A Roiling Debate on Texas Executions

Scrambling to prove his innocence, death row inmate Gary Graham has cycled through at least 20 appeals and 30 judges, but public review of the evidence in his case seems to never end. Only days before his scheduled Thursday execution, witnesses and jurors were still reiterating--sometimes recanting--their roles in the case in an unusual series of news conferences 19 years after the original crime.

Driven by lawyers, death penalty opponents or victims’ rights activists, the news conferences reflect the public relations battlefield Texas has become as the execution looms.

“We are, in fact, discussing this issue on two levels,” said criminal justice professor Rolando del Carmen of Sam Houston State University. “One is a purely legal level, and the other is a moral level.

“The legal side has already been resolved by courts,” Del Carmen added, noting that Graham’s legal appeals have been exhausted and his last chance to avoid death lies with a vote of the Texas Board of Pardons and Paroles, scheduled for Thursday.

But the news conferences, along with new rules for death row attorneys, discussion over changing state law and debate on death penalty alternatives in an important election for district attorney, show that public debate about the justness of the death penalty still rages in this state.

Graham and his supporters say he was wrongfully convicted for the murder of a Houston man in a Safeway parking lot in 1981. Graham’s attorney, they argue, was incompetent and his conviction hinged on the evidence of a single eyewitness. Several other witnesses who cast that account in doubt have since been identified, and Graham’s lawyers have called for a 120-day stay of execution to review their testimony.

However, George W. Bush, who as governor can grant 30-day stays of execution but not total reprieves, cannot act in this case because Bush’s predecessor had already granted Graham a stay, Bush spokesmen have said.

The national attention on Graham’s case springs from a confluence of recent events.

The controversy takes place in the thick of a presidential campaign in which Bush, as the presumptive GOP nominee, has been called on to defend his execution record, rather than tout it, as he is wont to do within the state. He raised the heat himself some weeks ago, voicing certainty that no death row errors have occurred on his watch, even as legal research and improved DNA testing are dismantling death row convictions nationwide.

A Protest by Those Wrongly Convicted

Meanwhile, in Bush’s home state, which by far executes the most people of any state in the country, traces of the debate about the system are visible in public relations and policy discussions.

Last week, in an extraordinary gathering here, nearly a dozen former inmates wrongly imprisoned by eyewitness testimony gathered to protest Graham’s execution. The group was sponsored by the Center on Wrongful Convictions at Northwestern University, whose research helped prompt a moratorium on executions in Illinois.

Later that week, Bernardine Skillern, the sole witness in Graham’s conviction, conducted her own news conference, breaking years of silence. Accompanied by her attorney, Skillern said she had no doubt Graham is the person who killed Bobby Lambert as she watched from her car in a Safeway parking lot.

Though Graham pleaded guilty to a binge of 10 aggravated robberies that week, he denies he was the shooter Skillern saw in the parking lot.

Three Jurors Have Second Thoughts

More public relations volleys landed this week. On Monday, assembled by a victims’ rights group, Justice for All, four victims of crimes Graham has admitted to gathered to tell the public Graham deserves death. “One thing he kept saying to me was, ‘I’ve killed three people and I’m going to kill you,” said one woman who was victimized by Graham during his crime spree.

Then, on Monday night, two jurors who helped condemn Graham to death revealed on ABC News’ “Nightline” their uncertainty about his guilt.

The next day, Graham’s attorney said the two jurors and a third who lives out of state had sent affidavits to the Pardons and Parole board stating that they would not have voted to sentence Graham to death if they had all the evidence that’s available now. The jurors, who requested a new trial for Graham, were swayed by new interviews with witnesses and forensic evidence, said Jack Zimmerman, Graham’s attorney.

“I always had a bad feeling about it. My gut feeling was he wasn’t guilty,” juror Bobby Pryor also told the Houston Chronicle. The two jurors said they might have changed their vote for death had they known of the other evidence that cast Graham’s guilt in question.

Is there a lasting effect from these retrials by news conference?

Sam Houston’s Del Carmen said it probably doesn’t affect the legal process but simply reflects the intensity of publicity and media attention on Graham’s case.

“The bigger the case, the more expansive the whole thing becomes,” he said. But, he added, the case of Karla Faye Tucker--a confessed pickax murderer turned model inmate and evangelist who sought clemency--showed that public attention has little effect on Texas’ death penalty policy. Despite even greater international attention than the Graham case is receiving, Faye was executed.

Rick Brass, secretary of the Harris County Bar Assn., thinks the publicity has affected policy in several ways.

Two years ago, he noted, the District Board of Judges for Harris County instated a certification requirement for lawyers representing capital murder defendants. Last month, those lawyers were required to take a mandatory recertification course as well.

Though the requirement preceded much of the controversy surrounding Graham, the judges were likely influenced by the case of Calvin Burdine, freed from death row in March after it was determined his attorney had slept through key stretches of his trial.

“Recent publicity in regard to the quality of representation of capital defendants is what prompted the necessity,” Brass said.

“Texas leads the country in the number of executions, and Harris County leads the state in the number of death sentences handed down,” he added. “Harris County is obviously sensitive to the need to have quality representation.”

Recent news may also help the chances of a previously rejected bill when the Texas Legislature convenes this winter.

State Sen. Rodney Ellis of Houston said he plans to reintroduce a proposal to permit life without parole as an alternative to death sentences in Texas. Currently, all Texas inmates have the opportunity for parole after 40 years of incarceration, a policy that some say encourages juries to back the death penalty for violent criminals.

“The criminal justice system is now the talk of the Texas capital. And the need to do something to make the system more fair is not just garnering attention from the media but policymakers as well,” said Jeremy Warren, an Ellis aide.

Jim Dougherty, the Democratic candidate for Harris County district attorney, has also said he plans to push in his campaign for allowing life without parole.

“I think there is some public support for Texas having that option,” Brass said. “I guess you could say part of that would be in response to the publicity surrounding questionable death penalty verdicts here. I just think our society is ready to have that option.”

The spotlight on the Texas justice system also has galvanized death penalty proponents. Justice for All, the group that organized past victims of Graham, did so directly in response to what it perceived as unfairly sympathetic coverage of Graham. Even before the Graham case, the victims’ rights group established a Web site: https://www.prodeathpenalty.com.

“We reacted because of the information that is distributed by those who oppose the death penalty,” said the group’s president, Dianne Clements. “It was a process that was due to frustration.”

Campaigning on the West Coast, Bush has confronted repeated questions about Texas’ death row justice from reporters and protesters. Monday, he vowed to “stand my ground in the face of a pretty significant movement to try to undermine the credibility of the death penalty in the state of Texas.”

“Stop the execution of Gary Graham,” yelled one woman Tuesday, joining protesters at the Palo Alto hotel where Bush attended a fund-raiser. Later, in response to reporters, Bush said he believes the death penalty saves lives.

Asked how he thought his position was viewed by the American public, he said: “I hope they see someone upholding the law.”

Meanwhile, the Rev. Jesse Jackson prepared to join the host of public figures from across the country and overseas protesting Graham’s execution. Already, Bianca Jagger, a director of Amnesty International USA, had sent a letter to the governor and to the chairman of the Pardons and Paroles Board urging clemency for Graham. Jackson signed the letter, along with former New York Gov. Mario M. Cuomo and members of the Congressional Black Caucus.

Jackson, en route to Texas on Tuesday, issued a religiously tinged challenge to the absent governor. Comparing Bush to Pontius Pilate, Jackson said: “If Gov. Bush is convinced that Gary Graham is guilty, he should join me in watching Gary Graham die. Let him pull the switch.”

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Times staff writer Megan Garvey, with the Bush campaign, contributed to this story.