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After 33 Years, Retrial Ordered on Calif. Murder

(CN) - Forcing California to retry a man who has been on death row for decades, the Ninth Circuit slammed the trial court for trampling his right to represent himself.

There are few details on the crime itself in the 63-page lead opinion, but a dissent says Andrew Burton shot Anwar Khwaja in the forehead and in the eye during a robbery on Feb. 25, 1983. "Smiling or laughing contentedly," 19-year-old Burton then shot Khwaja's mother, fatally, in the chest.

He "chuckled" as he escaped, but was quickly arrested for Gulshakar Khwaja's murder, the dissent by Judge Diarmuid O'Scannlain says. Khwaja's son survived, news reports on Burton's trial show.

The case against Burton went to trial in Los Angeles in August, three months after its originally scheduled start of early May.

While Burton's court-appointed attorney had requested the first continuance, the trial court ordered the next two delays by its own motion.

By the time Judge D. Sterry Fagan finally called Burton's for trial on Aug. 10, Burton said he wanted to represent himself, claiming his attorney spent too little time with him.

Fagan refused Burton's request, however, and did so again three more times during the brief trial. Each time, Fagan said he would not let Burton invoke his right to self-representation under the 1975 case Faretta v. California because Burton was not ready for trial.

Though Fagan had cited a 60-day speedy-trial statute, the Ninth Circuit's ruling says this "concern was simply wrong.

"The 60-day requirement was a limit on the government, not the defendant," a footnote in the ruling says. "Trial could be set on a date beyond the 60-day period 'at the request of the defendant or with his consent, express or implied.'"

Burton has been facing the death penalty for Khwaja's murder since his sentencing on Aug. 23, 1983.

Though he filed for federal habeas relief in 1992, these proceeds were put on hold for 16 years because of delays in the California court system. The state Supreme Court finally rejected Burton's case in 2005, and Burton petitioned for federal habeas relief again in 2008.

With the district court agreeing that Burton's trial violated his Faretta rights to self-representation, the Ninth Circuit affirmed 2-1 Thursday from Pasadena.

"As the district court correctly noted, it is not enough for the state to show the defendant would need a continuance in order to prepare his own defense," Judge Jay Bybee wrote for the majority." "Of course, the district court may consider whether trial would be delayed and whether such a delay would prejudice the prosecution, as well as whether the petitioner could reasonably have been expected to make the Faretta motion at an earlier time. But these factors are not dispositive. District courts must consider the totality of the circumstances to determine whether the petitioner's sole purpose in seeking to proceed pro se was to delay the proceedings." (Emphasis in original.)

Judge O'Scannlain wrote in dissent that the state court gave Burton a "full, fair, and adequate" hearing on his Faretta claims, and that this court's findings is owed defederence.

"If we take the California Supreme Court at face value, we are left with the clear determination that Burton's purpose in making his motion was to delay trial," O'Scannlain wrote.


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