Killing machine

Page 8 of 10

He then adds, "You take care, Sonya," naming one of his friends who is present. But this comment is left out of the official version of his final words, which Fitzgerald will pass out to reporters minutes later.

The nervousness in Burks' voice seems strangely familiar. It's like the chatter of any adult before a doctor performs a medical procedure.

With his final words, Burks has cheered on a football team, said goodbye to his friends, and assured his loved ones that he made his peace with a higher power. But the inmate, who had spent 3,905 days on death row, made no mention of the crime that led to his execution.

January 20, 1989--the day of the elder George Bush's presidential inauguration--also sealed Burks' fate. That day, he is said to have fired four bullets into Jesse Contreras, a 63-year-old tortilla factory owner who threw trashcans to defend himself against the burglar. Contreras died of his wounds 27 days later. Contreras had not given up any cash. But, as his daughter later noted in court, he gave up his life.

A twice-convicted burglar on parole at the time, Burks got picked up by the authorities some 370 miles south of Waco. At his trial, several witnesses placed Burks at the crime scene. A relative testified that he had bought bullets similar to those found lodged within inches of Contreras' heart.

But only Burks' cousin, Aaron Bilton Jr., who has since died, identified John Albert Burks as the shooter. Testifying for prosecutors, Bilton fared the best of the three co-defendants. Mark McConnell, Burks' half-brother, who was also a co-defendant and refused to take the stand against his sibling, was sentenced to 40 years.

"He got screwed by the system," Walter Reaves, Burks' appellate lawyer, says. "He had an extremely strong claim on direct appeal."

In 1994, the Texas Court of Criminal appeals reviewed Burks' trial record and acknowledged that the presiding state judge, George Allen, had committed errors. Specifically, the judge had barred the testimony of Regina Burks, a former in-law of the condemned man, who had claimed that she heard Bishop McConnell III, Burks' other half-brother, brag drunkenly a few hours after Contreras was shot that he'd done the deed. Today, McConnell, whom a witness spotted in the getaway car an hour before the murder and who eight days before the crime bought a gun similar to the weapon used in the slaying, maintains he was home all day. "I was sick and asleep on the couch," he says.

Reaves contends the trial judge also failed to recognize that the prosecutors had withheld information from the inmate's lawyers that could have helped Burks' defense. The trial lawyers testified at a later hearing that they never knew during the trial that two hospital nurses who had cared for Contreras had told state prosecutors that the tortilla factory owner said his assailant spoke with a Hispanic accent and used some Spanish words. At the hearing, the judge accepted the prosecutor's claim that he had informed the defense lawyers about the nurses' comments, even though Burks' attorneys had no recollection or notes reflecting that information.

Despite finding that the judge erred, the Court of Criminal Appeals kept the conviction on the books.

Two of the appeal courts judges, however, dissented. "Given the weakness of the State's evidence, Regina's testimony...if believed, could have created in the jury's mind a reasonable doubt as to whether [Burks] shot Contreras," one wrote.

Reaves says he didn't expect much better from the Austin-based appeals court. The Court of Criminal Appeals has earned a national reputation for its tendency to support death-row convictions.

"It's a fact of life with death cases and the court of appeals--they get affirmed," Reaves says. Since January 1995, the court has affirmed 266 of the approximately 300 death penalty convictions brought before it.

In federal court, Reaves says, he was tied to the faulty record of evidence that Judge Allen had allowed to be developed in state court. Therefore, no real review could occur, Reaves contends.

Burks knew the system wasn't going to help him, Reaves says, based on what he saw happening to his fellow death-row inmates. "He was sophisticated enough to know everyone else on death row was losing," Reaves says.

For Ralph Strothers, who prosecuted Burks and now sits as a state judge in Waco, the case yielded his first capital murder conviction. He is untroubled by the issues Reaves identifies. "I'll always maintain the right guy got put to death," he says. "I'm not going to try to second-guess it at this point."

KEEP THE DALLAS OBSERVER FREE... Since we started the Dallas Observer, it has been defined as the free, independent voice of Dallas, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Miriam Rozen
Contact: Miriam Rozen

Latest Stories