Gary Graham Deserves a Real Day in Court, Not Execution Now

As the Texas jury retired to deliberate, its task could not have been easy. Bernadine Skillern was positive that Gary Graham was the man she saw shoot Bobby Lambert on that May night in 1981. But she had seen him only briefly, through her car window, from a distance of 30 to 40 feet. In the end, Skillern’s unbounded confidence about what she saw carried the day. Although no other evidence implicated Graham in the murder, the jury convicted him and sentenced him to die.

Based on that verdict, Graham is scheduled to die Thursday. It is unlikely that he would be if the jurors had known all of the relevant information.

Unbeknownst to the jury that convicted Graham, two other witnesses are emphatic that Graham is not the man who committed this crime. They saw the killer for a considerable period of time from a relatively short distance. They are sure that Graham’s face does not resemble the perpetrator’s and that Graham is significantly taller. Four other eyewitnesses from whom the jury never heard also observed that the shooter was shorter than the victim. Graham, by contrast, is at least three inches taller.

That’s not all the jury never heard. Skillern told the police that the killer had no facial hair and a short-cropped Afro. Yet, when police prepared a photo spread, nine of the 10 pictures showed to her did not match this description. The only one that did was Graham’s picture. Even after this extraordinarily suggestive identification procedure, Skillern still failed to make a conclusive identification, saying the picture looked like the murderer but the complexion of the man she saw was darker and his face was thinner. Then the police arranged for a live lineup, with Graham the only person in it whose picture Skillern had seen--a pattern common to misidentification cases.

The jurors were ignorant of these crucial facts because Graham’s court-appointed counsel, Ronald Mock, presented no witnesses for the defense and made no attempt to impeach Skillern.

It was a decade after Graham was sentenced to death that new lawyers finally brought all this information to light. But by then Graham already had exhausted a full round of appeals, and for that reason the courts invoked a series of technical rules that preclude a defendant from introducing evidence that emerges after his initial appeals.

These rules are based on the view, as the U.S. Supreme Court has put it, that “the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.”

It is now up to Texas Gov. George W. Bush and his advisors to take that obligation seriously, recognizing that it is unthinkable to execute Graham without affording him a new trial at which a competent lawyer can present all the evidence. Bush cannot possibly defer to the decisions of any court or any jury--for no court or jury has ever heard any of the critical new evidence.

There is no reason to question that Skillern is reporting her honest perceptions of what she saw. Yet there is also no reason to question the honesty of the many witnesses who contradict her.

Eyewitnesses often make mistaken identifications, and it matters not how many times they reiterate how sure they are about what they observed. Virtually every study of the subject has listed eyewitness error as the single-leading cause of wrongful convictions in the United States. Only a jury that hears from all of these witnesses and learns about all the circumstances of the observations can be entrusted to assess where the mistake is.

It is, of course, wonderful when DNA is available to settle these doubts, but in Graham’s case, as in most homicide cases, there is no DNA to be tested. It is obvious, though, that eyewitness errors are not restricted to cases in which DNA exposes the error. We have a duty to apply the lessons from DNA cases to other cases as well.

The Graham case is significant not because the governor of Texas is a candidate for the presidency or because of the newly invigorated national debate over the death penalty. It is significant because of its astonishing facts and because no court or jury has ever heard from the relevant witnesses.

Graham is scheduled to be the 648th person executed in this country in the past 23 years. Not one of these people has been executed on evidence this frail. If our country is destined to preserve capital punishment, we must ensure that no one ever will.