Metropolitan News-Enterprise


Wednesday, March 26, 2008


Page 1


Court Orders Release of Man Who Killed Wife Over Affair




A Sacramento man who has served more than 24 years in prison for killing his wife after learning that she was having an affair with another woman is not a danger to society and is entitled to release on parole, the Third District Court of Appeal has ruled.

The justices Monday granted Clarence Burdan’s petition for a writ of habeas corpus, saying there was no evidence in the administrative record to support Gov. Arnold Schwarzenegger’s conclusion that the gravity of the crime alone established that Burdan’s release would create an unreasonable risk to the public.

Burden shot and killed his wife while they were sitting in her car on Nov. 22, 1983. A next-door neighbor who was a Sacramento police officer grabbed Burdan after the shooting, took away his gun, and handcuffed him to a light post as Burdan asked the officer to give him a gun so that he could shoot himself.

Subsequent investigation showed the Burdan had shot his wife eight times with a gun that he had borrowed from an acquaintance the day before. He told the gun’s owner he wanted it for target practice.

Burdan and his wife, the parents of two children, had been having marital problems, and Burdan’s wife had told him she planned to leave him. Burdan had recently learned about his wife’s affair with a co-worker, and had seen the two having sex at the co-worker’s home.

After entering a plea of guilty to second degree murder, Burdan said that he had borrowed the gun and purchased ammunition with the intent of killing himself. After he and his wife argued in the car, however, he pulled out the gun, she grabbed it, and it went off.

Burdan said he fired repeatedly because he knew his wife was shot and did not want her to suffer. He also tried to kill himself, but the gun did not go off, and when he tried again, his police officer neighbor intervened, he claimed.

The parole board found him unsuitable for release seven times between 1991 and 2002. In 2003, the board voted to grant parole, but then-Gov. Gray Davis overruled it, and the courts denied habeas corpus relief.

Under state regulations, a life prisoner who has served enough time to be eligible for parole is considered unfit for release if that would result in “an unreasonable risk of danger to society.”

A finding of unreasonable risk must be based on one or more of six factors—the manner in which the underlying crime was committed, a previous record of violence, an unstable social history, the prior commission of a “sadistic” sexual assault, a lengthy history of severe mental problems, or serious misconduct while in prison.

The inmate, the regulations say, is entitled to have certain factors weighed in his or her favor in assessing the risk that he or she would pose if released. Those factors are the lack of a record of juvenile violence; the existence of a stable social history; remorse for the crime; the existence of significant stress, or of battered woman syndrome, that can account for the commission of the crime; the lack of a significant prior criminal record; advanced age; realistic plans for release; and participation in institutional activities.

A finding of suitability for release may be reversed by the governor, but only on the basis of the same evidence that was before the board.

In 2005, the board again voted to release Burdan on parole, finding that he had no other criminal record, had stable social relationships, had undergone therapy, had employable skills, and had committed no serious violations of prison rules. But Schwarzenegger reversed the decision, saying the murder was committed “in a dispassionate and calculated manner,” and a Sacramento Superior Court judge upheld the governor.

Justice Harry Hull, however, said the decision was unsupported by the record, and could not stand, even under the deferential “some evidence” standard. For the governor’s decision to stand, the justice explained, there must not only be evidence that the inmate committed a “grave” offense, there must be evidence that he is dangerous.

What the evidence actually showed, Hull said, was that Burdan was under significant stress at the time of the crime as a result of his marital problems. The fact that he borrowed the gun and purchased ammunition for it, the jurist wrote, did not establish that he was planning the murder, because he may have initially intended to kill himself, as he claimed.

“[T]he fact that Burdan intentionally killed his wife is not a permissible factor, inasmuch as malice is one of the minimal elements of second degree murder...and malice involves either an intent to kill or an intent to commit an act, the natural consequences of which are dangerous to human life,” Hull wrote.

“....Thus, the Governor’s justification for denying parole, in the face of overwhelming factors supporting it, is reduced to the fact that he shot his wife multiple times at close range,” which is not enough as a matter of law, the justice said.

The case is In re Burdan, 08 S.O.S. 1698.


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