10 JUNE 27, 2003
www.houston voice.com HOUSTON VOICE
'Sleeping lawyer" case ends for gay defendant
Burdine trades new trial for
life in prison in plea deal
By PENNY WEAVER
A gay Texan and former death row inmate
who won a new trial because his lawyer
allegedly slept through parts of his first trial
pleaded guilty last week to capital murder
and will spend life in prison.
Calvin Burdine, 50, was convicted in 1984
of capital murder and given the death penalty for the 1983 stabbing death of his lover and
roommate, W.T. "Dub" Wise. A federal judge
reversed the conviction and granted a new
trial because evidence showed his trial attorney, Joe Cannon, slept for up to 10 minutes at
a time during crucial phases of testimony.
Cannon, who has since died, denied ever
falling asleep during the trial. Burdine's
Decatur, Ga., attorney, Robert McGlasson,
argued in appealing the death penalty case
that Cannon was sleeping instead of objecting to the prosecutions repeated references to
In arguing for the death penalty and against
life in prison for Burdine following his convic-
tion, the prosecutor told the jury, "Sending a
homosexual to the penitentiary [for life] certainly isn't a very bad punishment for a homosexual, and that's what he's asking you to do."
Gay and civil liberties groups, in a 1995
brief asking that Burdine's conviction be
overturned, said, "The prosecution clearly
implied that... life behind bars would be
pleasant for a gay person — in effect portraying the gay inmate as a 'kid in a candy store.'"
The prosecutor also said that Burdine's
1971 Texas conviction for sodomy, a consensu-
Gay Texan Calvin Burdine, formerly on death row in
a capital murder case, last week entered a guilty
plea and likely will spend the rest of his life in
prison. (Photo from AP)
al offense, was evidence of his "likeliness to
commit criminal violent acts in the future."
Cannon also was found to have used anti-
gay slurs during the trial. According to
McGlasson. Cannon was homophobic and did
not challenge the prosecutor's biased statements to the jury, as well as prospective
jurors who exhibited anti-gay bias.
In Burdine's appeal the higher courts did not
address what McGlasson, gay rights activists
and death penalty opponents have said was
homophobia on the part of both the prosecutor
and defense attorneys during the original trial.
A year ago, the U.S. Supreme Court
declined a state request to reinstate Burdine's
conviction and death sentence, sending the
case back to Texas, where authorities either
had to retry him or set him free.
On June 19, Burdine pleaded guilty to capital murder, aggravated assault and felony
possession of a weapon in exchange for life in
prison, and state District Judge Joan
Huffman levied consecutive life sentences for
the crimes. The punishment virtually assures
he will spend the rest of his life in prison.
When Huffman asked Burdine if he understood the deal, witnesses said Burdine replied,
"It means we're going to do a lot of time."
Prosecutors agreed to the deal because of
"the guarantee that he would die in prison," if
not by injection then by old age, Harris County
District Attorney Chuck Rosenthal said. Also,
potential trial evidence available to prosecutors had deteriorated with age had they gone
for another death case, Rosenthal said.
Burdine survived six execution dates
before a federal court agreed that Cannon's
performance violated Burdine's constitutional right to an effective lawyer. Houston
lawyer Danalynn Recer, one of Burdine's
attorneys, said last week that Burdine understood that prison will remain his home.
"His experience of living on death row for
close to two decades was a traumatizing experience," Recer said. "He came close to being executed and the terror of having that over his head
for nearly 20 years has finally been removed. He
is very relieved not to be facing the executioner"
Burdine was convicted of killing Wise at the
Houston trailer they shared. Burdine confessed
to police and later recanted, claiming an accomplice killed Wise while Burdine tried to talk
him out of it. That alleged accomplice, Douglas
McCreight, made a deal with prosecutors in
exchange for testimony against Burdine.
McCreight served eight years in prison for
his role in the slaying before being released.
After the first trial, the jury foreman and a
court clerk described how Cannon, Burdine's
court-appointed lawyer, slept periodically
during the testimony and sentencing phases.
Recer said prosecutors took advantage of
Cannon's lapses by often referring to
Burdine's homosexuality during the trial.
"No real defense was put forth," she said.
Rosenthal said he doesn't believe Cannon
slept because the court transcript indicates timely objections, and "you don't expect him to be as
vigorous as he was if he were actually sleeping."
A three-judge panel of the 5th U.S. Circuit
Court of Appeals first reversed the finding
that Cannon's snoozing violated Burdine's
rights in a highly criticized ruling in 2000. The
full appeals court then chose to hear the case
and agreed with the first court that Burdine
didn't get a fair chance to defend himself.
In July 2002, the Supreme Court allowed
that ruling to stand.
Last fall, Burdine's case again made headlines when, in a rare move, a federal judge
called a state judge to his courtroom to resolve
a civil suit that stemmed from Burdine's retrial.
In October, U.S. District Judge David
Hittner ordered Huffman and attorney
Annette Lamoreaux to appear in his court.
Lamoreaux, East Texas regional director for
the American Civil Liberties Union (ACLU),
represented Burdine in his fight to keep
McGlasson as his defense counsel.
McGlasson handled Burdine's death
penalty appeal and appeared with him in
Harris County court a year ago for a hearing
to determine Burdine's future counsel.
But at that proceeding, Huffman refused
to appoint McGlasson as Burdine's counsel.
Her stated reason was that he is not on the
Harris County list of lawyers approved to represent defendants in capital murder cases.
By the time Burdine's new trial was to
begin this spring, he rejected help from two
defense attorneys appointed by Huffman,
and McGlasson and Recer both agreed to represent Burdine at no charge.
The Associated Press contributed to this story.
Houstonians enjoy 25 days of Pride 2003
Above: A number of gay Houstonians
turned out for the Saturday, June 21,
Pride Day at Six Flags Astroworld. Left:
Bering United Methodist Memorial Church
hosted an Interfaith Gay Pride Service
on Sunday, June 22.