The Trial of Gary Graham: 1981

Defendant: Gary Lee Graham
Crime Charged: Murder
Chief Defense Lawyers: Ronald G. Mock, Douglas M. O'Brien, and Chester Lash Thornton; on appeals: Richard Burr, Douglas M. O'Brien, Robert C. Owen, Michael E. Tygar, Mandy Welch, Jack B. Zimmermann
Chief Prosecutors: John H. Holmes, Jr.; on appeals: Dan Morales
Judge: James Richard Travathan
Place: Houston, Texas
Date of Trial: October 30, 1981
Verdict: Guilty
Sentence: Execution

SIGNIFICANCE: Experts on capital criminal trials saw several compelling questions raised by the Gary Graham case, including: Should a jury consider a murderer's youth and background as a mitigating factor that justifies a life sentence rather than execution? Should a governor be empowered to grant more than one stay of execution pending further review? Should a "30-day rule" prohibiting the introduction of new evidence more than one month after a conviction be revoked? Why does Texas perform nearly twice as many executions as other states?

On May 20, 1981, police of Houston, Texas, were called to the home of 57year-old Lisa Blackburn. They found her holding a. 22-caliber handgun she had taken from 17-year-old Gary Graham, who was asleep in her bedroom. Over five hours, she told them, he had collected her valuables, which were piled by her front door, raped her at gunpoint, and threatened to kill her. He had fallen asleep, she said, "So I took his gun, took his clothes, and called the police."

Arrested, Graham admitted that he had recently committed 10 aggravated robberies, pistol-whipping two victims, shooting one in the neck, and striking one with an automobile after stealing it from him. Graham's background, the police found, included a number of petty offenses. The child of an alcoholic father and a mentally ill mother, he was a semi-illiterate seventh-grade dropout who had fathered children when he was 15 and 17.

Witness Identifies Murderer

The police were then investigating the murder, two weeks earlier, of Bobby Grant Lambert, who had been killed by a. 22-caliber bullet in the parking lot of a Safeway supermarket during a robbery attempt at 9:30 p.m. Lambert was a known drug trafficker from Tucson, Arizona, who had a criminal record; $6,000 in cash had been found in his pocket.

One witness of that murder, Bernadine Skillern, who had glimpsed the killer from 40 feet away in the darkened parking lot and who had described him to a police sketch artist, now was shown Gary Graham's picture in a photo lineup. She could not positively identify him. Next day, viewing a live lineup, she identified Graham.

Charged with killing Lambert, Graham pled guilty to the 10 counts of robbery, but denied the murder.

Attorney Ronald G. Mock was appointed by the court to defend Graham. Mock was well known in Harris County, Texas, for his availability to represent indigent clients. While the legal community knew that he had been reprimanded or suspended by the bar a number of times, it also knew that he frequently accepted cases turned down by other attorneys. His record—75 percent of his capital case clients went to death row—was the same as the sentencing record of juries in Harris County.

The One-Day Trial

As the trial opened before Judge James R. Travathan on October 30, 1981, prosecutor Johnny Holmes described the arrest of Graham and showed the jury his gun. He did not, however, tell the jury that ballistics tests by Houston police had proved that that gun had not fired the bullets that killed Lambert. Mock, in his opening, did not call attention to that fact or note that neither the gun nor any other physical evidence that could link Graham to the crime had been formally presented. Observers later theorized that Mock was avoiding the fact that Graham had nine other weapons.

The prosecution called several witnesses. Wilma Amos testified that lighting in the parking lot "was good." Daniel Grady, Ron Hubbard, Leodis Wilkerson, and Amos described the shooter they saw as medium height—roughly 5′5″ to 5′9″—but could not identify him as Graham.

Lisa Blackburn, the rape victim who brought about Graham's arrest, testified that he told her, "I have already killed three people and I'm going to kill you," and "I don't have nothing to lose. If I get caught, I burn, and I'm not getting caught." The defense failed to argue that her testimony should be disallowed because no charge of rape had been brought against the defendant.

Another prosecution witness, Richard Carter, Jr., described how Graham, in an earlier robbery, forced him to kneel, put a shotgun barrel in his mouth, and threatened, "I'll kill you. Blowing away another white m----- f----- don't mean nothing to me."

The prosecution introduced Bernadine Skillern. She described how she was sitting in her parked car in the supermarket parking lot at night when she saw a man wearing a white jacket and dark trousers shoot Lambert. She saw the killer, she testified, "full-face" three times, for two to three seconds each, and watched him for a minute or more at distances ranging from 10 to 40 feet. Her further testimony told how she reviewed police photos and picked Graham out of the lineup.

On cross-examination, defense attorney Mock questioned witness Skillern extensively on her angle of sight from her car, on the adequacy of the lighting in the parking lot, and on the length of time she saw the shooter. The light was bright enough and the time was long enough, she insisted, for her to make the positive identification later. The cross-examination testimony ran to 36 pages, yet, said Mock afterward, "I couldn't even get her to flicker."

Mock rested the defense case without calling the defendant or any witnesses. The guilt phase of the trial ended on the day it started. And on the same day, the jury found Graham guilty of capital murder. The sentence was execution.

20 Years of Appeals

Over the next 20 years, the Gary Graham case and its appeals gained nationwide fame. Among organizations that provided legal assistance and other support were: the Texas Appellate Practice and Educational Resource Center, Inc., which provides direct representation for a limited number of death-row inmates; Amnesty International, which organizes worldwide rallies; the NAACP Legal Defense and Educational Fund, Inc.; the National Coalition to Abolish the Death Penalty; and the Texas Conference of Churches. Hollywood stars, including Danny Glover, Ed Asner, and Mike Farrell, led public appeals. Several Gary Graham Coalitions and legal defense committees were organized.

At a 1987 hearing on Graham's petition for a writ of habeas corpus on a claim of ineffective assistance of counsel, District Judge Donald Shipley deemed the affidavits of four alibi witnesses, who had come forward some years after the crime, as not credible.

In January 1990, the U.S. Supreme Court voted 5-4 against considering the Graham case on the basis of mitigating evidence of his youth and troubled background. It remanded the case to the U.S. Court of Appeals, Fifth Circuit, which concluded that the jury that sentenced Graham to death had not had an opportunity to consider the facts that suggested a lesser sentence. In January 1992, however, the Fifth Circuit reinstated the death sentence. A year later, the U.S. Supreme Court again denied an appeal.

On April 28, 1993, Texas governor Ann Richards granted Graham a 30-day stay of execution only hours before he was to die. By law, the governor was allowed to grant only one such stay. A new execution date, June 3, was set.

On June 2, the Texas Court of Criminal Appeals unanimously granted a new stay, pending the outcome of another Supreme Court case involving the mitigating factor of a youthful defendant's age. In this appeal, Graham's attorneys argued that, while new evidence—the discovery of alibi witnesses—had come to light, it could not be introduced because Texas law demanded its presentation within 30 days of conviction.

August 16 brought another stay from the Court of Criminal Appeals less than six hours before Graham was scheduled to die by lethal injection.

The following April, the same court ruled that Graham was entitled to a hearing on his claim of new testimony from witnesses who had not appeared at the trial. Hearings and pleas for clemency continued well into 2000. By then, Graham's case had been before the U.S. Supreme Court four times, and he had seen 33 judicial or executive reviews and seven stays of execution.

On June 22, 2000, after the Texas Board of Pardons and Paroles voted 12 to 5 to reject a request for clemency, Gary Graham was executed. The case created a brief stir in the 2000 U.S. presidential campaign by focusing criticism on the high number of executions in Texas under Republican Governor George W. Bush, who was running for and would eventually win the presidency. Bush and his supporters, however, largely deflected any criticism by pointing out that under Texas law the governor followed the recommendations of the Board of Pardons and Paroles.

—Bernard Ryan, Jr.