The New York Times

Monday, June 19, 2000

Death Penalty Troubles in Texas

The case of Gary Graham, a convicted killer scheduled for execution by lethal injection in Texas on Thursday, is a troubling saga of the nation's justice system gone badly awry. Now, two decades after the shooting for which Mr. Graham was condemned, this case poses a test of moral leadership for Gov. George W. Bush. It should challenge his unwavering faith in his state's administration of the death penalty, which has produced a rate of execution that is by far the highest in the country.

These basic facts are indisputable. Mr. Graham, who was just 17 at the time of the shooting, was convicted based solely on the testimony of a single eyewitness, Bernadine Skillern, who saw the assailant's face only fleetingly at night through her car windshield, from a distance of 30 to 40 feet. Mr. Graham was represented by a famously lackadaisical defense attorney named Ronald Mock. Mr. Mock put on virtually no defense. He failed to alert the jury to the flawed police lineup that may have biased Ms. Skillern's recollection, or to the ballistics evidence showing that the gun found on Mr. Graham when he was arrested was not the gun used in the crime. Nor did Mr. Mock present two other witnesses who say they saw the assailant, and that it was not Mr. Graham.

This is a shocking example of how inadequate legal representation sends poor people to death row, where some are no doubt wrongly executed. Shoddy lawyering also contributes to the extremely high reversal rate in capital cases documented in a new study of death penalty appeals by Prof. James Liebman of Columbia Law School. In Texas, as an investigation by The Chicago Tribune showed last week, inept legal defense work is a particularly acute problem.

Earlier this month, in a nod to the new politics of the death penalty, Mr. Bush postponed the execution of an inmate named Ricky Nolen McGinn to allow DNA testing that could bear on his guilt or innocence. In the Graham case, there is no biological evidence to test, but the argument for a reprieve is at least as strong. Thanks to poor legal representation, and the impact of new state and federal laws designed to speed executions by truncating the appeals process, Mr. Graham has never gotten a fair hearing.

It may be argued that Mr. Bush has no power to grant a reprieve, or postponement of the execution, since Texas law permits only one gubernatorial reprieve, and Mr. Graham received one from Gov. Ann Richards in 1993. However, it is not clear that the law precludes a second reprieve from a different governor. In any event, nothing prevents Mr. Bush from exercising leadership by urging the state's board of pardons to slow things down and conduct the careful review of the evidence that the courts failed to provide.