Metropolitan News-Enterprise


Monday, December 15, 2008


Page 3


Court Again Orders Release of Man Who Killed Wife Over Affair


By a MetNews Staff Writer


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 ruled Friday.

The ruling is the second by the panel in favor of Clarence Burdan. The court granted his habeas corpus petition in March, but was ordered by the state Supreme Court to reconsider its decision in light of two intervening high court rulings.

Burdan 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.

In its first ruling, the Court of Appeal said the governor’s 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.

The high court subsequently decided In re Lawrence (2008) 44 Cal.4th 1181 and In re Shaputis (2008) 44 Cal.4th 1241. The justices ruled that while the egregiousness of the conviction offense may be used to predict future dangerousness, the parole board, or the governor in exercising his power to veto releases, must cite “some evidence” that the prisoner is dangerous, not merely some evidence that the underlying offense was particularly egregious or that some other unsuitability factor applies.

Justice Harry Hull, writing Friday for the Court of Appeal, said Burdan must be released under the standard set by the high court.

The governor, he explained, had done nothing more than recite the circumstances of the underlying offense, which, although serious, could not support a denial of parole when “all postconviction evidence in the record supports the determination that the inmate has been rehabilitated and no longer poses a danger to public safety, and the Governor has neither disputed this evidence nor related the commitment offense to current circumstances to suggest the inmate will continue to pose a danger if released.”

The case is In re Burdan, C056099.


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