By Casey Michel
By Dianna Wray
By Dianna Wray
By Sean Pendergast
By Casey Michel
By Cory Garcia
By Jeff Balke
By Craig Malisow
Clouds hover, but rain has not yet begun to fall on a recent Wednesday. It is 6:18 p.m., and Larry Fitzgerald has just finished the job he has done more than a hundred times before: witnessing a Texas inmate being put to death.
This time, it is a 44-year-old man named John Albert Burks.
During a six-minute stroll from the execution chamber to his office in the Texas Department of Criminal Justice administrative building in downtown Huntsville, Fitzgerald keeps quiet, his head bowed.
None of the noisy throngs of protesters who will be present the next week for the controversial execution of Houston criminal Gary Graham line the streets this night. Only an eerie calm greets Fitzgerald.
Convicted more than a decade ago of shooting Jesse Contreras, a Waco tortilla factory owner, during a botched robbery attempt, Burks has died in obscurity. No Bianca Jagger, no Jesse Jackson, no Danny Glover -- all of whom lobbied for Graham -- has voiced objections about Burks's fate.
"Aw, you're just going to see somebody going to sleep," Fitzgerald, the state's spokesman for death row, had told a reporter -- an anxious newcomer to the execution process -- 20 minutes earlier.
At 6:24 p.m., 13 minutes after the executioner had injected a lethal cocktail of sedatives, muscle relaxants and heart-stopping potassium chloride into intravenous tubes inserted in Burks's arms, Fitzgerald finally speaks. He doesn't sound as cavalier as he had before Burks's death.
"With an execution, everyone is a victim," he says quietly. "I never believed that crap about closure."
The moment stands out as an uncharacteristically dour one for Fitzgerald, who is professionally responsible for putting the best face on Texas's death row. His job has become a lot tougher lately.
The worldwide press has focused, often with horror, on the rapid-fire execution machinery that has operated under presidential candidate George W. Bush's tenure as Texas governor.
The numbers alone have stirred some of the attention: 133 prisoners have been executed since Bush became governor; 14 more are scheduled to die before Election Day in November. Since the U.S. Supreme Court reinstated the death penalty in 1976, Texas has executed 222 men and women and has distinguished itself far and away as the most prolific and resolute among the states that allow capital punishment. Virginia, the closest rival, has killed 76. Awaiting execution on Texas's death row are 455 inmates, 180 of them black men; another 104 are Hispanic males.
The national media's interest intensified after Bush issued in early June an unprecedented 30-day stay for Ricky Nolen McGinn, a death row inmate who had been scheduled to die for the 1993 rape and murder of his 12-year-old stepdaughter. The governor agreed that additional DNA testing could possibly prove that McGinn didn't rape the child.
One day before Burks's execution, the U.S. Senate Judiciary Committee called upon a former Texas Court of Criminal Appeals judge to defend at a public hearing the state's high rate of death row convictions. A day earlier, newspapers around the country had run front-page stories about a Columbia University study that claimed to have found serious errors in 68 percent of the murder trials nationwide that ended in a death sentence between 1973 and 1995.
This winter, Illinois Governor George Ryan, a Republican, declared a moratorium on executions in his state after 13 condemned men were freed based on new evidence. In Texas, Bush ally state Senator David Sibley of Waco helped draft legislation to allow for DNA testing of inmates before executions. And state Attorney General John Cornyn ordered a review of six Texas death row cases, specifically ones for which Walter Quijano, a psychologist, had testified. The attorney general's move followed a U.S. Supreme Court decision to send back to the Texas Court of Criminal Appeals the case of death row inmate Victor Hugo Saldano, specifically because Quijano had told jurors that the defendant represented greater danger to his community because of his Hispanic background.
Other than his 30-day reprieve for McGinn, however, Bush has shown no inclination to halt Texas's fast-moving execution machinery. "I'm absolutely confident that everybody who has been put to death has two things: One, they were guilty of the crime charged, and secondly, they had full access to our courts, both state and federal," he told a debate audience in March.
With his swagger about death row convictions, the presumed Republican nominee has set himself up to be proved wrong. National and international reporters have descended on Texas's death row, smelling blood: a big story.
Managing publicity for a modern-day death row is Larry Fitzgerald's ticklish task. "We have nothing to hide," he says. "Make no mistake about it. All we are doing is carrying out the court's orders."
Fitzgerald and TDCJ do their job with some flair, maintaining a macabre Web site (www.tdcj.state.tx.us/statistics/stats-home.htm) where any voyeur can read about the condemned prisoners' last meals -- there is a preponderance of cheeseburgers and fries -- as well as gory details of their crimes. "While it certainly has drawn some attention to us, it has helped me," Fitzgerald says about the bizarrely detailed site. "What drove the site is reporters' questions."
Now that the Bush factor has reporters crawling all over his agency, Fitzgerald, a wry, understated 63-year-old, describes the execution atmosphere in terms of a spectacle.
"It is just a goddamn circus here," Fitzgerald says.
John Albert Burks's execution, the 21st this year, however, was carried out far away from the big top.
Five hours before he witnessed Burks's execution, when the day was still bright, Fitzgerald pulled into TDCJ's maximum-security Terrell Unit parking lot for his usual midweek drill.
For Fitzgerald, Wednesday means men's day. At the Terrell Unit, where TDCJ houses all male death row inmates, it's the day each week when members of the press are allowed to visit from 1 p.m. to 3 p.m. with the condemned men whom Fitzgerald and the warden have approved for interviews. (Monday is women's day. At their separate unit in Mountain View, the eight women on death row have their weekly opportunity with the press.)
Inside, 2,879 prisoners reside. Death row inmates don't participate in activities with the other prisoners and stay in isolated 60-square-foot cells. It costs taxpayers $49.54 per day to house each one, higher than the system-wide average of $37.03.
A slight breeze blows from nearby Lake Livingston. The sunny weather has infected people's dispositions. From the watchtower, guards yell greetings to colleagues below.
In the parking lot, Fitzgerald stands in front of a television camera crew. Deborah Wrigley, a reporter from KTRK-Channel 13, is taping a story about the extra security precautions that TDCJ and other law enforcement officials will take for Graham's execution.
Convicted of the robbery and murder of an Arizona salesman visiting in Houston, Graham attracted famous supporters in part because of the flimsiness of the case against him. Only one eyewitness -- she recently held press conferences to reconfirm her testimony -- linked Graham to the crime. The inmate would go on to die handcuffed to his gurney.
By 1 p.m. on this day, an ABC network crew, a cub reporter from the Austin American-Statesman, a correspondent from the Spanish-language television network Telemundo, a veteran from the Plainview Daily Herald and Argentine journalists have all arrived punctually at the prison gate for their interviews with inmates.
Geraldo Rivera, the famed national television correspondent, is late.
Fitzgerald wants the group to wait a few minutes for Rivera so he can escort everyone to the inmates' interview room.
Today Graham is by far the most popular inmate. Both Rivera and the ABC team have asked to talk to him. The Telemundo correspondent plans to talk to Victor Hugo Saldano, whose sentence was overturned by the Supreme Court because of psychologist Quijano's statements.
Jamie Manfuso, an Austin American-Statesman reporter who has been on the job for three weeks, has asked to interview Nuncio and Jessy San Miguel, a 28-year-old Hispanic man who is scheduled to be executed at the end of June for the slayings of four people in an Irving Taco Bell nine years ago.
No one interviews Burks today.
"Hope was executed around here a long time ago," Burks told Tommy Witherspoon of the Waco Tribune-Herald. Burks's appellate lawyer, Walter Reaves, says his client was resigned to his fate, and Burks made no effort to seek publicity, even though he too has maintained his innocence.
By noon, the warden will halt Burks's visits with friends so a large detail of TDCJ guards can take the condemned man at an undisclosed time and through a secret route to the death chamber in Huntsville, a 45-minute drive away.
As it happened, by the time of Burks's execution at 6 p.m., the network reporters and most of the out-of-town press had left East Texas.
"No one will be here," Fitzgerald says about Burks's execution. He doesn't count the AP, UPI and Huntsville Item reporters who witness all executions, regardless of newsworthiness.
"Remember, the bad guys always wear white," teases a prison chaplain when asked to identify Fitzgerald in a crowd. A lanky man with a long, lined face, Fitzgerald dresses casually for his job in cowboy boots, khaki pants and an open-collar white shirt.
During the week, he lives in Huntsville. But he owns a home in Austin, where his wife and daughter live. He drives to the capital city on the weekends when he is not too tired to make the three-hour trip.
A native of Austin and an Army brat who moved often as a child, Fitzgerald started his career as a newsman. He worked at radio stations, first in smaller markets such as Cleburne and then in Dallas and Fort Worth, including a stint at WBAP-AM. He spent some time in public affairs radio, reporting about such issues as bail bond reforms. For his reporting, he won American Bar Association awards and eventually the attention of the State Bar of Texas, which hired him in 1978 as its public information officer.
In 1994 prison public information chief Glen Castlebury recruited him for TDCJ. "I never thought I'd work for a prison system," Fitzgerald says. But the economics were alluring: His TDCJ post pays $4,100 a month. "Not enough," he says.
"He wanted an old graybeard," Fitzgerald says about Castlebury. Fitzgerald's appealing, low-key manner and competent management of logistics must have helped. "I wasn't looking for a touchy-feely guy," says Castlebury. "I was looking for a news professional."
All over the country, reporters have come to rely on Fitzgerald for fast and friendly service. He returns calls quickly, supplies information readily and simplifies bureaucratic issues.
Although barely detectable in Fitzgerald's genial manner, he and his boss seem to share an ever-present sarcasm directed at the national and international press -- particularly the French media, who swoop down for big controversial executions but rarely surface otherwise. "Karla Faye Tucker, her case was heard worldwide. But for the guy we executed the next night who was just as big or bigger a Christian, no one was there. It's ironic," Fitzgerald says.
"We are in a tremendous position to watch herd journalism," says Castlebury. "I guess we're a little like air-traffic controllers. It's going to be a heavy load tonight."
As for his opinion of the death penalty, Fitzgerald balks at giving it. "It's not germane to the story," he says. "I have never commented on how I feel publicly. If I come out and say I am for it and then I have to go every week and work with death row inmates," he says, pausing and letting his listener fill in the blank. "If I say I am against it, I have Justice for All [a victims' rights group] to deal with. Do I have an opinion? Yeah, I have an opinion. But I'm not going to say."
Fitzgerald goes back to the death row unit to prepare inmates for media visits. He has, with the warden's blessing, forbidden some of the condemned who are uncivilized from engaging in the interview process.
"I'm not going to let that guy who cut the preacher up talk to anybody," says Fitzgerald. He refers to a June 9 attack on volunteer minister William Paul Westbrook by Juan Soria. The 33-year-old inmate, scheduled to die this month for the killing of a 17-year-old Arlington boy in 1985, severely cut Westbrook's arm with razor blades.
Fitzgerald recommends certain inmates for interviews. Thomas Miller-El, a 49-year-old inmate who arrived on death row in 1986, is one of Fitzgerald's picks. "I would not say we have a friendship," says Fitzgerald of Miller-El, "but a relationship of a captor-captive type. We joke around with each other, kid back and forth. It's pleasant."
In November 1985, according to TDCJ's own Web site, a Dallas jury convicted Miller-El of murdering a 25-year-old clerk at a suburban Holiday Inn. Miller-El and his wife robbed the clerk, then tied him up in a closet and shot him with a 9mm handgun.
Asked about Miller-El's appeal chances, Fitzgerald shakes his head. "He's been here a long time."
At the inside gate of the Terrell Unit, 12 reporters, photographers and broadcast crew members are lined up with their bulky equipment.
One by one, they pass their driver's licenses through a slot in a window to the female guard inside. In return, they each get a two-inch red plastic visitor tag.
The group is ready to go in, but Fitzgerald wants to wait a little longer for Geraldo Rivera. As the group starts to get restless, one of Rivera's researchers enters the foyer, out of breath. "They are on their way. They are just stuffing cheeseburgers in their mouths."
Fitzgerald is not sympathetic. "Let's go ahead, I'm not going to wait for Geraldo. The hell with it."
Lining the pathway between the prison gatehouse and the main building, rose bushes, marigolds, zinnias and petunias are in spectacular full bloom. "You want to take a little time to smell the flowers," Fitzgerald jokes with ABC correspondent Mike Van Fremd.
As soon as the group arrives in the room set up for inmate interviews, Fitzgerald starts directing reporters to chairs. The interview room is shaped like a T, one long hall and a wider foyer with table, chairs and vending machines. Along both sides of the hall are eight bulletproof and shatterproof windows. Each looks into a cubicle. Each cubicle has a door on the other side that locks, a chair and a telephone. On the other side, prison guards lead the inmates one by one to the assigned cubicles and lock them in. The prisoners and reporters see each other through the windows and talk through telephones.
Each assigned to a window, the ABC, NBC and Telemundo camera crews start setting up their equipment before the inmates arrive. Some two dozen people and all of their equipment are crammed into a space no bigger than a good-size cloakroom. Most whisper.
Van Fremd's voice rises above the others. When Gary Graham, a thin man with a goatee and mustache and large intense eyes that are slightly bloodshot, enters his cubicle, Van Fremd grabs his receiver.
ABC-Monday Night Football, he says, by way of identifying his affiliation. Van Fremd tells Graham that he is going to call him sir. Graham recently had begun asking reporters to refer to him by the African name Shaka Sankofa.
Having made his introduction, the ABC correspondent moves from the window while his crew keeps tinkering with their equipment. Earlier, Fitzgerald says, he told ABC and the Rivera team that they each have about 40 minutes with Graham. Reporters have been known to ignore the time limits. "I've had to ask people to leave," he says. "I tell them, 'It's three o'clock. It's over.' I've told the correction officer to take the inmate out of his cell. So the reporter sits there looking at a blank window."
Right now, with Rivera apparently still eating, inmates outnumber the interviewers. Paul Nuncio, who is scheduled to be executed the next day, is staring at an empty chair.
As a freelance photographer snaps shots of Graham, the inmate puts his hand against the glass so the image the camera captures has a forlorn look. For an AP photographer, Graham will stand in the back of his chamber, fist raised in defiance. That's the photo that will appear in The Dallas Morning News.
"It's a lot more intense now," Graham says about the attention he is getting. "The media is beginning to examine the whole system."
He doesn't mind all the questions, even if they invade his privacy. At this late date, what's the value of privacy, anyway?
"It's beyond that now," he says.
After checking with his cameraman about whether he looks better with his jacket open or closed and warning the operator, "Try not to be too tight on me," Van Fremd says to Graham, "Stories like this are tough for me. As I understand it, it is not looking very good for you. I want you to say what you think of the system."
Van Fremd then proceeds to ask Graham what Huntsville Item staff writer Michelle Lyons later refers to as "television questions."
"How are you holding up? Is this any kind of life worth living?" Van Fremd asks.
Having matched everyone up, Fitzgerald usually sits back and watches, but today he has to fetch Rivera and his crew. They have finished their cheeseburgers.
In a black suit jacket, black shirt and black pants, Rivera slips into the chair in front of the cubicle where inmate Anthony Graves awaits. Now 34, Graves was convicted in a mass murder of six people in Somerville in 1992. "Anthony Graves had nothing to do with it. I lied on him in court," Robert Earl Carter, whose previous testimony had put Graves on death row, confessed in late May, moments before his own death by lethal injection.
Known for his pugnacious manner on television, Rivera redeems himself in person. He makes no lengthy introductions. He talks quietly and uses no notes. "You help kill those people?" he asks Graves. "Do you have nightmares about it?"
"Hey, God, I hate to ask this," Fitzgerald, looking at his shoes, tells Rivera's producer after the correspondent finishes his next interview with Graham. "I've got a secretary in the warden's office who wants to meet Geraldo."
"Not a problem, not a problem," the producer replies.
"I'm so glad I brought my get-out-of-jail pass," Rivera jokes a few minutes later with the woman and her colleagues.
Ready to head to Houston, Rivera trots to the Terrell Unit gate and sees that a Texas downpour has begun. "I have airtime at six-thirty. I can't go into that," he says, panicking.
The Terrell Unit assistant warden tells a prison trusty, "Go out there and get the car for them."
"We wouldn't want all that hair spray to run off onto our parking lot," Castlebury says later.
Fitzgerald has to leave the Terrell Unit promptly at 3 p.m. to make sure he returns to Huntsville in time for Burks's execution.
Calling ahead to the office, he learns that Burks's date is set in stone.
Two days before Burks's execution, Waco Judge Walter Smith ordered the state to postpone the lethal injection because he said a reprieve he'd issued two years earlier was still in effect. Within a day, however, the attorney general's office had successfully appealed the judge's stay to the Fifth U.S. Circuit Court of Appeals. Burks's last hope was the U.S. Supreme Court. Burks had exercised the right of every death row inmate to have all of the justices in Washington review his case.
Justice Anthony Scalia, a hard-liner on criminal defense issues, is responsible for presenting death row cases that come from Texas to the others on the bench. But the highest court in the land that morning had denied his petition.
To prepare for Burks's death, Fitzgerald returns to his office in Huntsville, where the technology boom has yet to hit. The prison system is still the primary employer. The town has a population of 35,000; 13,000 inmates live in the seven surrounding prisons, and 7,000 TDCJ employees work to keep them incarcerated.
At 5 p.m., one hour before Burks is scheduled to die, downtown Huntsville is business as usual. At King's Candies on the town square, senior citizens merrily devour ice cream sundaes. None has any idea that John Albert Burks's execution is scheduled for that evening.
"There are so many these days," the owner of the store says. "It's hard to keep track."
By 5:30 p.m. in Fitzgerald's office, the regulars -- reporters whom he'd earlier referred to as "no one" -- have already gathered. Fitzgerald guarantees a witness seat at every execution for UPI, AP and The Huntsville Item. State law allows five reporters to witness any execution. But since Fitzgerald has permanently pledged three seats to the news services and the local paper, only two other slots are available. One goes to the Houston Press sister publication, the Dallas Observer.
Huntsville Item reporter Lyons and UPI correspondent Wayne Sorge have plopped themselves onto a couch in Fitzgerald's office. Mike Graczyk, the AP reporter, sits off to the side. Graczyk has worked this beat for six years. He has earned the dubious distinction of having witnessed more state-sanctioned executions than any other man in the Western world. He spends much of his time staring at his portable computer.
Passing time before execution officials telephone with the green light, Fitzgerald and the familiar gang talk about the commotion surrounding the Graham execution, scheduled eight days away. "It won't be like Karla Faye Tucker," says Fitzgerald, referring to the woman executed in 1998 amid an international outcry.
So far, the only international press that have shown an interest in Graham are English and German. Not the French, who failed to get a seat at the Tucker execution, something Fitzgerald recalls fondly.
"We are in Texas. That's been our policy: Texas media first," he says with a smile. "Not that I dislike the French. They always waved at me. With only one finger, but they waved. I didn't realize I spoke French until I saw that."
European journalists make no bones about their revulsion for Texas's killing machine. Two years ago Julia Stuart, a reporter for the London Mail, wrote a scathing column about Fitzgerald and his regular crowd of execution reporters. The story led with an anecdote about how Fitzgerald and the reporters had gobbled down birthday cake -- Graczyk's -- minutes before an execution.
Lyons concedes there is a tacit understanding not to talk death penalty politics among the regulars in Huntsville. Asked where she stands, Lyons responds: "None of us says. We can't say."
Fitzgerald speculates that the largest protest may have been for a Mexican national whose name no one in the office recalls.
"Who was that?" Fitzgerald asks Graczyk, who started on the beat before the TDCJ spokesman got his job. "Remember they shut down all the bridges to Mexico? Goddamn, what was his name?"
"I can't even remember the last one," says Sorge, the UPI reporter, with a laugh.
It's 5:58 p.m. when Fitzgerald's phone rings with the call from the death house.
"Let's go to the party," Graczyk says sarcastically as the group files out.
First they have to cross the street from the TDCJ administration building to the death house, a former prison known as The Walls. Inside, a guard searches each reporter with a metal detector. The condemned man's and the victim's families and friends arrived earlier and have been kept in separate waiting rooms. Members of the victim's family have spent the day getting counseling from a trained state employee for what they're about to see. "If you have a problem with it, don't do it," Dan Guerra, the assistant director of the victim services division, says he tells victims' survivors.
At this point, the reporters are split up. Some go into the witness rooms with Fitzgerald and the victim's survivors; others will follow Castlebury into the room with the inmate's family.
Fitzgerald warns a reporter not to ask any questions of Jesse Contreras's family.
Fitzgerald and Graczyk chat among themselves in the hallway. The AP reporter is an encyclopedic resource. Graczyk interviews every condemned man in Texas before his execution, unless the inmate refuses his request.
At 6:01 p.m., before anyone enters the witness rooms, guards are removing Burks from a holding cell and strapping him to a gurney to wheel him to the death chamber.
Once Burks is in place, other guards lead all the witnesses to their designated rooms. Throughout this procedure, the guards keep the inmate's family and the victim's family separated. They never pass in the hall. But to get to their respective witness rooms, they all have to walk through a courtyard.
Again, like the pathway at the Terrell Unit, the space is landscaped with bizarrely cheery flowers. Roses, marigolds and periwinkles are all blooming. An armed guard looms above.
The death house, Fitzgerald says, is "probably about the most low-maintenance place in the system." "Changing sheets," he says. "That's about it."
As the guard opens the door to small quarters from which witnesses will view the death chamber through a Plexiglas window, Fitzgerald says in apparent jest, "Do I have to go?"
For the uninitiated, the sight of the occupied death chamber is unsettling. With a warden standing directly behind him, Burks lies on the gurney. His legs, arms and chest are strapped down. Only his head can move.
Burks, who told his lawyer and reporters that he cannot read and can only copy what others have written, has a youthful, open face for a 44-year-old man. He looks surprisingly calm. From the ceiling, fluorescent lights cast a glare. A microphone hangs with its business side inches away from Burks's mouth. Allowed to choose his clothes from a selection of street apparel available at TDCJ, Burks is wearing brown pants, a T-shirt and sneakers with dark blue laces. Non-toxic saline solution, used to keep the poisons from crystallizing in his veins, has already started flowing into the intravenous tubes.
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.
January 20, 1989 -- the day of the elder George Bush's presidential inauguration -- also sealed Burks's fate. That day, he is said to have fired four bullets into Jesse Contreras, a 63-year-old tortilla factory owner who threw trash cans 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'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.
Strothers also contends that Burks's cousin Bilton, who died in 1997, had plenty of opportunity to recant his testimony if he really thought Burks didn't murder Contreras.
But Nancy Cobb, Burks's sister, recalls that her cousin had told her from the get-go that he was pressured into his testimony by Strothers. "He said, 'They were going to nail his balls to the wall,' " she recalls. "Everyone knew it was all lies anyway."
Strothers says he seriously considered attending Burks's execution after one of Contreras's family members requested his presence. In the end, however, he stayed home. "It's not that I don't have the stomach for it," he says. "I don't mind shooting my dog. But now I am a sitting judge, and it would look funny if I went to executions."
At 6:09 p.m. the executioner began injecting what the TDCJ Web site says is $86.08 worth of drugs, the same drugs doctors sometimes use to save patients. At 6:11 p.m. the executioner signaled to other officials that he had administered the lethal dose.
In the tight quarters of the witness room, where five of Contreras's family members, two reporters, Fitzgerald and two other TDCJ officials had squeezed into a space of about four feet by ten feet, Burks's heavy last breaths were picked up by the mike and readily audible to the witnesses. His eyes closed.
Coming from an air vent, a cry pierced the air. "Oh, no, Lord have mercy," the voice called. It was Burks's sister Cobb, in the other witness room, separated by one wall.
Lyons, who was watching in Cobb's room, said the sister pounded at the wall and muttered something like, "Get me out of here." The guards ushered her out.
Fitzgerald was among the most restless in the Contreras family's room. One of the man's daughters dabbed her eyes. But Fitzgerald paced in the corner the whole time, constantly glancing at his watch.
"When's the doctor coming?" he whispered to a guard. He sighed and shook out his legs as though they had knots in them.
The doctor, a bearded man in a blue suit and glasses, whom Fitzgerald would not identify, finally entered at 6:15 p.m. For three long minutes, he examined the patient's chest and face. Then a voice pronounced Burks dead.
The guard standing beside Fitzgerald immediately knocked on the door, and someone outside opened it.
When Fitzgerald and the reporters reassembled in his office, Graczyk, the AP reporter, started typing his account. Fitzgerald grabbed a stack of phone message slips and began dialing.
For the reporters, one more event that evening needed to be recorded. The victim's family had prepared a statement, which Fitzgerald said they would read shortly.
Castlebury popped his head in the office to offer another detail for the newspapers. Burks's body would be cremated, and a Swedish woman, the Sonya he mentioned in his last words, would take the remains back to Europe. The two of them had been writing each other.
Many of the bodies of executed men, Fitzgerald says, are never claimed. They are buried in a cemetery maintained by supervised inmates a mile and a half from the Walls Unit.
Soon Fitzgerald's assistant distributed a fill-in-the-blanks form to the reporters. It is the official account of the execution. The one-page sheet gives the precise time when guards took Burks from the holding cell and strapped him to the gurney, when the executioner injected the saline solution, when Burks started his final statement, when the executioner injected the lethal dose and when the doctor pronounced Burks dead.
The form also has spaces for what are categorized as unusual occurrences. For Burks's execution, those were left blank.
Fitzgerald's office puts together a complete press package for each execution. The white folders include a page titled "Deathwatch" that lists Burks's activities for the past three days, including his hefty last meal: fried chicken, a pound of bacon, a 16-ounce T-bone steak (well done), Big Red soda and coffee. TDCJ rules forbid gum, alcohol and tobacco. His prison record and a summary of the crime for which he was condemned are also included.
Back at his office, Fitzgerald asks the reporters simply, "Why did the turkey shoot the guy?"
"The old man wouldn't give up the money, and I think he may have used the N-word," replies Witherspoon, the Waco reporter and the last one to interview Burks.
It's nearly 7 p.m., and the victim's family has still not emerged. Lyons, like most of the witnesses, wants to go home. "Can you give us a copy of the statement?" she asks Fitzgerald.
"They want to read it," he says.
No one in the room seems ready to defy Fitzgerald and leave.
A few minutes later Gloria Torres, the victim's oldest daughter, stands in the TDCJ administration building lobby in front of the reporters. Torres is composed. She did not witness the execution. "We wish to express our sincere condolences to his survivors," she says. "We, too, know how devastating is the unnecessary and premature loss of one that we greatly love."
A TV reporter who has joined the group asks whether she feels better knowing Burks is dead. "The Bible says an eye for an eye," Torres says. "But had he not been executed, I could have lived with that."
Larry Fitzgerald had already headed back to his office. He'd had enough for one day.
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