Guilty as Charged

Wall Street Journal 
June 28, 2000

Dianne Clements and Dudley Sharp.

On the evening of May 13, 1981, Gary Graham murdered Bobby Grant Lambert in a Safeway parking lot in Houston during an armed robbery -- a crime for which he was executed last week. Death penalty critics have claimed that the single eyewitness, Bernadine Skillern, only saw Graham for a split second in a dark parking lot, that Graham received incompetent defense, and that relevant witnesses were denied hearings.

So convincing are these objections that presidential candidate Ralph Nader claimed at the Green Party convention this weekend that Gov. George W. Bush had allowed the execution of an "innocent" man. And coming, as it does, so soon after the release of a study purporting to show numerous mistakes in the application of capital punishment, the Graham execution appears to have created a new poster boy for the anti-death penalty movement.

Twenty-Eight Victims

Some poster boy. Prior to being fingered in the Lambert murder, Graham was arrested on May 20, 1981, for a crime spree that included 20 armed robberies, three kidnappings, one rape and three attempted murders. There are 28 known Victims of this crime spree, resulting in 19 eyewitnesses who positively identified Graham.

And what about that eyewitness in the Lambert case? Ms. Skillern's Statement to police and her testimony at trial, which has never changed, is that from a distance of 30-40 feet she saw Graham confront and accost Lambert in the parking lot.

The crime scene was illuminated by two nearby parking lot lights.

Graham and Lambert struggled. Ms. Skillern honked her horn, trying to stop the assault. Graham looked directly at her and then shot Lambert.

Graham walked briskly away, toward the front of the Safeway. Ms. Skillern followed him in her car, never taking her eyes off of him. Graham walked right in front of Ms. Skillern's car, not 10 feet away, and again turned and looked directly at her. Both the front of the store and Ms. Skillern's headlights illuminated Graham's face. Ms. Skillern observed Graham for 60-90 seconds with absolute concentration. She only stopped following Graham because her terrified children,

screaming in the back seat, convinced her to do so. Graham then disappeared into the night.

Ms. Skillern's identification of Graham was hardly the rushed judgment his supporters suggest. Graham's picture was not part of the first photo spread viewed by Ms. Skillern. It was in the second photo spread that she picked out Graham's picture, but said she would need to see a live line up. There she Identified Graham unequivocally.

There's reason to be cautious about relying on a single eyewitness's testimony -- as death penalty critics kept reminding us -- but often an eyewitness has been proved absolutely right, especially in Graham's case. Graham pled guilty to

seven crimes where a single eyewitness had identified him. In other words, Graham himself confirmed that those witnesses were accurate.

The judge in the Lambert murder case, Richard Trevathan, who has served in numerous murder trials as either prosecutor, judge or defense attorney, states that Ms. Skillern was "the most impressive and believable witness [he] had encountered in 20 years of courtroom experience."

While Ms. Skillern's veracity has been verified, the same cannot be said for Graham. Supporters touted Graham's assertions, made in his own death-row newspaper, that he had never harmed anyone. That stands at odds with what he said in the past:

According to trial testimony, Graham told robbery victim Rick Sanford that he had killed six people already and Sanford would be number seven if he did something stupid.

Graham reportedly told 57-year-old Lisa Blackburn, whom he raped for five hours: "I have already killed three people and I'm going to kill you. You don't Mean nothing to me, bitch."

To one of the shooting victims, David Spiers, Graham said, "After I kill you, I am going back [to your broken down car] to kill your fiance and her parents so they can go with you to honky hell. Before I kill your fiance I'm going to rape you."

After making victim Richard Carter, Jr. kneel down and putting a shotgun in his mouth, Graham said, "I'll kill you, too. Blowing away another white mother f-----

don't mean nothing to me." For four consecutive days after the trial, Mr. Carter received phone calls that he believes were from Graham. The caller said: "I'm going to kill you when I get out. I'll hunt you down and kill you before I die."

Court deputy Larry Pollinger claims that right after being sentenced to death, Graham said, "Next time, I'm not leaving any witnesses." Mr. Pollinger reported the incident the same day to an assistant district attorney, who, like Mr. Pollinger, confirmed this incident in a sworn affidavit.

In an attempt to save Graham's life, his supporters recently brought forth two crime scene witnesses, Sherian Etuk and Ronald Hubbard, who now claim that they saw another man kill Bobby Grant Lambert. Why wasn't their testimony presented during the trial or appeals process? Because they stated in 1981 that they did not see the murder, didn't see the murderer's face, and could not identify anyone. Not surprisingly, the courts found their changed testimony Not credible, and so did not grant them a hearing.

Graham's supporters also point to the fact that the .22-caliber pistol found on Graham wasn't the weapon used in the Lambert murder. Graham's trial attorneys knew that from the ballistics report. But they chose not to present that evidence at trial because, if they had done so, prosecutors could have introduced evidence about the other weapons Graham owned and the additional crimes he had committed during his busy criminal career.

Instead of introducing the .22-caliber pistol, defense attorneys pinned their hopes on discrediting the single eyewitness. All the appellate courts agreed that this was sound trial strategy -- not evidence of incompetence, as second-guessing critics now allege.

Oddly enough, this wasn't the first time that Graham's case has become an international cause celebre'. The last time was in 1993-94, when his supporters claimed that Graham's defense investigator had failed to uncover witnesses who could provide an alibi for Graham during the period when the Lambert murder was taking place.

Who were these alibi witnesses? William Chambers, Graham's cousin, and Mary Brown, the woman who married him in jail.

A 1988 hearing found that Graham never told his attorneys about these witnesses during the trial. Moreover, when these two so-called alibi witnesses testified at the 1988 hearing, they contradicted each other and Graham. They were so discredited that they were not even cited by Graham's supporters last week.

Desperate Claims

The new evidence gathered by Graham's supporters was hardly more convincing. Supporters claimed that Graham's attorneys were drunk and/or asleep during the trial. This claim was made only in the last few days before Graham's execution, and smacks of last-minute desperation.

If opponents of capital punishment are going to claim that innocent people are being executed today, they need to find better evidence than the case of Gary Graham.

 

Dianne Clements is president and Dudley Sharp is resource director of Justice for All, a criminal justice reform organization based in Houston.