Gary Graham (Texas)  Case Summary   Case Chart

Allegation

On June 22, 2000, the State of Texas, with the acquiescence of the federal government, executed Gary Graham by lethal injection. The state and federal government failed to ensure Graham’s right to a fair and impartial trial in which all the facts could be presented. The unfair trial resulted in Graham’s execution.

Crime

On May 13, 1981 at approximately 9:30 p.m., Bobby Grant Lambert was shot and killed, execution-style, as he walked across the parking lot of a Safeway store in Houston, Texas. Gary Graham was arrested shortly after the murder for unrelated crimes, and was then charged with Lambert’s murder, for which he was tried and convicted.

Salient Issues

Trial

Gary Graham was convicted based on the testimony of one eyewitness, Bernadine Skillern, who witnessed the crime from 30 to 40 feet away while she sat in her car in the store parking lot at 9:30 at night. She remembered the killer as being clean-shaven with a short afro. She failed to identify Graham in a photo display. However, Graham’s photo was the only one fitting her description, and she remarked that it might be him. The next day she viewed a line-up in which Gary Graham was the only person she had seen previously in the photo array. She then identified him as the killer. The jury did not hear evidence that Skillern had failed to identify Graham in her initial review of photos. In fact, she testified that she initially did identify him, despite the police report that said she did not.

There were four other eyewitnesses in the parking lot or the store that night. Two were called for a line-up, but failed to identify Graham. They were not asked specifically if Graham was the shooter. The other two witnesses were certain that Graham was not the shooter. They had seen a man, whom they described as the killer, waiting in front of the store. Neither of these witnesses was ever heard by the jury that convicted Graham or by any judge reviewing his appeals at either the state or federal level.

Lambert was killed by a .22 caliber bullet. Although Graham had a .22 caliber pistol, according to the Houston Police Department’s firearms expert, it was not the gun used in the killing. Thus, no forensic evidence linked Graham to the murder. The jury was never given this information.

No motive for murder was established at trial. During a ten-day period following Lambert’s murder, Graham did commit a dozen aggravated robberies; he pled guilty to all charges. These crimes bore no similarity to the murder, but were similar to each other. Lambert had not been robbed and he and Graham did not know each other. Lambert, a white man, had faced federal drug trafficking charges in Oklahoma City after his arrest in 1980. He was forced to testify before a federal grand jury about the persons for whom he was transporting drugs. He was killed soon after he testified. Lambert’s attorneys informed Graham’s counsel before the execution that they had reason to believe that Lambert was killed by the drug organization with which he was involved.

Graham’s court-appointed trial attorney failed to investigate, interview, or call to the stand Graham’s alibi witnesses or the four eyewitnesses who could have testified for the defense. Evidence of Graham’s innocence was never heard in a court of law.

Appeals

Graham’s court-appointed trial attorney failed to produce evidence of Graham’s innocence at trial, as well as at his first state and federal habeas corpus proceedings in 1988 and 1993. Only after a second round of state and federal appeals in 1993 was the evidence of innocence presented. State courts refused to re-examine the case and denied the application without a hearing. In Texas, new evidence must be introduced within 30 days of sentencing. Graham was then required to show evidence of actual innocence in order to qualify for federal review. On appeal to the U.S. Court of Appeals for the Fifth Circuit, the court found that "there is a large body of relevant evidence that has not been presented to the state court" and sent the case back to Texas for an evidentiary hearing. Texas again refused to hold an evidentiary hearing. Graham immediately returned to the Fifth Circuit, but the Anti-Terrorism and Effective Death Penalty Act of 1996, which subjects cases to a much higher threshold for federal review, had been enacted by Congress in the interim, and thus the Fifth Circuit refused to review the decision by the state court.

Conclusion

Gary Graham was executed despite compelling evidence of his innocence and evidence that he did not receive a fair trial. A substantial body of exculpatory evidence existed. Initially, Graham’s court-appointed lawyer failed to seek and find such evidence. His later defense counsel did investigate and did find this evidence. By then, the trial and initial appeals already had been completed. Defense lawyers were barred from ever presenting the evidence in any court by both state and federal courts. Texas courts repeatedly refused to hear new evidence, despite eventually being directed to do so by the Fifth Circuit Court of Appeals. The Anti-terrorism and Effective Death Penalty Act (AEDPA), enacted in 1996 in the final stages of Graham’s appeals, then limited federal jurisdiction over the case. In Graham’s case, as in an increasing number of other cases, rigid thresholds for review and inflexible time limits for appeals, such as those imposed by the AEDPA, lead to violations of constitutional protections and human rights. Both state and federal courts, including the U.S. Supreme Court, denied Graham relief. In spite of substantiated allegations that Graham never received a fair trial and compelling evidence of his innocence, Graham was executed.

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