Calvin Burdine, whose case we have been following here and here has filed suit in federal court seeking an injunction against state court Judge Joan Huffman to have his long-time counsel who was successful in reversing his murder conviction represent him in his retrial.

"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. "

There will be a hearing in federal court on the injunction next Friday.

We see no reason to keep Mr. McGlasson off the case. "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."

While the Sixth Amendment right to counsel of choice has not been construed as applying to indigent defendants when it comes to the appointment of counsel to represent them, this case is different. Here, there is already an established long-term relationship and the issue is keeping a lawyer on the case as opposed to appointing a new one. The intent of the Texas Fair Defense Act was to allow defendants to have competent counsel, not to remove them.

We think the federal court should give Mr. Burdine his lawyer back.

Thursday we complained about Houston Judge Joan Hoffman's insistence that the murder re-trial of Calvin Burdine take place 90 days after his new lawyer got on board. Defense lawyers in Houston wrote the Court in protest.

A brief recap of events until now: Calvin Burdine is the inmate on Death Row in Texas who had his state conviction reversed by the Fifth Circuit Court of Appeals because his lawyer slept through the trial. Then, the lawyer who had worked for fifteen years to reverse his conviction was disqualified from re-trying the case because Harris County, Texas hasn't certified him as a capital defense lawyer. So a new lawyer was appointed. The trial judge was trying to force the new lawyer to be ready for trial in this 20 year old capital case 96 days after she was appointed.

We're pleased to report the Judge has agreed to move the trial from October to March, 2003. Charles Kuffner alerted us to this editorial in yesterday's Houston Chronicle criticizing the Judge. Here's a quote from it:

"Until Thursday, Huffman declined to grant a continuance to allow Burdine's new lawyer, Danalynn Recer, to prepare. The trial is now set for a reasonable March 3, instead of Oct. 7. "

"Judge Huffman's behavior to date exhibits either callous indifference to fairness or the indulgence of personal pique unbecoming of a judge. What would cause Huffman to reason that Burdine, undefended by a sleeping lawyer in his first trial, deserves a weaker than necessary defense at his second? What made her hesitate to grant a reasonable continuance? "

"State District Judge George Godwin, chief administrative judge of criminal district courts in Harris County, accused Burdine's supporters of whining, but there's no shame in decrying injustice. The shame is in ignoring it, as Godwin seemed eager to do. "

"Judge Huffman could easily correct her mistake by appointing McGlasson to assist in Burdine's defense, just as she gave in and granted the defense time to prepare. 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."

How about it, Judge Hoffman? Give Mr. Burdine his counsel of choice. It's the right thing to do.

Matthew Yglesias cuts to a core issue in his post today on the Michael McConnell nomination.

A quote:

"The poor babies at the Washington Post are sad, sad, sad that Michael McConnell might not get to be a judge even though he's really smart and went to good schools and has some smart liberal professor friends. Said smart friends are contrasted with dastardly "liberal advocacy groups" with the crazy notion that protecting the rights of women, religious and racial minority groups, consumers, the poor, and the environment is more important than protecting the rights of smart intellectuals to become judges. This is really the worst kind of liberalism and the worst kind of rationale for inaction."

Addition: Via Hamster, we found Jack Newfield's article on the judicial selection process in the Sept. 19 issue of the Nation. It is very long and thorough but we liked the ending so much we are going to reprint it here:

"During America's first century, one of every four Supreme Court nominees was rejected by the Senate. The Founding Fathers gave the Senate the power of advise and consent for judicial nominees for sound reasons involving checks and balances among the branches of government that are elected and appointed.

Applying Herman Melville's "No! in thunder" to the extremist nominees for lifetime appointments is as American as baseball, the blues and the Constitution itself."

As anticipated, the ACLU and several civil liberties organizations have filed an amicus (friend of court) brief in the review court considering the FISA Court's order in May, 2002 that rejected the Justice Department's May, 2002 guidelines allowing FISA warrants to be sought for physical and electronic searches and seizures when law enforcement as opposed to intelligence gathering was the primary purpose for the intrusion.

"Both the lower court and Congress have now said that Attorney General Ashcroft has gone too far in his interpretation of what the law allows," said Ann Beeson, Litigation Director of the Technology and Liberty Program of the American Civil Liberties Union, which filed the brief together with the Center for Democracy and Technology, the Center for National Security Studies, the Electronic Privacy Information Center, the Electronic Frontier Foundation, and the Open Society Institute."

"No one is questioning the government's authority to prosecute spies and terrorists," Beeson added, "but we do not need to waive the Constitution to do so."

"Under the proposed guidelines, "the Attorney General could suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans' homes and offices," said James X. Dempsey, Deputy Director of the Center for Democracy and Technology."

"As the Supreme Court said when it last considered wiretap limits, the brief noted, "The price of lawful public dissent must not be a read of subjection to an unchecked surveillance power."

"The groups urged the FISC Review Court to uphold the seven- judge panel of the Foreign Intelligence Surveillance Court, which in May unanimously rejected the government's bid for expanded powers."

More details on the controversy can be found on several of our earlier posts, including this one.

A few months ago we wrote about an Ohio judge who held a public defender in contempt for refusing to disclose what a deceased client may have told her in confidence about the disappearance of a missing 9-year-old girl named Erica Baker.

Today, the Ohio Appeals Court ruled that the public defender must give up the information.

From the AP article:

"The 2nd Ohio District Court of Appeals sided Thursday with a judge who held public defender Beth Lewis in contempt for refusing to tell a grand jury whether her client talked about Erica Baker's disappearance. Lewis contends such testimony would violate attorney-client privilege."

"Lewis represented Jan Franks, who died of a drug overdose last year. Investigators think Franks may have known something about the girl's disappearance based on information from a jail informant. Prosecutors were never able to establish a connection, but they want to know if Franks told anything to her attorney."

"Under Ohio law, a surviving spouse or a trustee of a client's estate can give permission for a lawyer to reveal the client's conversations. Franks' husband agreed to waive the attorney-client privilege."

"Lewis' attorney argued that the exception is intended only for probate matters, such as questions involving a will, and doesn't apply to the current case."

"In its unanimous ruling, the three-judge appeals court interpreted the law to mean that the attorney may be compelled to testify when surviving spouses give consent."

The order is stayed so that Lewis can appeal to a higher Ohio Court.

Howard Bashman says the opinion isn't up yet, but he'll post a link on How Appealing when it is.

[comments now closed]

The AP reports that the Supreme Court of Washington State has issued a new ruling on the state's voyeuerism law.

"Photographing or videotaping up a woman's skirt in a public place doesn't violate a voyeurism law, the state Supreme Court ruled Thursday. The unanimous ruling found that the law only protects people in places where they have a reasonable expectation of privacy. The court rejected prosecutors' arguments that people reasonably expect privacy under their clothing."

In unanimously reversing the convictions of two men, one of whom took the photos with plans to sell them on the internet, the Court ruled (in an opinion authored by one of four women judges on the court):

"Although Glas' and Sorrells' actions are reprehensible, we agree that the voyeurism statute, as written, does not prohibit upskirt photography in a public location."

You can access the full opinion on the court's website.

Calvin Burdine is the inmate on Death Row in Texas who had his state conviction reversed by the Fifth Circuit Court of Appeals because his lawyer slept through the trial.

Then, the lawyer who had worked for fifteen years to reverse his conviction was disqualified from re-trying the case because Harris County, Texas hasn't certified him as a capital defense lawyer.

So a new lawyer was appointed. Now the trial judge is trying to force the new lawyer to be ready for trial in this 20 year old capital case 96 days after she was appointed.

The Harris County Criminal Lawyers Association says the time constraint is unheard of and impossible to meet. No one could be ready to try the case in that short of period of time.

"In an open letter of protest to local judges circulated Wednesday, the Harris County Criminal Lawyers Association said that no attorney can provide a satisfactory defense in a capital murder case with just 96 days of preparation."

" 'This is especially true where the case is almost 20 years old, where there are voluminous records and materials to digest and research, and where the attorney who represented Mr. Burdine for the last 15 years has not been permitted to remain as (his) court-appointed counsel,' the letter states."

"Signed by more than 40 local defense lawyers, the letter asserts that Burdine's case would be the quickest capital case to go to trial in Harris County history."

As one local lawyer said, "It's very ironic that the case that got the Harris County capital murder system its worst publicity and most embarrassment is now on this fast track to the same sort of justice. It should be just the opposite."

The ACLU has filed suit against the Judge, both for not allowing Burdine his choice of counsel and for rushing the trial date.

The chief administrative judge for Harris County has said "nobody has proved to him that a proper defense cannot be prepared in three months, even though he does not remember hearing of a capital case going to trial in such a short span."

Since the death penalty was reinstated in 1976, Texas has executed 281 inmates, more than triple the number of Virginia, which ranks second. In 2002, Texas has accounted for half of all the executions in the country.

Harris County is a pipeline to death row. If it were a state, it would rank third in the country for the number of executions, behind only Texas and Virginia. Harris County has more people on death row than 31 of the 38 states that have the death penalty.

As the Houston Chronicle reported in a special series of articles on the death penalty last year, "In Harris County, the difference between life and death often has little to do with the moral weight of the crime. It has everything to do with how easy a death sentence is to secure."

Calvin Burdine deserves a fair trial. He's waited 20 years for one. The Judge can wait a little longer than 96 days to ensure he gets one. The State of Texas owes him that. Burdine is getting a raw deal and Harris County is going to get another black eye.

The California Supreme Court has appointed a legal guardian for a severely mentally ill death row inmate who claims there is a computer in his head and a telephone in his shoulder.

The appointment is without precedent in California and could impact whether the inmate is ever executed.

"The appointment raises questions about whether Dunkle, diagnosed with paranoid schizophrenia, was really ever sane enough to stand trial for his crimes and whether he will ever be stable enough to be executed.

"We think we have the craziest client on the row," said Michael B. Dashjian, one of Dunkle's lawyers."

"Professor Elisabeth Semel, who directs the Death Penalty Clinic at UC Berkeley's Boalt Hall School of Law, said the court's appointment of a guardian was "a very partial and inadequate way of addressing a much larger problem the lawyers have raised."

"Although the lawyers will now be able to obtain Dunkle's records without his consent, his mental condition may make it impossible for him to tell his lawyers about the events that shaped his life and may have led to his crimes, she said."

"If the client was seriously abused physically or sexually, who is going to tell you about it?" she asked. "If your client is so impaired that he can't even sign for a release of his records, how will you obtain vital information from him?"

A New York Times editorial today explains why the FISA appeals court ruling on the powers of the Justice Department with respect to electronic surveillance and searches should be public in Justice in the Shadows.

"Members of the Senate, including the Judiciary Committee chairman, Patrick Leahy, have asked the court to release the arguments made by the Justice Department, and any decision it reaches."

"These documents can be abridged, so no sensitive information is compromised, but they must be released. And in the future the court should hold arguments in the open, and invite other interested parties to participate."

"Democracy, a federal appeals court in Ohio noted last month, dies behind closed doors. The federal judiciary will have forgotten this important principle if it meets with its own doors closed."

Received through a criminal defense lawyers' listserv today, a quote worth remembering from the recent opinion in Center For Nat. Security Studies v. U.S. Dept. of Justice, 2002 WL 1773067 D.D.C.,2002. Aug. 2, 2002:

"Difficult times such as these have always tested our fidelity to the core democratic values of openness, government accountability, and the rule of law.

The Court fully understands and appreciates that the first priority of the executive branch in a time of crisis is to ensure the physical security of its citizens. By the same token, the first priority of the judicial branch must be to ensure that our Government always operates within the statutory and constitutional constraints which distinguish a democracy from a dictatorship."

The Third Circuit vacated a death sentence today and remanded the case back to the trial court for a review of the defendant's ineffective assistance of counsel claim. (via How Appealing.)

The case is a famous one, portrayed in the book Blind Faith by Joe McGinnis.

The secret court of appeals that hears review of lower FISA court decisions granting or denying wiretap and surveillance orders met for the first time ever yesterday .

The court met to review the lower court's decision "rejecting Attorney General John Ashcroft's request for expanded wiretap powers in espionage and terrorism cases."

The Attorney General says he has the new powers as a result of changes in the Patriot Act, which changes he interprets as providing that applications for surveillance warrants can have criminal investigative rather than intelligence gathering purposes as their principal goal.

This interpretation is contrary to the intent of Congress in passing the Patriot Act as we have previously argued in-depth here.

The three-judge secret appeals court has a name -- the United States Foreign Intelligence Surveillance Court of Review--

As expected, it met in secret. No one knows if its findings also will be kept secret.

Thanks to Howard Bashman for providing the link to the Government's brief (it's redacted of course.)

Update: Here is the ACLU's Sept. 9 press release and Sept. 4 <a href="http://www.aclu.org/court/FISA_appeal_ltr.pdf" letter of protest, which was also signed by the Center for National Security Studies, the Center for Democracy and Technology, the Electronic Privacy Information Center and the Open Society Institute.