When we last left Calvin Burdine, the death row inmate who was granted a new trial by the 5th Circuit Court of Appeals because his lawyer slept through his trial, the Judge presiding over his re-trial, Joan Hoffman, finally reversed herself and agreed to continue his trial until March so that his newly appointed lawyer would have more than 90 days to prepare for a case that has lasted 20 years.

For the details, see our prior posts here and here.

But the Judge still would not let Burdine have his choice of counsel at his new trial, that being Robert McGlasson, the Georgia public defender who represented him for the last fifteen years and who was responsible for overturning his conviction.

Judge Hoffman kicked McGlasson off the case even though he is an experienced death penalty litigator because he wasn't on the list of "approved capital defenders" for Harris County, Texas.

So the ACLU filed a lawsuit for Mr. Burdine against Judge Hoffman in federal court to force her to reinstate McGlasson. The federal judge ordered the state court judge into mediation with Burdine's ACLU lawyer.

The mediation was held Tuesday, without success. The parties are at an impasse, and now the federal judge will decide who represents Burdine at his retrial. He will also rule on a motion Judge Hoffman filed to dismiss Burdine's lawsuit, alleging, among other grounds, that indigent defendants aren't entitled to their counsel of choice. Federal Judge David Hittner has scheduled a hearing next week on the case and ordered Judge Hoffman to attend.

We hope Judge Hittner takes the position that the Houston Chronicle did in a recent editorial we quoted in our earlier post:

"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."