Defense looking to governor as execution nears
HOUSTON â€“ When Gary Graham was convicted of killing Bobby Gene Lambert during a 1981 robbery in a grocery store parking lot, the verdict drew little notice. There was a mention on the local TV news, a short story inside the papers, but not much else.
But the approach of Mr. Graham's execution, scheduled June 22, is triggering protest rallies, demands from national organizations for a reprieve and criticism by Hollywood celebrities who argue that Mr. Graham is a victim of injustice.
The reason for the increased attention is simple, argues Jack Zimmermann, a veteran defense lawyer and member of the Graham team: "We've got an innocent man here about to be executed."
But there's more to it than that. The Supreme Court rejected what was billed as Mr. Graham's final appeal last May. Lawyers plan to ask the high court one last time to intervene, an admitted long shot.
So they are pushing hard for last-ditch clemency from Gov. George W. Bush, the presumptive Republican presidential nominee. They acknowledge playing on national interest. "We live in a political climate, and the death penalty is a political institution for better or worse,'' said Graham lawyer Richard Burr.
Prosecutors who sent Mr. Graham, now 35, to death row argue that he is guilty, and a series of appeals courts have ruled all post-conviction evidence disputing his guilt either uncompelling or untimely.
Death penalty backers say the controversy is fed by trumped-up claims. "The Gary Graham innocence saga is probably the greatest fairy tale ever written," said Dianne Clements of Justice For All, a Houston-based anticrime advocacy group originally organized to debunk Mr. Graham's claims.
During his first 12 years on death row, Mr. Graham, who was 17 at the time of the crime, and his case were not widely noted. Routine appeals were pursued without success.
But in 1993, Mr. Burr, nationally known in death penalty cases, and Mr. Zimmermann, a well-known Houston defense lawyer, joined the case.
They have made headway by arguing that Mr. Graham's inexperienced, court-appointed trial attorney did not confront the jury with evidence â€“ readily available in the police file â€“ that could have prevented a conviction.
As a result, the effort to force a new trial has gotten increasing attention, including backing from celebrities such as actors Danny Glover and Mike Farrell. "It's partly the merits of the case," said Richard Dieter, director of the Washington-based Death Penalty Information Center. Mr. Graham has, at least in the eyes of his advocates, "a credible claim of innocence."
The uproar also is due partly to circumstance, Mr. Dieter said.
Mr. Graham â€“ who has taken the name Shaka Sankofa â€“ happens to be in Texas, the national leader in executions and prime target of the anti-death penalty movement, and Mr. Bush is running for president as a tough-on-crime candidate who claims Texas only executes the guilty.
"If this case weren't in Texas, it wouldn't be getting as much attention," Mr. Dieter said.
Americans appear to be growing more receptive to death penalty challenges.
In 1981, crime was a big issue and the nation was emerging from a decade-long, Supreme Court moratorium on the death penalty. Only four people had been executed in the United States since the moratorium ended in 1976.
Last year, 97 people were executed nationwide, 35 in Texas. The national total has passed 600 people put to death since 1976 and more than 3,600 others now await execution.
A recent Gallup poll indicates a majority of Americans still support the death penalty but support is at its lowest level since 1981, according to the Death Penalty Information Center.
There are new demands for taking as much care as possible, to ensure that only the guilty are put to death. There's a push to use new DNA technology, unavailable until now, to re-examine old evidence.
"You've got a lot more people embracing this particular movement," said DeLoyd Parker, director of SHAPE Community Center in Houston and a leader of the effort to save Gary Graham.
Even such conservative stalwarts as the Rev. Pat Robertson have expressed support for a death-penalty moratorium.
"I never thought he and I would be on the same side," said Mr. Farrell, who played B.J. Hunnicutt in TV's M*A*S*H, is active in human rights causes and opposes the death penalty on principle.
Mr. Farrell said he was drawn into Mr. Graham's case by a call from Mr. Burr.
"I know Dick from working with him ... on another case. When he says there are issues," Mr. Farrell said, people listen.
Mr. Farrell said he helped bring Mr. Glover, known for roles in the Lethal Weapon movies, into the fray.
Mr. Burr acknowledged knowing which levers to pull after 20 years of fighting death penalty cases.
"There's always a critical public education component," he said, and one way to attract attention is "to have people of visibility be involved and express concern."
The evidence against Mr. Graham in the May 13, 1981, killing of Mr. Lambert, 53, of Tucson, Ariz., was far from the strongest case ever presented to a jury in Harris County, which leads Texas in imposing death sentences.
Only one eyewitness positively identified Mr. Graham as the man who shot Mr. Lambert, a self-described con man, gambler and suspected drug trafficker. Others corroborated parts of her description, but the defense did not develop inconsistencies for the jury.
Another hole in the evidence was the fact that a ballistics test indicated that the .22-caliber pistol with which Mr. Graham was arrested a week after the crime was not the gun that killed Mr. Lambert. The defense never raised that point at trial.
No physical evidence linked Mr. Graham to the crime.
Mr. Graham's trial attorney, Ronald G. Mock, has steadfastly defended his work. He has repeatedly said eyewitness Bernadine Skillern was "strong as an acre of garlic" and there were strategic reasons for his not raising certain points.
But Mr. Zimmermann said Mr. Mock, a lawyer for three years at the time, mistakenly feared that disputing the eyewitness or raising the gun issue might open the door to evidence of Mr. Graham's violent crime spree at the time Mr. Lambert was killed.
"He didn't know the law," Mr. Zimmermann said.
But Rusty Hardin, a veteran prosecutor now in private practice, said Mr. Mock was right. "The other offenses could have come in," he said.
"There isn't anything I would have done differently," Mr. Mock testified in a 1988 hearing on one of Mr. Graham's habeas corpus petitions. The subject of four professional disciplinary actions since 1993, he referred questions to his lawyer, who did not respond to reporter inquiries.
Despite indications Mr. Graham's defense was incomplete, appellate lawyers argue new laws limiting post-conviction appeals prevent a full rehearing of the case.
If technicalities ever helped the guilty escape punishment, technicalities now are keeping Mr. Graham on death row, Mr. Zimmermann argues.
Harris County prosecutors disagree, and appeals courts repeatedly have found that "new" witnesses brought forward since the trial are not credible enough to overturn the conviction and death sentence.
Mr. Graham's story has changed over time. At first, he was with a girlfriend whose name he could not remember. After trial, relatives and friends claimed he was with them at the time Mr. Lambert was killed. They were later discredited. Other witnesses have been inconsistent, prosecutors say.
Appeals have complained that police improperly suggested Mr. Graham to Ms. Skillern, the eyewitness who identified him.
As part of their escalating campaign, Graham advocates organized a news conference in Houston on Monday attacking eyewitness testimony in general.
At an emotionally charged news conference sponsored by Northwestern University Law School, a national media contingent heard from 11 people wrongly convicted on eyewitness testimony and a rape victim who said she identified the wrong man.
But Ms. Skillern has never wavered in identifying Mr. Graham as the killer despite community and media pressure that at one point caused her to hire a lawyer and go to court to seek relief. Both Mr. Graham and Ms. Skillern are black.
"I do not want to change nor alter my testimony in any way," Ms. Skillern said in a 1993 affidavit. "Gary Graham ... is the person I saw."
She declined to be interviewed but her lawyer, Mr. Hardin, said he that she was considering making a new public statement.
As for the conflicting ballistics evidence, appeals courts have known about it for years but have rejected Mr. Graham's appeals anyway.
Prosecutors have argued that the ballistics information would not have exonerated Mr. Graham. That's because if Mr. Mock had brought it up, jurors would then have heard more damaging evidence in response.
Mr. Graham pleaded guilty to committing 10 other robberies about the time Mr. Lambert was killed. He received concurrent 20-year sentences, which he is about to complete.
Although he was never charged in the case, he was arrested naked in the bed of a cab driver who said he kidnapped, robbed and raped her.
At the time of his arrest, he was in possession of a .22. although it did not match the bullet that killed Mr. Lambert, it was not Mr. Graham's only gun. He had used at least two others and shot two other people in the other crimes, prosecutors say.
Jurors didn't hear any of that until they already had convicted Mr. Graham and had moved on to the punishment phase, deciding whether to give him the death penalty.
But that's the point, Mr. Zimmermann argues. There was too little evidence in the guilt-innocence phase, and the crimes used in punishment phase are irrelevant to deciding his guilt in the murder.
"Those aren't capital offenses, and they don't carry the death penalty," Mr. Zimmermann said. "Somebody who really doesn't care says, 'Kill him anyway just because he's a bad guy.' That's not our system of law." Supporting claims with irrelevant information has been a defense tactic, prosecutors have said.
Mr. Graham's claim of innocence is "based on a myriad of bolstered assumptions and suspect sources" that when examined closely "are not credible and without merit," Harris County Assistant District Attorney Roe Wilson wrote in a 1994 brief defending his conviction and death sentence.
Asked about the case Monday, she said she still thinks Mr. Graham is guilty. "He received a fair trial," she said.