Death by Technicality’ The Execution of Shaka Sankofa


On June 22, Texas governor and Republican presidential candidate George W. Bush made good on his promise to execute Shaka Sankofa, better known by his former name, Gary Graham.

“They know I’m innocent, but they won’t acknowledge it,” said Graham, who had been beaten and handcuffed to a gurney.

His last words were, “They are killing me tonight. They’re murdering me tonight.” He then let out a groan and collapsed into silence at 8:49 p.m., the victim of a state-prepared poison injected into his veins. He was George W. Bush’s 135th death penalty “score.”

In the months leading up to June 22, Gary Graham’s case had received the attention of working people, journalists, and celebrities all over the world. Thousands of activists had organized and spoken out against his execution. Hundreds of them traveled to death row in Huntsville, a small and isolated town in central Texas, to protest it.

Bianca Jagger and the Rev. Jesse Jackson witnessed the event. Reporters from major newspapers and television networks throughout the world covered it.

George W. Bush even felt compelled to make a special statement justifying his refusal to stop the execution. He said that Graham had received “full and fair access to the courts” and piously asked God to bless his soul.

What made this case so extraordinary? What caused it to become a focal point for the movement to abolish the death penalty both nationally and around the world? What did it reveal about the death penalty system in Texas and the United States?

The answer to these questions-and the thing that made Gary Graham’s case so extraordinary was that it was not extraordinary at all. It was just another capital case in a long line of capital cases, another casualty of an assembly-line system. Graham’s case was no different than that of hundreds of others that have been processed through the Texas death-row system and systems like it in other states.

To understand how truly “ordinary” Graham’s case was, it is necessary to go back in time to 1981.

It was in that year that a 17-year-old Gary Graham, a Black teenager who had grown up hard on the streets of Houston, went on a crime spree. Over the course of a few days he stuck up nearly a dozen people for small amounts of money. He was arrested a few days after his last robbery. The cases against him were solid. He confessed to them within hours of being picked up.

Unbeknownst to him, however, he had now become more than just a kid who had committed some sheet crimes. He had become a police target, and a convenient one at that.

The police needed a target like him. A few weeks before, a man named Bobby Lambert had been robbed and killed in a grocery store parking lot in another part of Houston. The newspapers and television stations had made an issue out of the murder, citing it as an example of crime run amok in the city.

There were few clues with which to solve this crime. Although eight eyewitnesses had seen it happen, none of them remembered exactly what the killer looked like. The consensus was that he was a Black man with a thin face, no facial hair, and a short haircut. This description was made into a drawing, which was shown around the neighborhood. So far, however, there were no leads in the case.

Enter Gary Graham. Already in jail, without money to hire a lawyer, guilty of multiple crimes, he made a perfect suspect in the Lambert killing. The police went all out to make a case against him.

Photographs were carefully prepared. All eight witnesses were carefully and lengthily reinterviewed. Each was shown what is called a “photo array”-a row of pictures of different people, one of whom is the suspect.

Ballistic tests were performed on the gun Graham had been caught with. The characteristics of its barrel were carefully compared to the markings found on the bullet that had killed Lambert.

While this was going on, the police started a campaign to get Graham to confess. They told him that if he would “come clean” about killing Lambert he could probably beat the death penalty-a message repeated to him over and over.

The net result of these efforts was next to nothing. Seven of the eight eyewitnesses stuck by the original description they had given, the one that had been made into a drawing. The drawing looked nothing like Gary Graham.

Only one person-Bernadine Skillern, who had seen the real killer for only two or three seconds, at night, from a distance of about 30 feet away-could now identify Graham. Her “identification” came only after she had been worked on for several days with a “special” photo of Graham. This photo, unlike all of the others she was shown, had a large black mark on it-the equivalent of an arrow pointing directly to him.

The ballistics tests turned out to be completely in Graham’s favor. There was no match between the barrel of Graham’s gun and the bullet that had killed Lambert. These tests were evidence of his innocence, not of his guilt.

Meanwhile, Graham refused to confess. He told police that if he had killed Lambert he would have admitted it, just as he did with the robberies. As he had done from the first days of the investigation, he steadfastly maintained his innocence.

This was the “case,” then, against Gary Graham-the word of one mistaken witness, tainted by police misconduct. This was what was taken to a grand jury and indicted as a capital murder case. This was the “case” that ultimately sent Gary Graham to his death on June 22.

An ordinary court-appointed lawyer

It took more than the shoddy evidence against Graham to send him to death row. It took the “ordinary” workings of the Texas death penalty system, and especially the ordinary lawyers that infest it, to do that.

After an initial flurry of police publicity, Gary Graham became just another nobody being processed through the system. He had no money, no real family, no friends. No lawyer volunteered to take his case.

In Texas, there is no system of any kind to ensure that a person in such a situation receives any genuine legal help. A poor person is forced to take whatever lawyer the trial judge decides to give him. There are no legal standards or rules governing the process; everything is left up to the individual judge.

Judges in Texas are elected, not appointed. They have to raise money and curry political favor to keep their jobs. The money usually comes from lawyers.

Lawyers who pay large amounts of money to a trial judge as “campaign contributions” can usually expect to get something in return. For lawyers handling criminal cases, that “something” is often a series of court-appointed cases-which can generate fees totaling hundreds of thousands of dollars per year.

The political favor usually comes from looking “tough on crime” in the media. A judge who fails to look sufficiently “anti-crime”-a judge, for example, who presides over a capital murder case that results in a “not guilty” verdict-is probably a judge with a limited political life expectancy.

It makes no sense for a judge to appoint an effective lawyer to represent the accused in a case such as Gary Graham’s that could lead to bad headlines and negative publicity. It makes a lot more sense to appoint a political crony whose performance as a lawyer is guaranteed to make the court look good. It makes a lot more sense, in other words, to appoint an incompetent.

This happens routinely in Texas. Even the Texas Bar Association said, in a report issued in 1993, that the practice of deliberately appointing incompetent lawyers in death penalty cases had become so widespread that “Texas has already reached the crisis stage in capital representation.”

Amnesty International, in a 1998 white paper called “The Death Penalty in Texas: Lethal Injustice,” had this to say about the court appointment system: “[We] have documented numerous capital cases in Texas where defense counsel totally abdicated their responsibility to their clients, in effect condemning them to death. … Authorities in the state have taken no steps to remedy the poor quality of counsel in these cases.”

A quick look at some numbers reveals deep truths about the “ordinary” workings of the capital appointment system.

Of the 135 people executed during George W. Bush’s tenure as governor, for example, 44 of them had court-appointed lawyers who have been publicly sanctioned for professional misconduct. The roster includes convicted felons, disbarred and suspended lawyers, alcoholics, and lawyers who were too old or sick to try a case.

Two of the executed prisoners had lawyers who slept through most of the trial. Three had lawyers who served jail time after being held in contempt for mishandling criminal cases. In 40 cases, the defense lawyers were so unprepared that they either presented no evidence or only a single witness during the trial.

The lawyer Gary Graham got, Ron Mock, was and is a prominent member of this dubious fraternity of sell-out lawyers, or “V-6s” (short for “walking violations of the Sixth Amendment”), as they are known to other criminal lawyers.

In 1981, Mock was making over $100,000 per year on court-appointed cases. He drove a Bentley to and from court every day. He owned a downtown bar that was popular with the courthouse crowd. Judges loved him-he moved their cases and made them look good.

He had also been disciplined by the state bar of Texas five times for professional misconduct. His performance in one capital case was so awful that a judge ruled “a total breakdown of the adversarial process” had occurred. His work in another case was so inept that he was held in contempt of court and jailed for failing to file court papers on time. He has represented, by his own count, “17 or 18” people who have been sent to death row, many of whom have already been executed.

Mock was, in other words, just an ordinary court-appointed Texas capital murder lawyer.

An ordinary trial

The work he did for Gary Graham was “ordinary” too-it consisted of practically nothing.

He never talked to the seven eyewitnesses who cleared Graham. He never examined the ballistics reports. He made no notes of what evidence the state had against his client, referring to “wait and see” what happened in the trial. He also refused to talk to four witnesses who said that Graham was with them the night Lambert was killed. Mock’s investigator later admitted under oath that he had been instructed to do no work on the Graham case since “Ron figured he was guilty as hell anyway.”

The “guilt-innocence” phase of Graham’s trial lasted only two days. The state’s only eyewitness was Bernadine Skillern. The fact that she was 30 feet away from the crime, in the dark, was never brought up. The fleeting amount of time she had to see the killer-two or three seconds-was also not discussed.

The suggestive techniques that the police had used to get her to identify Graham never made it to the jury either. Mock’s cross-examination of her was brief and pointless.

Like his fellow court-appointed lawyers, Mock presented no evidence for the defense. The critical evidence of Gary Graham’s innocence-the seven eyewitnesses who failed to identify him, the ballistics tests that exonerated him, the alibi witnesses who proved he was someplace else when the crime was committed-were never heard.

The trial was over before it began. In a few hours-the “ordinary” time in Texas for such cases-Graham was convicted and sentenced to die. He was now one of the faceless hundreds headed to death row.

An ordinary appeal

His processing through the system did not end there, however. In Texas, everyone convicted of a capital crime is entitled to an appeal. That appeal is taken to a court called the Texas Court of Criminal Appeals.

If a person who wants to appeal has no money, he has to take his chances with another appointed lawyer. There are no rules, criteria, or procedures in place to insure that the appointed appeal lawyer will be any more competent than the appointed trial lawyer. The decision is left up to the same judge who made it at the trial level, and chances are that the appeal lawyer will do no better than his predecessor.

This is what happened to Gary Graham. The lawyer he got, in keeping with the ordinary course of court-appointed business, did no investigation into the facts of his case. He never asked for Graham’s side of the story, nor did he bother to question his colleague Mock’s competence. The result was one more hollow effort and a meaningless appeal. Graham’s conviction and sentence were swiftly upheld by the Court of Criminal Appeals.

Graham had now been fully processed through the Texas factory murder system. The only thing left for him to do was hope that he could stay alive long enough to convince a real lawyer to look into his case.

An extraordinary turn

It took 12 years for that happen. In 1993, after being asked to do so by a growing number of Graham supporters, a lawyer named Richard Burr got involved in his defense. Burr is one of the leading anti-death-penalty lawyers in the United States. He is part of a tiny group of lawyers willing to handle such cases regularly, usually for no fee and always in the face of abuse from courts, prosecutors, and the media.

Burr found out what had really happened to Gary Graham. For the first time, the prosecutor’s files were actually analyzed. Witnesses were talked to. Firearms were examined. Graham’s alibi was checked out. A powerful case for Graham’s innocence was put together. The work that any reasonably effective trial lawyer should have done and would have done finally got done-12 years later.

It turned out to be 12 years too late. That was because of the state and federal appeal system in Texas, a system that has been described by legal commentators as a “stacked deck” for the accused. How the deck was stacked, and how it was used to kill Gary Graham, is worth some serious examination.

The first step a wrongfully convicted person has to take to get a new trial, assuming that he has been able to find a lawyer to help him, is to file what is called a “writ of habeas corpus.”

The purpose of this writ, which has been regarded historically as one of the greatest legal mechanisms to protect the rights of individuals and has often been termed by lawyers and judges as the “Great Writ,” is to test the legal validity of a conviction. The state courts of Texas and the federal courts have had procedures in place for a hundred years to ensure that prisoners could file such writs.

The idea behind the writ of habeas corpus is simple: A prisoner develops evidence that his conviction is unjust. He files an application for a writ, which is really a demand that a court hear the evidence. The court grants the writ, hears the evidence, and decides whether he is entitled to a new trial according to established legal principles.

The actual practice of the courts in handling such writs, however, has become anything but simple. As the death penalty became more and more politically popular, courts rigged more and more obstacles to the use of this simple procedure.

The use of these legal obstacles has allowed the courts to turn a blind eye to the plight of the wrongfully convicted. It has allowed them to make the business of killing citizens more efficient than ever.

Nowhere is this more evident than in Texas. Nowhere is the horrible effect of these changes more obvious than it was in Graham’s case. When Burr filed Graham’s application for a writ of habeas corpus in state court, he was immediately confronted with a legal obstacle-a ruling of the Court of Criminal Appeals in an earlier case that made it “discretionary” for a court to even grant a hearing.

Relying on this decision, the trial court-the same one he had been before 12 years earlier-denied Graham the right to even present evidence that he was innocent. The circular reasoning used by the judge was that Graham should have made his complaints known within 30 days after his trial-never mind that due to the sorry work done by his lawyer he had no idea what those “complaints” were back then.

The court affirmed Graham’s death sentence without hearing from a single witness or reading a single report. So much for the “Great Writ” of habeas corpus in the state trial court!

Graham then turned to the Texas Court of Criminal Appeals. His reception before that elected body of Republican judges, which has become a national laughingstock due to the poor legal qualifications of several of its members and its determination to affirm convictions no matter what, was even worse.

In a widely publicized case, the court recently even refused to release a prisoner who had been proven innocent through DNA testing. Its reasoning? Letting an innocent man go would “violate the state’s right to certainty in criminal cases.” Needless to say, it immediately affirmed the decision to deny Graham a hearing on the facts.

Federal “processing” takes over

The next step in the effort to save Graham’s life in the courts involved the use of the federal system. Federal courts also guarantee prisoners the right to the use of habeas corpus. They have the power to stop an execution and grant a new trial. Under the Clinton-sponsored “Anti-Terrorism and Effective Death Penalty Act” (AEDPA) of 1996, however, the use of that power has become so restricted that the writ of habeas corpus in the federal system has become more of a joke than it is even in Texas state courts.

As one Houston anti-death-penalty lawyer put it: “This law completely perverted the meaning of the legal system. It turned the federal courts into executioners rather than examiners, perpetrators instead of protectors.”

By the time Graham’s case got to the federal courts, the AEDPA was already in effect. Under this law, it was not enough for Graham to show that he was innocent. Now he had to show the evidence of his innocence could not have been discovered at the time of his trial.

Since the evidence that Graham was innocent “existed” in 1981-even though it was never discovered or used by Mock-the federal judge reasoned that Graham could not even present it for consideration now. Once again, no hearing was held. Once again, the court slammed the doors shut on Graham’s case.

“This is a great example of what the system has come to,” said Burr in an earlier interview with Socialist Action, “Death by technicality.”

The last real chance Graham had in the court system, state or federal, came to an end on May l, 2000-the day the U.S. Supreme Court denied review.

After that, it was up to George W. Bush and the Texas Board of Pardons and Paroles. Bush passed the buck to the board, claiming it was entirely up to them. The board, consistent with its long history of sending to death everyone who comes before it in a capital case no matter what the facts, refused to even hear the evidence, much less spare Graham’s life.

The Harris County District Attorney’s office, meanwhile, provided cover for these actions by orchestrating a media blitz designed to show that Graham was an evil and remorseless killer, stooping so low that they even got a court bailiff to suddenly “remember” that in 1981 Graham had told him he regretted not killing more people.

After a last-minute spate of legal maneuvers by Burr, the clock finally ran out. Graham was taken to the death house. Despite physical resistance, he was killed in the ordinary way, the way that had been prepared for him by a legal system that treated his case and hundreds of others as just another piece of ordinary business.

Extraordinary awakening

Gary Graham may not have died completely in vain. The stark facts of his innocence, his admirable resistance to injustice, and the level and intensity of public outcry over his fate combined to wake up many people to the reality of the death penalty in this country.

Support for the system, even in Texas, is now at an all-time low. New layers of people, especially “liberal” supporters of the system, are demanding to know what went “wrong” in the Gary Graham case. Perhaps over time they will see that as far as the system was concerned, nothing at all went wrong; to the prosecutors, politicians, and judges that make up that system this was just another “ordinary” case.

To the rest of us, however, Gary Graham’s tragic end can never be viewed as “ordinary.” It can only serve as an extraordinary example of what the criminal justice system has become in this country.

Jeff Blackburn is a noted anti-death-penalty attorney, practicing in Amarillo, Texas.

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