Associated Press
June 22, 2000

Texas Board Won't Halt Execution

By Michael Graczyk

HUNTSVILLE, Texas (AP) -- The state board of pardons refused Thursday to stop the scheduled execution of Gary Graham hours before he was to be put to death in a case that focused national attention on capital punishment. His lawyers immediately turned to the Supreme Court.

The fate of Graham had rested with the 18-member Texas Board of Pardons and Paroles. It which could have recommended that Gov. George W. Bush issue a 120-day reprieve, a commutation or a pardon. Without the recommendation, the Republican presidential candidate can do nothing under state law.

Minutes after the board acted, lawyers for Graham filed an appeal with the nation's highest court, asking the Supreme Court to review the case of a man ''convicted and sentenced to death for a crime he did not commit.''

The appeal also asked the justices to order Graham's execution postponed to give them more time to study his case. Such review is necessary, the appeal said, ''to avoid the quintessential miscarriage of justice.'' Courts have turned down all of Graham's previous appeals.

Bush's office said he would have no comment until the appeals process was complete.

The execution was scheduled for Thursday evening.

Graham's execution had drawn exceptional scrutiny, largely because of Bush's presidential bid, the national re-examination of capital punishment, and questions about the strength of the case against Graham, convicted of killing a man in Houston in 1981.

The board, which has spared a prisoner only once during Bush's tenure, voted 14-3 against the 120-day reprieve, 12-5 against commutation to a lesser sentence, and 17-0 against a conditional pardon. One member is on administrative leave and did not vote.

''I can say, unequivocally, that the board's decision not to recommend clemency was reached after a complete and unbiased review of the petition and evidence submitted,'' said board chairman Gerald Garrett.

Immediately after the vote was announced, a group of protesters began chanting: ''Murderers, murderers.''

Graham was moved Wednesday evening from death row, at a prison about 45 miles to the east, to the prison in downtown Huntsville where executions are carried out.

Graham, 36, had promised to ''fight like hell'' on the trip to the death chamber, and officers had to hold him down to shackle him.

Once at Huntsville, ''he slept through the night, he refused supper, refused breakfast but took some coffee today,'' prison spokesman Glen Castlebury.

The governor does have the power to grant inmates a one-time 30-day reprieve in death penalty cases, but Graham already received one in 1993 from Bush's predecessor, Democrat Ann Richards.

Texas has executed 22 inmates this year and 134 during Bush's 5 years in office. The state has put more people to death in the last two decades than any other state.

Two years ago, Bush told the parole board to review the case of serial killer Henry Lee Lucas because of questions about the slaying for which Lucas was about to die. Lucas' death sentence eventually was commuted to life. And earlier this month, Bush authorized a reprieve for inmate Ricky McGinn pending DNA tests.

He has sent no similar messages about Graham's case.

The debate over Graham's case comes amid growing questions about the death penalty. Illinois Gov. George Ryan has placed a moratorium on state executions, and Bush and Vice President Al Gore have been forced to deal with the issue as they campaign for president.

Graham's case has prompted the loudest protests since convicted pickax killer Karla Faye Tucker was executed in 1998, the first woman put to death in Texas since the Civil War era. Death penalty opponents have adopted Graham's claims of innocence and his contention that he was convicted unfairly, primarily because of testimony from a single eyewitness.

''The Gary Graham case is significant because if he is executed ... he will be the case that will be the most frail, the weakest evidence to justify any execution in the past 27 years,'' said Lawrence Marshall, legal director of the Center on Wrongful Convictions at Northwestern University School of Law.

Opponents also used the case to focus on capital punishment in Texas and their opposition to Bush, the presumptive GOP presidential nominee.

''I'm going to uphold the laws of the land,'' Bush said. ''If it costs me politically, it costs me politically.''

Graham was 17 when Bobby Lambert, 53, was slain on May 13, 1981.

Graham pleaded guilty to 10 aggravated robberies during a crime spree around the same time, but denied killing Lambert. He argued that the eyewitness at his trial, Bernadine Skillern, was mistaken when she identified him as the gunman who struggled with Lambert before shooting him.

In an interview Thursday on NBC's ''Today'' show, Skillern insisted that she was correct in identifying Graham.

''There was never a doubt in my mind,'' Skillern said. ''Mr. Lambert was killed by Mr. Graham in the parking lot that night. ... There is not one scintilla of doubt in my mind.''

Graham also argued that his lawyer at trial, Ron Mock, was ineffective, but courts have rejected that claim.

Mock has said Graham gave him no names of alibi witnesses before the trial. The lawyer said Graham told him only that he had spent the evening with a girlfriend whose name, description and address he could not remember.

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