Harris County, TX -- It wasn't bad enough that the prosecutor argued for execution because prison is "fun" for gay men. Calvin Burdine's conviction was finally tossed out because his lawyer slept through the defense, Planet Out reported.
According to Planet Out, Burdine has spent the last 16 years on death row, but on March 1 a federal judge ordered his release. Unless the state's emergency appeal succeeds, Burdine will be set free on March 6, although Harris County prosecutors have vowed to rearrest and retry him.
The case has become a cause celebre for opponents of the death penalty and for advocates of reform of Texas's indigent defense system. Activists believe that Burdine would never have been sentenced to death in the first place if not for his sexual orientation and a homophobic climate in the courtroom.
In 1983, Burdine, then 30, and Douglas McCreight robbed his former roommate and sex partner, W. T. Wise, who was tied up and stabbed in the course of the robbery. Burdine told police at the time that he had moved out of the trailer they had shared for 3 1/2 months because Wise wanted him to become a prostitute.
There was evidence that McCreight was the "principal actor" in the killing, but he agreed to a plea bargain and was paroled after serving eight years.
Burdine, however, was represented by a now-deceased court-appointed attorney, Joe Cannon, who literally slept through large portions of the 1984 trial, according to several jurors' testimony.
Neither Cannon nor the judge, Joe Guarino, raised any objections to homophobic statements by the prosecutor, Ned Morris, who is now retired. In fact, Cannon himself used the terms "fairy" and "queer" in court.
In arguing for the death penalty, prosecutor Morris said, "Sending a homosexual to the penitentiary certainly isn't a very bad punishment for a homosexual" because of sexual interactions between male inmates, so a life sentence would be inadequate.
The ACLU sought review of Burdine's case in 1995 and Texas District Judge Jay Burnett issued a writ for a new trial. A series of legal steps were taken by both sides, culminating in a 16-page ruling by U.S. District Judge David Hittner. Hittner said that the state had failed to take the situation seriously and noted that an equivalent error by a defendant could easily result in an execution.
The executive director of the ACLU's Lesbian and Gay Rights Project, Matt Coles, pointed to the homophobic comments made during Burdine's trial as "stark illustrations of what's wrong with the death penalty."
The ACLU took this occasion to call on Texas's Republican Governor George W. Bush, who is running for president, to hold off further executions in Texas until the many problems with the state's indigent defense system have been resolved.
Instead, a Bush spokesperson said, "Governor Bush hopes that the Fifth Circuit Court of Appeals will agree that this potentially dangerous man should not be freed pending the appeal."
Texas leads the U.S. in executions, with 458 prisoners currently awaiting death there. Since 1982, 209 people have been executed in the state, 121 of them during Governor Bush's administration, including ten already this year. At least two of those put to death in January were gay men.
Note: The ACLU's "Execution Watch feature" at archive.aclu.org/executionwatch.html monitors the number of U.S. executions since the reinstatement of the death penalty in 1976.