether the lawyer who won the appeal should represent Burdine in his retrial next year.

Annette Lamoreaux, the East Texas director for the ACLU, said an appeal of U.S. District Judge David Hittner's ruling would be filed before the end of the week with the 5th U.S. Circuit Court of Appeals.

The ACLU sued to force a state judge to appoint Robert McGlasson, an Atlanta public defender, to represent Burdine in the retrial currently scheduled to begin next March. Hittner dismissed the lawsuit, saying it would not be proper to him to intervene in the ongoing state case.

McGlasson has represented Burdine for more than a decade in countless appeals and eventually won the retrial from Hittner two years ago.

"There is no way that any lawyer coming on this case tomorrow would have the knowledge of the case that Mr. McGlasson has nor would they have the same relationship with Mr. Burdine," said Lamoreaux.

State District Judge Joan Huffman has refused to appoint McGlasson because he is not on a list of approved defense attorneys authorized by the Texas Fair Defense Act. The ACLU argues that Burdine's constitutional rights supersede that law which applies only to crimes committed since Jan. 1, 2002.

"On it's face the Fair Defense Act states that whatever appointment procedures were in place at the time of the offense is what the court should use," Lamoreaux. "At that time, the courts has complete discretion as to who they appointed."

Burdine was sentenced to die for the 1983 stabbing of his roommate and lover W.T. "Dub" Wise in Houston. Attorney Joe Cannon, who has since died, slept up to 10 minutes at various times during the Houston trial.

In September 2000, Hittner ordered Burdine retried or released, but in an appeal to the 5th Circuit a three-judge panel reversed him, stating that the napping did not influence the outcome of the trial. That decision was appealed to the full court, which upheld Hittner's original ruling, and the U.S. Supreme Court refused to intervene last June.

In his decision, Hittner noted that a state judge thoroughly investigated allegations that Burdine's attorney failed to provide adequate legal service. The jury foreman, two other jurors and the court clerk all said they observed Cannon sleeping.

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