Houston Chronicle
Date: FRI 06/20/03
By LISA TEACHEY
Staff
Calvin Burdine, who once came within minutes of being executed for killing his lover but won an appeal because his lawyer slept during his trial, accepted an offer from prosecutors Thursday that will keep him off death row.
Under the deal, approved by his lawyers, Burdine pleaded guilty to three charges and got three life sentences. The sentences will run consecutively, meaning the 50-year-old, who already has spent 18 years on death row, won't be eligible for parole for several decades.
Before accepting his pleas, state District Judge Joan Huffman asked Burdine to explain what he thought the deal meant.
"It means we're going to do a lot of time," Burdine said.
When the judge told him that he's likely to spend the rest of his life behind bars, he said, "Yes, ma'am."
After he was sentenced, Burdine, wearing an orange jail uniform, hugged his lawyers and waved to his family before being led back into a holding cell.
Burdine's case made national headlines when an appellate court agreed that "a sleeping lawyer is no lawyer at all" and granted him a new trial. He had been sentenced to die for the 1983 stabbing of his roommate and lover, W.T. "Dub" Wise.
Before a date had been set for a new trial, though, a new swirl of attention was generated. The lawyer who for years battled the higher courts to overturn Burdine's conviction was unable to win approval to represent Burdine in the retrial as a defender paid by Harris County.
During the hearing Thursday, Burdine pleaded guilty to aggravated assault with a deadly weapon for injuring Wise during a fight several weeks before Wise was killed. He will not be eligible for parole for 20 years.
He also pleaded guilty to felony possession of a weapon for taking a gun from Wise's home after Wise was killed. Because he already had been convicted of two felonies, including sodomy, in the early 1970s, it was illegal for him to have a gun.
If Burdine is ever paroled on the first life sentence from the aggravated assault charge, then and only then will he begin serving time on the life sentence for the weapons charge. He won't be eligible for parole on the second life term until he has served a third of the sentence or 20 years, whichever is less. But he can earn credit for good behavior.
Lastly Burdine pleaded guilty to the April 18, 1983, capital murder of Wise. He won't start serving time on the final charge until the first two sentences are complete. He will be given credit for time served, but those credits won't start accruing again until the other two are complete.
After the hearing Thursday, prosecutors Di Glaeser and Stephen St. Martin said that since Burdine has already served 20 years for the capital murder, he technically could have been eligible for parole now if a new jury convicted him and gave him a life sentence.
Current law requires 40 calendar years be served on a capital life sentence before parole eligibility. At the time of Wise's death, parole laws dictated that eligibility could be considered after 20 years.
Glaeser said the plea agreement ensures Burdine remains locked up.
If Burdine were convicted of capital murder again, Glaeser said, a jury would have to be convinced beyond a reasonable doubt that he deserved the death sentence.
"There's never any guarantee," Glaeser said. "And since Mr. Burdine is already eligible for parole, if they did not find that, then theoretically he could have walked out the door."
One of Burdine's attorneys, Danalynn Recer, said the deal was the best situation for her client because had he been convicted, there is no guarantee either that he would have ever been paroled on the capital charge.
Since the death penalty was reinstated in 1982, Recer said, no one in Texas has ever won parole after receiving a life sentence on a capital murder charge.
"Parole eligibility is a fiction," she said. "We have effectively life without parole in Texas."
Another defense attorney, Anthony Osso, said playing the odds that a new jury would even give a life sentence was too risky.
"He had already been sentenced to death by a previous jury, so our ultimate goal obviously was to spare him from execution. And that became our mission pretty much," Osso said. "You never know (what a jury will decide). I mean this is Harris County. This is the death penalty capital of the world. So you always have to be concerned."
Testimony during Burdine's original trial showed he and Wise had a relationship and had lived together for 3 1/2 months. Burdine told police that he moved out of their trailer because Wise wanted him to work as a prostitute.
Wise was found stabbed twice in the back, with his hands bound with cord and a sock in his mouth.
Attorneys for the state said Burdine fled to California but was captured after trying to pawn one of Wise's pistols. Prosecutors said he confessed, and although he later recanted, the trial judge ruled the confession admissible.
Jurors and court officials would later note that Burdine's attorney at the time, Joe Cannon, dozed off at least 10 times during the six-day trial. At times Cannon, who has since died, napped for up to 10 minutes. Nonetheless, Burdine was convicted and sentenced to death.
Four years after the crime, Burdine came within minutes of being executed before getting a reprieve. He came close again in 1995 when a federal judge stayed his execution the day before he was to die.
Finally, in 2001, "the sleeping lawyer case" reached the 5th U.S. Circuit Court of Appeals. Burdine's appellate attorney, Atlanta public defender Robert McGlasson, argued that the defendant's lawyer was sleeping when he should have objected to the prosecution's references to Burdine's homosexuality. In arguing for the death penalty, prosecutors told jurors that "sending a homosexual to the penitentiary certainly isn't a very bad punishment for a homosexual."
McGlasson said the trial record is replete with prejudicial statements to which Cannon should have objected. Cannon said nothing when a prosecutor asked Burdine if he preferred to be "the man or the woman," McGlasson told the appeals panel. Nor did Cannon respond when prosecutors asked Burdine why he maintained a homosexual lifestyle after being sexually abused by his father from age 10.
In August 2001, the 5th U.S. Circuit Court of Appeals ordered a new trial, ruling that the sleeping lawyer denied Burdine his right to effective representation. The case spurred an effort among Harris County judges to set standards for legal appointments in capital murder cases and led to passage of the Fair Defense Act, a state law requiring a systematic approach to selecting attorneys for poor people.
But Burdine's elation over a new trial didn't last. In June 2002, Judge Huffman denied McGlasson's request to represent Burdine during the retrial. She said McGlasson was not on the list of lawyers eligible to be paid by Harris County to represent indigent clients such as Burdine under the Texas Fair Defense Act.
The American Civil Liberties Union filed a lawsuit on Burdine's behalf, but last fall Huffman appointed two defense lawyers, Osso and Dick Wheelan. Burdine rejected their help, and attorneys McGlasson and Recer served as his lead counsel for free.
Burdine's family did not want to comment after the hearing Thursday.