Socialist Action /July 2000
'Death by Technicality' The Execution
of Shaka Sankofa
By JEFF BLACKBURN
 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.
Socialist Action /July 2000 |