After a journey through the courts that has lasted nearly two decades, the Gary Graham case is coming down to one final day and, in the process, helping to define Texas Gov. George W. Bush and the much-criticized death penalty system over which he presides.
For attorneys for the convicted killer, that means sending last-ditch appeals to the U.S. Supreme Court and to the Texas Court of Criminal Appeals, the state’s highest criminal court.
Prosecutors, meanwhile, are working to rebut any claims that Graham is innocent or was denied a fair trial.
For the state’s Board of Pardons and Parole, which Thursday will make a recommendation to Bush about whether to commute Graham’s sentence to life in prison or send him to his death, that means considering a flood of new information about the case.
It includes statements by jurors who say they now are troubled by their vote to convict Graham of a 1981 murder and sentence him to death, as well as a sworn affidavit from a courtroom bailiff who said Graham told him, “Next time I’m not going to leave any witnesses.” Prosecutors never had released the bailiff’s statement before.
For Bush, the presumptive Republican nominee for president, the case has put the Texas death penalty system under the microscope again and has become an issue for his presidential campaign.
For the people involved in the 1981 trial or who were close to Bobby Grant Lambert, the Arizona man Graham was convicted of killing, it means waiting for Graham to be executed as scheduled, at 6 p.m. Thursday at the Walls Unit in Huntsville, Texas.
“I just want it to be over,” Dorothy Lambert, whose ex-husband died in the May 1981 shooting, said from her home in Kentucky. “I believe the man is guilty and justice should be done. It’s been going long enough. My family needs closure.”
Graham, convicted of gunning down Lambert in the parking lot of a Houston supermarket at the beginning of a weeklong crime spree, has been in this position before. In April 1993, with his execution hours away, then-Gov. Ann Richards granted a reprieve.
Richards’ decision was made in spite of the pardon board’s vote against a reprieve.
This time, the board’s decision–to be announced by noon Thursday–will be forwarded to Bush.
Graham’s case has become a lightning rod for debate on the death penalty, both because he was 17 when the murder occurred and because of his claim of innocence.
Moreover, it illustrates one of the biggest problems with the Texas death penalty system uncovered in a Tribune investigation that examined 131 executions under Bush.
Defense lawyers, the Tribune found, often provided meager efforts for their clients and many of them had spotty records. One-third of those defendants were represented at trial or during their first appeal by a lawyer who has been disbarred, suspended or received a public reprimand.
Graham’s trial lawyer, Ronald Mock, has been disciplined five times by the Texas State Bar, and appellate attorneys have often criticized his legal work.
Graham’s case also has been controversial because his conviction rested largely on the testimony of an eyewitness who caught only a glimpse of Graham’s face in the poorly lit supermarket lot where the murder occurred. The witness, Bernadine Skillern, said she had a longer look at his profile. She says she is certain Graham was the killer.
That hasn’t been enough to dissuade protesters such as Rev. Jesse Jackson, who prayed with Graham on Tuesday and is expected to witness his execution.
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Bush, whose office said he has been studying Graham’s case, was heckled by Graham supporters and opponents of capital punishment on Wednesday. He restated his support for the death penalty.
“As far as I’m concerned there has not been one innocent person executed since I’ve become governor,” Bush said in Los Angeles. “We don’t need a moratorium. I’m going to continue to uphold the laws of the land. I believe the system is fair and just.”
Bush cannot grant Graham another reprieve because an inmate is entitled to only one, according to the governor’s office in Austin. He can commute Graham’s sentence to life in prison but only if the board, whose 18 members he appointed, recommends it.
That is what they are weighing. Alvin Shaw, a former police officer and homicide chief who was named to the board three years ago, said he has been reviewing Graham’s clemency petition and other material provided by Graham’s lawyers, as well as a statement from Skillern.
“You read the information and weigh it the best you can. You ask yourself, `At this juncture, how do you personally feel?'” Shaw said. “Because at the end of the day, you’re going to have to live with yourself.”
Board chairman Gerald Garrett, a former Texas parole officer, suggested he was leaning against clemency, saying the testimony of Skillern, the eyewitness, is more powerful and more credible than the statements of defense witnesses, who say the man they saw shoot Lambert was not Graham.
The condemned man’s lawyers point to other inconsistencies. Among them is that the gun Graham had when caught did not match the handgun used to murder Lambert.
Garrett said the board is trying to sort through the case amid a maelstrom of conflicting accounts.
“You have people out there spinning this into the stratosphere,” Garrett said. “If you want to judge this case by what you see on TV and read in the paper, I would understand why someone would reach the conclusion that, without a doubt, he’s not guilty. … When you limit yourself to the irrefutable facts, you start getting a different picture.”
Richard Burr, Graham’s lead lawyer, was sending off two appeals Wednesday. One went to the Supreme Court, alleging that Graham is innocent and that he was denied effective counsel, an argument aimed directly at Mock’s trial performance.
The second appeal was to the state Court of Criminal Appeals. That asked the court to reconsider its previous denials of Graham’s appeals.
On the other side, Harris County prosecutors, who won Graham’s conviction and death sentence, continued to defend their case, saying the alleged new evidence is not credible. Supporters of Graham’s conviction also note that Lambert’s murder came at the beginning of a crime spree in which Graham robbed more than a half-dozen people, shot one and raped another–crimes Graham doesn’t dispute.
The prosecutors’ office on Tuesday took the unusual step of releasing a sworn affidavit from bailiff Lawrence Pollinger, who said Graham spoke to him as he returned Graham from the courtroom to the jail. The bailiff said Graham told him, “Next time I’m not going to leave any witnesses.”
Harris County Assistant District Atty. Roe Wilson, who prosecuted the Graham appeal for eight years, said the office was simply responding to defense efforts.
“They’re presenting all the stuff they want to present, so obviously we’re doing the same,” she said.
Meanwhile, the judge who presided over Graham’s trial said in an interview that he remains certain Graham is guilty. While he said that Mock, Graham’s lead lawyer, presented an “adequate” defense, he said the testimony of Skillern, the main witness, was solid.
Richard Trevathan, now in private practice, said that before Richards gave Graham a reprieve, he read a trial diary he kept during the Graham case. He said he made notes about Skillern as well as about Graham, and he remembered them clearly.
“I wrote in my notes that I thought Bernardine Skillern was the most credible witness I’d ever seen,” he said. “I wrote that Gary Graham was the most evil person whose presence I’d been in.”