Judge Refuses to Intervene in Texas ‘Sleeping Lawyer’ Case

A federal judge in Houston on Monday refused to intervene in the retrial of a convicted murderer whose first lawyer had slept through significant portions of the original trial -- a case that has raised serious questions about the quality of justice in Texas.

U.S. District Judge David Hittner rejected a motion from the American Civil Liberties Union that he order a state court judge to appoint veteran Atlanta lawyer Robert McGlasson to represent Calvin Burdine. Hittner cited a 1971 U.S. Supreme Court ruling that federal courts, as a general rule, may not intervene in a pending state court criminal prosecution.

The 14-page ruling was a victory for Harris County, Texas, trial Judge Joan Huffman, who had refused to appoint McGlasson even though he had represented Burdine for 15 years in appealing the 1984 murder conviction.

In 1999, Hittner ruled that Burdine’s constitutional rights had been violated because his original attorney had fallen asleep several times during the trial. Hittner’s ruling eventually was upheld by a federal appeals court and the U.S. Supreme Court, setting the stage for a retrial.

Burdine asked Huffman to appoint McGlasson to continue representing him, saying that the federal public defender, who used to work in Texas, had detailed knowledge of the case. But Huffman declined, saying that McGlasson was not on an approved list of lawyers qualified to represent defendants in murder trials in Houston.

The Texas Court of Criminal Appeals rejected an appeal of Huffman’s ruling. The ACLU then sued Huffman in federal court, asking Hittner to order her to appoint McGlasson in order to effectuate Hittner’s original decision that Burdine receive a new, fair trial.

Hittner ordered the two sides to mediate the issue, but no agreement was reached and he was forced to rule.

He said that relevant precedents required him to stay out of the case. Moreover, Hittner said, he would not presume that Burdine will receive poor representation simply because McGlasson is not appointed.

At a hearing this month, a deputy state attorney general, representing Huffman, said she would appoint two “first class, top notch” attorneys to represent Burdine.

ACLU lawyer Annette Lamoreaux said that she was disappointed in the ruling and would appeal to the U.S. 5th Circuit Court of Appeals in New Orleans. The Texas attorney general’s office did not return calls seeking comment.