PAST, PRESENT AND FUTURE

Phil Burleson'S Spirit Lives On As His Firm Fights For A Client It
Hasn'T Seen In 28 Years

Good Spirit," he pursued, as down upon the ground he fell before it:
"Your nature intercedes for me, and pities me. Assure me that I yet
may change these shadows you have shown me, by an altered life." --
Ebenezer Scrooge, from Charles Dickens' "A Christmas Carol"

As Charles Edward Garrett completes the first full year of the life
sentence he received almost 30 years ago, he tries to stay optimistic
that people on the outside -- his girlfriend of nine years, his
attorneys, three appeals court justices -- can get him out.

"The only thing I can do is pray and hope," he says from his cell in
Abilene's French Robertson Unit of the Texas Department of Criminal
Justice. "I wait here and weep until it is over."

Garrett tries not to dwell on the past. Rather, he awaits a ruling
following the Dec. 15 oral arguments on his appeal before the 5th
Court of Appeals in Dallas. And he focuses on the future.

On Feb. 12, 1970, Garrett was also waiting, this time for a Dallas
jury to come back with his sentence. Earlier that day, the jury had
rejected his not-guilty plea and convicted him of drug possession. An
admitted drug addict, Garrett was busted with less than 2 grams of
heroin in 1968. With no prior convictions, he faced a minimum of two
years and a maximum of life -- the uniform punishment for any amount of
controlled substance in Texas.

Garrett had hired renowned Dallas criminal-defense attorney Phil
Burleson to defend him. Burleson, a former assistant district attorney
in Dallas and briefing attorney for the Court of Criminal Appeals, had
made headlines for his efforts in winning Jack Ruby a new trial.

"Everyone knew who he was," confirms Garrett. He figured if Burleson
couldn't help him, no one could.

Although Burleson knew his way around a criminal case, even he
couldn't win them all. And Garrett says he could see what was coming
next. It hadn't taken long for the all-white jury to find him guilty,
and he had heard of juries handing down life sentences for a single
joint. As an African-American heroin junkie, Garrett didn't think he92d
merit their mercy.

So he ran.

Jay Mills, who tried the case with Burleson, says neither he nor
Burleson expected the jury would give Garrett a life sentence, and
they certainly never thought their client would flee.

"Garrett had his wife and child in the front row when we made the
punitive argument," recalls Mills, who now practices in Henderson
County. "The jury went out and they were out 30-40 minutes when Phil
and I went to the bathroom, and Garrett came in there after us. Well,
the bathroom isn't 30 feet from the courtroom, and we hadn92t been in
there a minute, and the jury came back with a verdict. Phil and I came
back, but Charlie didn't. And I haven92t seen him since. End of story."

Lacking a defendant, Judge John Vance -- who would later spend more
than a decade as Dallas County district attorney -- noted in the trial
docket that the punishment was "fixed by jury." Although he was
authorized to do so, the record does not reflect that Vance ever
entered a judgment in absentia. The file languished in the 194th
Judicial District Court, awaiting Garrett's return.

After the trial, the only entries speak to the final bond hearing; the
last is dated Sept. 17, 1971. Thereafter, there is only a note,
stapled to the top of the docket in the 1980s: "Is there anything that
can be done or what is going on with it? It looks like all of the
warrant[s] are in jacket so is he just gone forever? It is a 1968
case!" implores the typewritten portion of the note. A handwritten
answer follows: "Leave in unapp/warrant is active!"

The police finally caught up with Garrett on Oct. 12, 1998, and
arrested him at the Dallas medical school where he worked as a
maintenance man under an assumed name. In his 28 years on the lam,
Garrett had kicked his drug habit, stayed sober and straight, paid
taxes -- even served on a jury.

"I'm just surprised that a person could stay out there that long while
they were wanted by the authorities. It wasn't like someone forgot to
put him in the computer -- it was there waiting for him," says Mills.

When the court called Dallas-based Burleson, Pate & Gibson to say its
client was back, Burleson had been dead for three years. But partner
Richard Anderson says the firm immediately picked up where its founder
left off.

"There was never a doubt that we'd take the case," says Anderson, who
is handling the case with partner Tom Pappas. "I think there is a
circuity to it, a feeling of completeness."

Pappas agrees. "When Phil was someone's attorney, he was their
attorney for life. He felt a strong loyalty to people he had helped,
and that was kind of the way we looked at it, too."

But Anderson and Pappas faced two major problems: All of the court
reporter's notes had disappeared, and the Dallas District Attorney92s
Office was determined to enforce the jury's verdict.

On Feb. 2, 1999, Judge Harold Entz officially sentenced Garrett to
life in prison. Garrett began waiting again -- this time behind bars.

Cold Comfort

A review of the initial case file shows Garrett didn't lose from his
attorneys' lack of trying. The file is thick with motions and briefs
to get information and suppress evidence. Burleson filed motions to
ensure that the pre-trial evidentiary hearings and voir dire were on
the record, and even handwrote a motion to quash the indictment during
the trial. From the record, it seems Burleson had an eye toward appeal.

Indeed Burleson had a reputation for tenacity and attention to detail
in both the trial and appellate court. In a posthumous tribute
published in the South Texas Law Review, Dallas lawyer Robert A.
Fanning recalls how Burleson once appealed a death penalty decision 19
times until he won his client a reprieve.

"If anyone could have won this case, Phil Burleson could have," says
Houston criminal lawyer Brian Wice. "Back then, on criminal appeals
out of Dallas County, he was the gold standard."

Dick DeGuerin, who began practicing in 1965 and worked with Phil
Burleson, agrees, and adds that appeals were commonplace in those days
because Dallas DA Henry Wade took a notoriously tough stance on crime.

"It was said all over the country all you had to do in Dallas as a
prosecutor to win a criminal case was to stand up, read the charges
and sit down," he says.

But lawyers on both sides agree that if Garrett had simply gone to
prison in 1970 and behaved, he would be a free man today.

First Assistant DA Mike Carnes estimates that under the 1970 parole
laws, Garrett would have been eligible for parole after approximately
seven years, assuming good behavior. Anderson puts the number at 10 to
12.

Had Garrett's actual time extended to the early 1980s, however, South
Texas School of Law Professor Neil McCabe says Garrett likely would
have been sprung as Texas emptied its prisons of nonviolent offenders
to ease overcrowding.

"It wasn't even a matter of being paroled, they were just turning
people out," says McCabe, who teaches criminal law.

This speculation is cold comfort to Garrett, who remains unconvinced.
He says that if he had it to do over again, he would still run.

"I still think it was right," he maintains. "Had I come into prison
then, it wouldn't have done me any good -- they didn92t have drug
rehabilitation."

Pappas says he and Anderson are prepared to exhaust every avenue of
appeal and, barring success, they will petition the governor for a
commutation or a pardon.

"Garrett retained us, but long after that's gone, we just aren92t
quitting," he says. "Number one, it's wrong what they92re doing to Mr.
Garrett, and number two, it's what Phil would have wanted."

Changing Times

While Garrett was ducking his Texas sentence, the laws he was
sentenced under changed significantly.

As the 1970s progressed, Texans softened their attitudes on drugs and
drug offenses, becoming more understanding as Vietnam veterans
returned with addictions and social mores loosened across the country.
In 1973, the state's Penal Code Revision Committee rewrote the code
and implemented it on Jan. 1, 1974. Ironically, Burleson was at the
forefront of this reform.

Among the myriad revisions contained in the new code was a more
sophisticated approach to punishing drug offenses called graduated
penalties. Sentences were now based on such criteria as drug type,
amount and whether the defendant stood accused of dealing or possession.

Today, possession of less than 2 grams of heroin -- the crime for which
Garrett received life in prison -- carries a maximum sentence of 10
years and is often coupled with state-sponsored drug counseling and
rehabilitation. Most lawyers agree that a possible outcome is a
suspended sentence.

Attitudes toward jury selection also changed after Garrett fled the
courtroom. In 1986, the U.S. Supreme Court finally acknowledged what
defense lawyers across the country complained about for decades:
Racism influences jury selection. In the landmark case Batson v.
Kentucky, the high court prohibited race-based peremptory strikes
during voir dire. Neither Garrett's lawyers nor the DA have formally
addressed the issue of racism in Garrett's jury selection, but
observers comment that racism could have played a role in his sentencing.

"There were a lot of all-white juries in those days because lawyers
were doing peremptory strikes to get minorities off juries. This guy
may well have had a different jury if it would have happened now, but
of course, that is hindsight," says McCabe.

DeGuerin verifies that race-based jury selection was common practice,
and admits he did it while at the Harris County District Attorney's
Office in the late 1960s.

"If we had enough strikes, we'd always strike all the blacks on the
jury because they were generally less favorable to the prosecution
than the defense," he says. "I'd be surprised in 1970 if there were
many black jurors serving in Dallas. I'm not criticizing Dallas,
that's just the way things were done back then."

Adds Randy Schaffer, of Schaffer, Lambright, Odom &
Sparks in Houston: "If this isn't racism, then I don92t know
what
is."

In the Court's Hands

At first blush, the cards seem stacked against Garrett. Without a
record of the trial, his best shot at freedom is the "Lost Record
Rule" in the Rules of Appellate Procedure, which provides for a new
trial where a significant portion of the court reporter's notes and
records have been lost or destroyed, and the notes and records are
necessary for an appellant's appeal. The catch, however, is that the
appellant must be without blame for the missing records.

Earlier this year, the appeals court abated Garrett's appeal and
directed the trial court to hold a hearing to address the absence of
the trial record and determine who was to blame. The trial court
concluded that the notes were indeed lost or destroyed, and that
Garrett contributed to the situation. But the trial court set forth
four additional factors it considered equally responsible for the
unavailability of Garrett's trial record, including the judge92s
failure to sentence him in absentia and the court reporter's death.

Upon receiving the trial court's findings of fact, the appeals court
issued an order to reinstate Garrett's appeal. But it adopted only one
of the trial court's five conclusions as to fault -- the one citing
Garrett's voluntary absence. Anderson and Pappas filed a motion for
rehearing of this order, which the court denied. But, the court
granted leave to include an argument regarding the order in the
appellant's brief.

In his Dec. 15 oral argument before Justices Ed Kinkeade, Tom James
and former Court of Criminal Appeals Justice Chuck Miller, who sat as
a visiting judge, Anderson outlined the procedural history of
Garrett's case before beginning his argument.

Looking back over the court's rulings, he said, gave him "some idea of
the uphill battle I face arguing appellant's error."

Anderson acknowledged that the appellate court had the power to adopt
what it wanted from the trial court's findings. But he asked the court
to consider the harm that would result if Garrett could not get a new
trial and was forced to appeal on the existing record. This would mean
Garrett would proceed on little more than pleadings and an indictment.

Anderson said this distinguished Garrett's case from others where only
portions of the trial record or certain exhibits were missing.

"Here we know there was a trial. We know there was a motion to
suppress hearing before the trial. We know there were pretrial
hearings. For these reasons, we know the harm is apparent. This is not
a case where the court can look to other aspects," he said.

Anderson also urged the court to consider the uniqueness of Garrett's
situation.

"I submit that this is a different kind of case, and not likely to
happen again," he said, in part because the rules regarding sentencing
in absentia have changed since 1970.

But Assistant District Attorney Lisa Braxton Smith called Anderson's
argument a "wonderful flight of fancy," and asked the court to simply
follow the language of the rule.

"He is ignoring the fact that he ran away for almost 30 years, and we
cannot prove he was without fault. . . . The rule does not say `solely
at fault,' it just says `if he is at fault,92 " she argued. "He assumed
the risk by taking flight that the record would be lost or destroyed."

But the court seemed loathe to characterize the case as one of simple
statutory interpretation.

"It appears we might be here because there's a very heavy sentence in
this case for a crime that is now a state jail felony," surmised
Justice Kinkeade.

Following Anderson's rebuttal, Justice Kinkeade posed a candid
question to the lawyers, who were still at their podiums. It is the
same question that many are asking about Garrett's case: "Is there no
other way that this can be disposed of without an opinion? Is there no
mercy anymore?"