By JEFF BLACKBURN
The state of Texas is working overtime to kill an innocent man. That man is Gary Graham, also known as Shaka Sankofa.*
Graham is scheduled to die by lethal injection on June 22. His case has been publicized throughout the world. He has gained the support of thousands of people, including celebrities, journalists, and activists. There is little doubt that he is innocent, or that he deserves a new trial.
Still, Texas and its governor, George W. Bush, continue to aggressively push his execution. There is a strong chance they will succeed this time.
Gary Graham’s case brings into sharp focus the institutionalized injustice of the death penalty, especially in Texas. At the same time, the movement that has grown around it shows a new and emerging resistance against that injustice.
Gary Graham was 17 years old in 1981, the year he was accused of killing a man named Bobby Lambert in a grocery store parking lot in Houston.
Back then, Graham was unremarkable-just another poor African American kid accused of a violent crime in Houston, the “murder capital of the world.” He had been in trouble before, and he seemed like a good suspect for the Lambert murder. The case against him was based on the eyewitness account of a single person.
From the moment of his arrest, however, Graham declared that he was innocent. Since he had no money, he could not hire his own lawyer. Instead, he was forced to take a lawyer appointed by the state.
In Texas, there is no public defender system. Lawyers that are appointed to represent poor people accused of crime are chosen at the whim of the trial judge, usually from a list of political supporters. They tend to be grossly underpaid, frequently incompetent, and generally unmotivated.
Gary Graham’s lawyer, Ron Mock, was no exception. By his own count, “16 or 17” of his clients have been sent to death row, including Gary Graham.
Mock has been officially cited many times for professional incompetence, earning a near legendary place for himself as one of the worst lawyers in Texas. His performance in one death penalty case was so inept that a judge was forced to conclude that a “breakdown of the adversarial process” had occurred. The same “breakdown” happened in Gary Graham’s case.
The trial and appeal
Mock made no investigation into the facts of the accusation against his client. Witnesses were not interviewed, ballistics tests were not performed, the testimony against Graham was not questioned. Put simply, he did next to nothing for his client.
This, too, was not very remarkable. As an American Bar Association special report on the Texas death penalty recently concluded, “At every stage of the death penalty process, Texas is far below any measure of adequacy in terms of the legal representation it provides.”
As a result of Mock’s incompetence, evidence that could have prevented Graham from from being falsely convicted was never presented to the jury. He was convicted on the basis of the only evidence against him, the testimony of one person who picked him out of a police line up. The trial was over before it ever began. The jury convicted him and sentenced him to death.
Of course, that was not the end of the legal process. In Texas, a person who has been wrongfully convicted has a right to challenge his conviction in two ways.
First, he may present new evidence showing that he has been falsely tried. This has to be done within 30 days of being convicted. Second, he may appeal his case on the ground that he received ineffective assistance of counsel at the trial level.
These challenges have to be made by a lawyer. If a person has no money, that lawyer will be appointed by the court and drawn from the same pool of attorneys used for trials. If a convicted person is exceptionally lucky, he might get an appeal attorney who actually investigates the facts and fights the case. If he is not so lucky, he will wind up with the same kind of ineffective lawyer he received at trial.
Graham was not so lucky. He was given a lawyer who compounded the errors made at his trial. Once again, the facts of his case were not investigated. Once again, an inadequate job was done. As in most Texas death penalty cases, the appeal was a foregone conclusion. His conviction was affirmed and he was sentenced to die by lethal injection.
No one had bothered to listen to Graham’s claims of innocence. He was just another death penalty defendant in an assembly-line system.
In 1993, however, a group of new lawyers took over his case. This group, headed by Richard Burr-part of a small and dwindling band of committed anti-death penalty attorneys-finally began to listen to what Gary Graham had been saying ever since he had been arrested. For the first time, they undertook a real investigation of their client’s case. That was when Gary Graham’s case turned remarkable.
They discovered, for the first time, powerful evidence of Graham’s innocence:
- A police weapons expert had concluded that the gun Graham allegedly used to kill Bobby Lambert could not possibly have fired the fatal bullet.
- The same expert concluded that it was possible another gun, owned by another suspect who was never arrested, could have.
- Seven of the eight witnesses who saw the murder did not identify Gary Graham as the killer and gave descriptions of a different person to the police.
- The one witness who did identify him only did so after the police suggested it to her through a variety of techniques, including the use of altered photographs.
None of these facts were ever presented at trial or in the first round of appeals. In an exclusive interview with Socialist Action, Burr said: “This evidence-discovered years after Gary’s trial-demands to be heard. It proves that he is innocent, and it proves that he deserves a new trial. Executing him in the light of these facts would be an abomination.”
Yet that is precisely what the court system, and George W. Bush, intend to do.
When the new evidence was presented in 1993, the Texas state courts refused to hear it. The technicality they relied upon was the “30 day” rule mentioned earlier-the evidence, according to the courts, should have been presented within 30 days after the trial period.
Despite the fact that it proves Graham’s innocence, and despite the fact that he was never properly represented, this “rule of law” was held to be absolute.
According to Burr, this is a classic example of how the factory murder system works in Texas: “What we have now in Texas is, essentially, death by technicality. People accused of capital crimes are given inadequate lawyers. Inadequate lawyers don’t do their job and miss technical deadlines. The technical deadline is then transformed into a legal justification to execute someone even if they did not commit the crime.”
The federal courts have taken a similar approach, relying on the Clinton-sponsored “Antiterrorism and Effective Death Penalty Act of 1996.”
Under that law, it is legally impossible for an accused to get a second chance to prove their innocence if they “could” have done so earlier. It does not matter whether the lawyer that “could” have done so actually did it-only whether he or she “could” have.
Since Graham’s lawyer “could” have done his job, it is now too late, according to the federal courts, to even hear the facts.
To date, the truth of Graham’s innocence has never been ruled on by any state or federal court. All of the courts have turned their backs to the facts of the case. None of them have even granted a hearing, much less ordered a new trial.
Gary Graham’s last chance to persuade the courts to intervene and prevent this travesty ended in the U.S. Supreme Court on May 1, 2000. That was when the Court denied certiorari, ending any further court action in the case.
Against this grim legal backdrop a movement to expose the Texas factory murder system and prevent the execution of Gary Graham has begun to take shape and gain momentum.
Several years ago, a defense committee was formed. As the real and remarkable nature of Gary Graham’s case unfolded, celebrities like Bianca Jagger and Denzel Washington started voicing their support for a new trial. Prominent figures throughout Texas and the world, most recently Hurricane Carter, have pledged themselves to stop Graham’s execution.
Working people have also begun to get involved. Injeri Shakur, a Houston activist with the Gary Graham Defense Committee, reports that the case has brought forward a whole new group of people into the fight against injustice.
She says, “What we’re seeing now, in Houston, is increasing numbers of African Americans realizing that Gary’s case could easily be their own-that this is a case about those without the capital getting the punishment.”
The result, she says, is that meetings, rallies, and other events are drawing crowds of several hundred people at a time. She expects that number will grow substantially as the June 22 execution date nears: ” Our phones are ringing off the hook every day now,” she reports.
According to Shakur, the defense committee is planning actions in Texas and nationwide. “We ask all who hate injustice to get involved with us,” she says.
Meanwhile, the only legal chance Gary Graham now has is with Gov. Bush and the Texas Board of Pardons and Paroles, who together have the power to grant clemency.
As Bush continues to tour the country piously intoning his commitment to Christian values and the Board continues to refuse to hear cases, that chance is not good. The track record of the two is not exactly inspiring: since 1995 they have executed 124 people and granted clemency only once.
Graham’s lawyer and his growing group of supporters are optimistic nonetheless: “I only hope that the people of Texas and throughout the country continue their efforts to demand a new trial. That’s the only real chance Gary has,” said Burr.
For more information about what can be done to save Gary Graham, and for planned events throughout the country, contact the Gary Graham Defense Committee at 3903 Almeda, Houston, TX 77004. Phone: (713) 521-0629. Fax: (713) 521-1185.