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Protecting the Attorney/Client Relationship: “Bakesale Justice” for Calvin Burdine
Though GRACE founders Danalynn Recer and Clive Stafford Smith had long talked about starting a capital trial office in “the capital of capital punishment” the return of Calvin Burdine to Harris County for retrial instantly transformed this long term dream into a short-term foot race. Initially, it looked like Calvin was in for a repeat of his 1984 experience until an amazing coalition of lawyers came together to make sure the retrial would be a fair fight and, ultimate, to secure a life-saving plea for Calvin. GRACE emerged from this process.
Most people have heard of Calvin “Jerry” Burdine’s case as “the sleeping lawyer case.” But, you may not know that Calvin was convicted after 12 hours of testimony and a 17 minute deliberation by the jury on the guilt phase. He was sentenced to death by the jury after a penalty phase hearing which ran for just minutes. Calvin was “defended” by a lawyer who did virtually no investigation or preparation, and, further, did little to defend Mr. Burdine’s life in the courtroom. His lawyer made no objection to the prosecution’s blatant use of homophobia throughout the trial, and even used disparaging epithets against his own client. He called no witnesses at sentencing; he forced Mr. Burdine to take the stand to tell the jury that he did not want to testify at sentencing; he failed to object when the prosecutor told the jury a sentence of life in prison would be a picnic for a homosexual man such as Calvin Burdine; and his argument for life was largely a rambling diatribe against the death penalty that said nothing about Calvin Burdine as an individual or why he personally was undeserving of a death sentence.
Even worse, Mr. Cannon slept repeatedly and for substantial periods of time throughout Mr. Burdine’s capital trial, while the government presented its case against his client. Not surprisingly then, the jury convicted Mr. Burdine of capital murder and sentenced him to death on January 30, 1984. The trial court also appointed Mr. Cannon to represent Mr. Burdine on appeal, and the conviction and sentence of death were affirmed by this Court. See Burdine v. State, 719 S.W.2d 309 (Tex.Crim.App. 1986), cert. denied, 480 U.S. 940 (1987).
For almost 20 years, the state of Texas defended this illegal conviction while Calvin lived under horrific conditions on death row, the victim of repeated beatings and torture. Calvin’s codefendant, on the other hand, served 8 years in jail and has now been released.
Luckily, Calvin was represented by Robert L. McGlasson, of the Texas Resource Center, in post-conviction proceedings. Robert fought for Calvin for over 15 years. From 1987 through 1995 Mr. Burdine pursued post-conviction relief in the state courts of Texas, where he was appointed to represent Mr. Burdine by the Honorable Jay Burnett, (then) Judge, 183rd District Court, Harris County.
In 1995, Judge Burnett found in state post conviction proceedings that Calvin’s trial attorney had slept repeatedly and for periods of ten minutes or more throughout both phases of the trial and recommended that relief be granted, but the Court of Criminal Appeals refused to accept that recommendation. Ex Parte Burdine, No. 379444-A (183rd Dist. Ct. Harris County, Tex. June 29, 1994);Ex Parte Burdine, Writ No. 16,725-02 (Tex.Crim.App. Dec. 12, 1994); Ex Parte Burdine, No. 379444-B (183rd Dist. Ct. Harris County, Tex. April 4, 1995); Ex Parte Burdine, Writ No. 16,725-06 (Tex.Crim.App. April 6, 1995).
Robert then immediately filed a petition for writ of habeas corpus in the U.S. District Court for the Southern District of Texas on Calvin’s behalf.
In 1999 federal district court Judge Hittner granted Calvin a new trial because based upon the finding that he was denied his Sixth Amendment right to counsel because his attorney had slept through substantial portions of his trial. Burdine v. Johnson, 66 F.Supp. 2d 854 (S.D. Tex. 1999).
But, even then, the State of Texas challenged this ruling in both the 5th Circuit and the US Supreme Court for the next two and a half years. Finally, on June 3, 2002, the Supreme Court denied Texas’ petition for a writ of certiorari without opinion. Cockrell, Dir., TX DCJ v. Burdine, Calvin J., 01-495, June 3, 2002.
Four days after cert. denial, Mr. Burdine was transferred back to the Harris County for a new, “fair” trial. But, unfortunately, his troubles did not end there.
Public outrage at the notorious “sleeping lawyer case” in part led the 2000 Texas legislature to enact the Fair Defense Act, establishing standards for the appointment of capital counsel and providing funds to improve the quality of indigent defense. Ironically, when Calvin returned to Harris County, Judge Joan Huffman invoked the Act to prevent Robert McGlasson, who had represented Burdine for the last 15 years, from defending him at the retrial.
Calvin was understandably adamant that he would not accept counsel chosen by the court. McGlasson asked Danalynn Recer, a former post-conviction attorney who had switched to capital trial work several years before, to step in on a pro bono basis. Danalynn, Robert, Clive and Joe Margulies quickly founded the Gulf Region Advocacy Center (GRACE) as a nonprofit in Texas to serve as the home of Burdine’s ad hoc, volunteer defense team.
Judge Huffman not only removed the lawyer who won the new trial for Calvin, she also set the trial for October 7, 2002 – just 96 days after his return to Houston -- which would have been the fastest capital trial in Harris County history.
In a remarkable show of solidarity, the Harris County Criminal Lawyers Association unanimously voted to write an open letter to the Harris County Criminal Court Judiciary protesting Judge Huffman’s denial of Calvin’s Motion for a Continuance. The letter read, in part:
“Mr. Burdine’s retrial offers not only a second chance for Mr. Burdine, but also a second chance for this County to demonstrate that we are not asleep on the job, that our courts do take the rights of individual citizens seriously, that our system does work most of the time to effectively seek justice rather than simply be expedient, and that when mistakes happen, as they will in any human endeavor, we are willing to redress them. Instead, the events that have unfolded since Mr. Burdine returned to Harris County . . .have led us to believe that his retrial may suffer from some of the same constitutional infirmities as the 1984 debacle.” ---Open Letter from the Harris County Criminal Lawyer’s Association to the Harris County Criminal Judiciary
Meanwhile, the Texas Criminal Defense Lawyers Association and the National Association of Criminal Defense Lawyers jumped into action, filing a writ of mandamus with the Court of Criminal Appeals in Austin, challenging Huffman’s removal of McGlasson. And, the Texas Chapter of the American Civil Liberties filed a federal civil rights suit against Judge Huffman, and District Court Judge Hittner held a hearing in the historic case of Burdine vs. Huffman.
Judge Hittner found that he lacked jurisdiction to force Huffman to appoint Robert, but he also made clear that his order reversing Calvin’s conviction and sentence was meant to provide him a new, fair, trial, and should not be misconstrued to deny his team adequate time to prepare.
As a result of the hearing, the lawsuits, the open letter, and evidence collected and submitted by GRACE demonstrating that Calvin was being treated differently than any other capital defendant in Houston, Judge Huffman finally granted a continuance of the trial date, giving the team at least a chance to get justice for Calvin. Danalynn and two volunteer attorneys from Australia began the work of pretrial litigation.
With little hope that the courts would ever appoint Robert, GRACE was forced to find an alternative means to fund Calvin’s representation. We called this “bake sale justice”. We set up office in the tiny attic apartment over Danalynn’s house, furnished it with donated furniture and computers and staffed it with volunteers. Local attorneys and capital defenders from around the country sent everything from cash to canned goods, office supplies, phone equipment and filing cabinets. Most importantly, LCAC provided the model of pretrial litigation and help modifying over two hundred motions to file in a Texas trial Court.
Calvin’s cause attracted an amazing coalition of talented and dedicated capital defenders, whose volunteer work on pre-trial motions put the state on notice that the trial team was wide awake; prepared our mitigation; somehow made sense out of 27 dusty boxes of documents; tracked down decades-old investigative leads.
For the next ten months, Danalynn and a rag-tag band of volunteers – assisted long distance by Robert McGlasson and Clive Stafford Smith – prepared pre-trial litigation challenging the selection of Grand Jury forepersons in Harris County, calling into question some of the state’s extraneous bad act evidence against Calvin, and even demonstrating that the Harris County District Attorney’s Office was filing and serving their subpoenas in a manner inconsistent with Texas law.
From the start, Calvin had been willing to enter into a plea bargain to serve the remainder of his natural life in prison. But, Harris County’s notorious District Attorney, Chuck Rosenthal, had stubbornly dug his heels into to a grudge match in a case that he felt had embarrassed his office. But, with dogged investigation and pretrial litigation, the staff and volunteers of the fledgling GRACE were finally able to convince Rosenthal to accept Calvin’s offer.
Finally, in June 2003, almost exactly a year after his return to Harris County, Calvin Jerold Burdine entered into an agreement with the State of Texas that ensured he would never again face the executioner!!!
After twenty years of incarceration, including 18 years on death row and several close calls with the executioner, Calvin says he feels like “Nine tons have been taken off my shoulders.” Finally free of the specter of lethal injection, Calvin has already begun to turn his attention to ministering to his fellow inmates.