By Chris Lane
By Jeff Balke
By Aaron Reiss
By Angelica Leicht
By Dianna Wray
By Aaron Reiss
By Camilo Smith
By Craig Malisow
At 6:07 p.m., Burks, with only a slight quaver in his voice, begins to give his last statement. He talks fast. "Hey, how y'all doing. All right. It's going to be all right. There are some guys I didn't get a chance to visit with, ah, I met when I first drove up here, Lester Byers, Chris Black, Alba and Rosales Rocky. You know who you are. The Raiders are going all the way, y'all. Y'all pray for me. And it's going to be all right. That's it, and it's time to roll up and out of here. It's going down. Let's get it over with. That's it."
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's 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 good-bye 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.
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's heart.
But only Burks's 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's 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," says Walter Reaves, Burks's appellate lawyer. "He had an extremely strong claim on direct appeal."
In 1994 the Texas Court of Criminal Appeals reviewed Burks's 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's 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 withheld information from the inmate's lawyers that could have helped Burks's 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 prosecution's claim that he had informed the defense lawyers about the nurses' comments, even though Burks's 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 appellate 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.
Ralph Strothers, who prosecuted Burks and now sits as a state judge in Waco, 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."
Specifically, Strothers says he did disclose to the defense lawyers the nurses' comments about the Hispanic accent. Moreover, he believes Burks, who had made a second home and started a second family in Harlingen, could have adopted a Hispanic accent for the robbery.