High-profile case helped change justice system

January 5, 2013

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Calvin Jerold Burdine’s lawyer slept through parts of his capital murder trial and, along with the prosecutor, used anti-gay slurs. So egregious was the behavior of those in the justice system that Burdine’s case was used to argue for the passage of the Texas Fair Defense Act – and an overall examination of what the state considers justice.

TENNESSEE COLONY – Calvin Jerold Burdine was interviewed years ago by Oprah, Barbara Walters, Peter Jennings and Geraldo. But he almost missed his interview in early November with the Texas Center for Community Journalism. Reason being, he nearly died.

Just days before TCCJ’s meeting with Burdine at the maximum security Michael Unit about 45 miles from Corsicana, the man at the heart of a landmark case for the Texas justice system had to be rushed to a hospital in Palestine. He had had a heart attack.

“I flat-lined twice,” Burdine said as he sat in a visitation room at the unit he hopes to finally leave in the spring. He is anticipating parole after almost three decades behind bars.

Burdine was sentenced to death in January 1984 for his role in the stabbing death of W.T. “Dub” Wise, a Houston man with whom he had had a homosexual relationship.

Although evidence showed that it was actually Burdine’s cohort, Douglas McCreight, who committed the murder, Burdine was found guilty under the Texas Parties Act and held accountable for not having prevented the killing. His now-deceased court-appointed lawyer, Joe Frank Cannon, presented no evidence on his behalf and slept repeatedly during his trial.

“Really, I was my own counsel,” said Burdine.

Though Burdine received the heaviest sentence possible, McCreight was paroled after serving just eight years.

Lying on a hospital gurney at the hospital in Palestine with an IV needle stuck in one arm brought a feeling of deja vu for Burdine, who will soon turn 60. He recounted having come within minutes of lethal injection.

Burdine says he was in the execution chamber, strapped to a gurney with saline coursing through his veins, when the phone rang at 13 minutes before midnight and the execution was halted.

His mother, watching through the witness window, collapsed.

Jason Clark, a spokesman for the Texas Department of Criminal Justice, said that Burdine was scheduled for execution several times before his sentence was commuted to life on June 19, 2003. He said he could not confirm Burdine’s claim about a close call because information is missing from his file.

According to Burdine, missing paperwork that detailed a stay of execution was what almost caused him to meet his maker in Huntsville.

But perhaps none of that is as important now as the bigger picture of the Burdine case.

While the Texas justice system has spent years making sure Burdine paid dearly for his sins, it has also been forced to confront its own.

And that may be the one gift Calvin Burdine has given to society.

A seismic shift

While spring 2013 may prove life-changing for Burdine if he finally is granted parole, it will also mark a half century since the passage of the U.S. Supreme Court’s decision in Gideon v. Wainwright. The court ruled that indigent criminal defendants have a constitutional right to counsel.

A symposium is planned at the state Capitol on March 18, the 50th anniversary of the landmark decision. It will be broadcast live over the Internet.

“We’ll be seeking to have a concurrent resolution passed by the house and senate that day, too,” said Jim Bethke, executive director of the Texas Indigent Defense Commission. Bethke said the commission is coordinating with the Texas Criminal Defense Lawyers Association and the office of Sen. Rodney Ellis (D-Houston).

It was Ellis who authored the legislation for Senate Bill 7, also known as the Texas Fair Defense Act. It was signed into law by Gov. Rick Perry on June 14, 2001 – almost exactly two months before the U.S. Supreme Court granted Calvin Burdine a new trial.

Wesley Shackelford, special counsel and deputy director for the Indigent Defense Commission, said that Burdine’s case was used as an argument for why the Fair Defense Act needed to be passed. He also said that another, bigger factor was at play: Texas Appleseed’s Fair Defense Report of 2000. The 248-page study documented a number of shortcomings within the justice system.

The Fair Defense Act, which ensures prompt appointment of an attorney for criminal defendants who cannot afford one, also called for the creation of a task force. Ten years after the formation of the Texas Task Force on Indigent Defense, the 82nd Legislature made it a full-fledged commission. Though Bethke and his staff had sweated along with other agencies as budgets were slashed, the Indigent Defense Commission emerged with its staff still intact.

The upcoming 83rd Legislative session could bring a focus on prosecutorial misconduct, and the public could see more courts of inquiry to hold prosecutors accountable for wrongful convictions, according to several of those who work in the area of criminal defense. Texas leads the nation in the number of wrongful convictions, according to Ellis, who is also responsible for the passage of legislation pertaining to eyewitness identifications. Eyewitness ID has been shown to be a leading cause of wrongful convictions.

This month, representatives of the Indigent Defense Commission will meet with officials in Comal County to discuss a pilot Client Choice program in which indigent defendants will be able to choose who represents them.

“It would improve the feeling on the part of the defendant that he really has more say in his representation. I think it would provide tremendous benefits,” Bethke said at an Indigent Defense Workshop in Austin in November.

In an Austin interview with the Texas Center for Community Journalism in August, Bethke said that Client Choice programs could put Texas at the forefront in indigent defense and would “allow the person who has the most at stake” to make the decision on who will represent them.

Such a system could knock incompetent attorneys off the taxpayer-funded gravy train, while helping to prevent those accused of crimes from possibly being railroaded.

Bethke said that Texas has made, and continues to make, great strides in balancing the scales of justice.

“We’re 10 years down the road,” he said, referring to the formation of the Task Force. “We’re not as far back as we were. We’re encouraging good systems that are principle-driven and are accountable.”

Kathy Cruz is a staff writer for the Hood County News in Granbury. She can be reached at [email protected]

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Category: Justice for All