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Jewish World Review June 27, 2000 /24 Sivan, 5760

John Leo

John Leo
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Consumer Reports

Attitude toward death penalty gets in the way of facts

Executions, guilt, and the facts of the Graham case -- PEOPLE WHO WORK in the news media are overwhelmingly opposed to the death penalty, so the nearer we get to any well-publicized execution, the more innocent the perpetrator is apt to look. This often makes it hard to get beyond the attitudes of the press to the actual facts of a capital case.

In the Gary Graham case, what we know for sure is that in eight days of May 1981, the accused went on a spree of more than 20 violent crimes, including four shootings, one rape, and 10 armed robberies. Two men Graham shot at point-blank range miraculously survived, one by shoving Graham's shotgun downward and taking the blast in his leg, the other by sheer luck–a bullet from Graham's pistol passed cleanly through his neck. The shotgun victim said Graham shouted to an accomplice, "Finish the honky off!" Graham's involvement in these crimes is not in dispute. Though he was never tried for the "honky" shooting, Graham was positively identified by the victim and his girlfriend. He confessed to other shootings and other crimes committed during the eight-day spree.

What he didn't confess to was the murder of Bobby Lambert, the crime for which he was executed last week. On the night of May 13, a young black man in a white jacket followed Lambert out of a Houston grocery, tried to rob him, and shot him in the chest. The only witness who got a good look was Bernadine Skillern, a black woman employed by the Houston public schools. She said she saw the robbery and murder from her car, 20 to 30 feet away, and watched the killer for perhaps 60 to 90 seconds. She pursued him in her car, seeing him full-face for a total of two or three seconds. Once, she said, she saw him looking directly at her, from less than a car length away. Some editorial writers apparently based their accounts on defense press releases, which said Skillern had only a split-second look from a considerable distance. Writing in Texas Monthly in 1993, Gregory Curtis noticed that "very little original reporting has been forthcoming. . . . The result is that fliers from Graham's supporters are taken for fact, with even the language of the fliers showing up in stories and editorials around the country."

Strong witness. Skillern, who picked Graham's face out of a pile of photos of black men and then identified him in a police lineup, was an unusually strong witness. The defense said she was unshakable under cross-examination. "Ms. Skillern was stronger than an acre of garlic," said Ron Mock, one of Graham's attorneys at the trial. "I couldn't even get her to flicker."

The defense claimed reasonable doubt on the basis of alibi witnesses and eyewitnesses who say Graham was too tall to be the killer. But these witnesses either changed their stories, gave accounts that didn't fit known facts, or showed up long after the trial. In 1993, a long report on the case by Susan Warren of the Houston Chronicle said: "New testimony by old witnesses contradicts the stories they gave in 1981, and the new witnesses give details inconsistent with the facts of the case." One witness showed up 12 years later, claiming that a radio broadcast had revived his memory of seeing the shooting. The alibi witnesses–including two of Graham's cousins and a woman who later married him–turned up five years after the trial and were judged not credible.

As Hollywood stars and foes of capital punishment began descending on the case, national writers weighed in, often garbling the details. One famous columnist wrote that perhaps the alibi witnesses weren't called in 1981 because the defense thought Graham was guilty from the start. But there were no alibi witnesses in 1981. The defense said Graham originally said he had spent the night of May 13 with a girlfriend but couldn't remember who she was, where they had been, or what she looked like.

Supporters of Graham argue that his original attorneys put on a timid nondefense. But the defense had to tread carefully and say nothing that would open the door to testimony about Graham's other crimes. As Gregory Curtis wrote: "The other crimes . . . were not merely similar to the Lambert crime–they were identical."

Many people (myself included) think it's wrong to hand out death sentences on the testimony of a single eyewitness, however strong. Still, it's hard to argue that the sentencing jury acted unreasonably. It knew (as the original trial jury did not) about Graham's week of mayhem and concluded that he would be extremely dangerous if he escaped or won release. One female victim of Graham's spree said he told her: "I've killed three people, and I'm going to kill you." A deputy sheriff who took Graham to court quoted him as saying, "Next time I'm not going to leave any witnesses."

Opponents of capital punishment, unsurprisingly, see it differently. "I have never seen this kind of evidence pointing to innocence; it is overwhelming," said Dick Burr, a lawyer for the National Association for the Advancement of Colored People. "He is an innocent martyr," said the Rev. Jesse Jackson. "There is powerful evidence that [Graham] did not commit the murder," said the New York Times. All deeply felt, no doubt–but untrue. Someday, we will have an honest discussion of the death penalty pegged to a specific case. But this wasn't it.

JWR contributor John Leo's latest book is Two Steps Ahead of the Thought Police. Send your comments by clicking here.


06/20/00: Double troubles
06/13/00: Fools paradise
06/06/00: Accidental conspirator
05/30/00: Faking the hate
05/23/00: Was it law or poetry?
05/16/00: Here, there and everywhere, people have gone bonkers
05/09/00: Tufts evangelicals are punished for acting on their beliefs
05/02/00: Elian's opera isn't over until nearly everyone sings
04/25/00: All the news that fits: The media serve up many stories from a standard script
04/19/00: Those darned readers: The gap between reporters and the general public is huge
04/05/00: Census sense and nonsense
03/29/00: Hollywood message films leave no room for other views
03/22/00: The Vatican confesses, but is it enough?
03/14/00: Watch what you say: The left can no longer be counted on to defend free speech
03/07/00: McCain's malleable messages
03/01/00: Bush's appearance at Bob Jones U. will dog him all the way
02/23/00: 'Multi-millionaire' show is new evidence we're insane

© 2000, John Leo