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Thursday, October 26, 2000

Man who killed Houston jogger to be resentenced
Conviction upheld, but murderer's lawyer acted ineffectively, Court of Criminal Appeals rule
By Jim Vertuno
Associated Press
AUSTIN - A man sentenced to death for strangling a Houston jogger should be resentenced because he had an ineffective defense lawyer who failed to recognize improper statements made by prosecutors, the Texas Court of Criminal Appeals ruled Wednesday.
   The court's 7-2 ruling affirmed the capital murder conviction of Arthur Lee Burton, 30, but ordered that he be resentenced. Prosecutors could seek the death penalty again.
   Harris County prosecutors said they would ask the court to reconsider its ruling.
   Burton confessed to sheriff's deputies to killing Nancy Adleman, 48, who was abducted while jogging in her neighborhood in July 1997.
   Adleman was strangled with her shoelaces as she screamed for help while Burton tried to rape her.
   Burton recanted his confession on the witness stand and said he did not kill Adleman. The jury took about 30 minutes to sentence him to die by lethal injection.
   Before sentencing, the trial judge's written instructions to the jury said that if Burton was sentenced to life, he would not be eligible for parole for at least 40 years.
   Prosecutors, however, warned jurors that if sentenced to life, Burton could be released in as little as two years if the Legislature were to change state sentencing laws.
   Burton's trial attorney, Wilford Anderson, did not object to that statement but instead said such a change in the law would not happen in a state with Texas' reputation for being tough on crime.
   Burton's appeals attorney, Janet Morrow, said the warning was improper and that Anderson should have objected immediately.
   The prosecutor "can't just create a false fear that he'll be out of prison in five years," Morrow said. "The jury has to apply the law the judge gives them."
   The appeals court agreed, adding the prosecutor's warning essentially told jurors to ignore the trial judge's instructions.
   Defense attorneys should have recognized such a fundamental error, the court said in the majority opinion written by Judge Cheryl Johnson.
   Failure to object served to prejudice the jury against Burton. Anderson's non-response to the prosecutor's statements and his own closing arguments "reflected his ignorance of the law," the court said.
   Anderson did not immediately return messages seeking comment.
   "This court has long held that a criminal defense lawyer must have a firm command of the . . . governing law before (the lawyer) can render reasonably effective assistance," the court said.
   Julie Klibert, assistant district attorney for Harris County, said she didn't believe Anderson's conduct harmed his client.
   "We don't believe it rose to the level of being ineffective," she said, adding that prosecutors stood by their statements to jurors.
   "It gave some information but we don't feel it was improper," she said.
   Presiding Judge Michael J. McCormick and Judge Sharon Keller dissented from the majority opinion. The judges said the prosecutor's statements were speculative but truthful and did not violate Burton's rights.
   Consideration of a defendant's "future dangerousness" allows such an argument, wrote McCormick and Keller.

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