The New York Times

Friday, June 23, 2000

After a Number of Delays, Inmate Is Executed in Texas as 11th-Hour Appeals Fail

By FRANK BRUNI with JIM YARDLEY

AUSTIN, Tex., June 22 -- With Gov. George W. Bush's backing and his somberly stated belief that "justice is being done," the State of Texas tonight executed Gary Graham, who had been convicted for the 1981 murder of a man outside a Houston supermarket.

The execution was carried out even though 5 of the 18 members of the Bush-appointed parole board argued against it and the United States Supreme Court divided sharply over the issue, declining to review the case by a 5-to-4 vote.

When the moment of Mr. Graham's execution finally arrived, Mr. Bush did not merely issue a written statement but spoke to a crowd of reporters in a solemn voice that contradicted his often light-hearted nature. His facial expression and his words matched his tone.

"This is a responsibility I take very seriously," Mr. Bush said, reading from a statement, "because the final determination of innocence or guilt is among the most profound and serious decisions a person can make. I recognize that there are good people who oppose the death penalty. I have heard their message and I respect their heartfelt point of view."

Then he recited a series of heinous crimes attributed to Mr. Graham and noted that Mr. Graham had confessed to some of them. He said Mr. Graham's case, over the 19 years since the murder for which he was executed, had been reviewed "more than 20 times by state and federal courts" and by 33 judges. Mr. Graham had neared an execution in 1993 but was granted a reprieve by Gov. Anne Richards, a Democrat.

And he said he backed the board's vote this afternoon to authorize the execution. "After considering all the facts," he said, "I'm confident that justice is being done."

The Graham case attracted a remarkable amount of national and even international attention, for many reasons.

Questions arose about the testimony of the sole witness in the case as well as the fact that his court-appointed lawyer provided only a nominal defense. In addition, several jurors later expressed doubt that they would have convicted him if they had been aware of certain facts and testimony during the trial.

Many legal experts cast Mr. Graham's case as a perfect example of all that was wrong with the judicial system and the death penalty, though many others noted that his appeals were been lodged in dozens of courts and been considered by an even larger number of judges as he avoided execution for nearly two decades.

Mr. Graham's execution was delayed nearly two hours as his lawyers mounted last-minute appeals that took state officials by surprise.

Mr. Graham, 36, died at 8:49 p.m. central time, becoming the 135th person put to death in Texas since Mr. Bush became governor five and a half years ago. That statistic, combined with Mr. Bush's prominence as the presumptive Republican presidential nominee, partly explained why the case received such scrutiny from news organizations.

The Associated Press

Surrounded by secret service agents, Republican presidential candidate Texas Gov. George W. Bush leaves the Texas State Capitol in Austin, Tex.

Earlier in the week, Mr. Bush had said that if the Texas Board of Pardons and Paroles authorized Mr. Graham's execution, he had no power to grant Mr. Graham a reprieve, an interpretation of Texas law with which some legal experts disagreed. But Mr. Bush made no mention of that tonight as he endorsed the board's decision.

His demeanor suggested a sensitivity not only to the passions that Mr. Graham's case had inflamed but also to his own need to project an impression of approaching such responsibilities with the utmost thoughtfulness and seriousness. Mr. Bush's campaign advisers said they are conscious of and have discussed the importance of his tone and bearing when discussing the death penalty, but they said his decisions in each case were never subjected to political considerations and were entirely his own.

And, indeed, there is little evidence that Mr. Bush's fervent advocacy of the death penalty carries any political risks. Though recent polls have shown some softening in public support of the death penalty, the surveys also show that roughly two-thirds of Americans still favor it.

"I don't think the ground has shifted remarkably," said Linda DiVall, a Republican pollster. "I don't think he's got any problem. I think he's showing the proper sensitivity."

Mr. Graham's execution had been scheduled for 7 p.m. after the pardons board declined by a vote of 12 to 5 to grant a request for clemency and the Supreme Court declined to hear a last-minute appeal.

Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas voted to reject the appeal. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer voted to order the execution postponed.

A third appeal was denied by the Court of Criminal Appeals, the highest criminal court in Texas. But just before 7, Mr. Graham's lawyers filed still another one, this time a civil lawsuit against the board of pardons. Though it, too, was ultimately rejected by Judge James Nowlin of Federal District Court, the legal maneuver caused yet another delay.

Judge Nowlin called the civil action "an extremely tardy effort to delay the execution."

As the appeals worked through the courts, Mr. Graham remained in a holding cell only steps from the death chamber, accompanied by the Rev. Jesse Jackson, the Rev. Al Sharpton and Bianca Jagger, a representative of Amnesty International.

Mr. Graham made a statement before his execution. "I die fighting for what I believed in. The truth will come out," he said. His final words were: "They are killing me tonight. They are murdering me."

He died with one eye shut, one eye open, looking at Rev. Jackson. He appeared to have resisted. He had a bruise on his arm and his head restraint had come off. He was handcuffed to the gurney.

As Mr. Graham was led out of his cell at 8:20 p.m., five guards struggled to subdue him and needed a full minute to get him strapped to his gurney, said to Larry Fitzgerald, a spokesman for the Texas Department of Criminal Justice.

Bobby Hanners, a witness to the execution and grandson of the victim, said, "My heart goes out to the Graham family as they begin the grieving process. I also pray that Gary Graham has made peace with God but I truly believe justice has been served."

The board of pardons authorized Mr. Graham's execution today despite clear disagreement among the 17 members who voted today, 5 of whom recommended that Mr. Graham's sentence be commuted to life in prison. On the separate matter of whether Mr. Graham should be given a conditional pardon, all 17 members voted no. Only a simple majority of board members is required to allow an execution to proceed.

David R. Dow, a professor of law at the University of Houston, said the last-minute uncertainty that descended over Mr. Graham's execution reflected how sophisticated his lawyers were and how sensitive Mr. Bush and the State of Texas were to the intensity of attention to the case.

Under different circumstances, Mr. Dow said, the state might have gone ahead with the execution, because Mr. Graham's lawyers had already exhausted all the traditional arguments in all the usual venues.

The case also came as the capital punishment debate deepens, provoked by advances in DNA technology, studies that question the fairness with which the death penalty is administered and the emergence of Mr. Bush, who presides over a state that executes more inmates than any other, as a presidential candidate.

The governor had maintained that he was treating this case no differently than any other and that any action taken or not taken would be impervious to political considerations, immune to protests and unaffected by a campaign that has pivoted on his self-portrayal as a sensitive, compassionate conservative.

"It's not a lot of hand-wringing," said one adviser. "But everyone recognizes that the environment has changed now that he's running for president." The adviser added that there was some concern -- though not too much yet -- that the attention to the death penalty was at times eclipsing other campaign issues.

Had Mr. Bush taken any kind of action to stop Mr. Graham's death, it would have been the second time this month that he had intervened to halt an execution in defiance of the board's recommendation. Before June 1, he had never done so, although he did concur in 1998 with the board's vote to commute the death sentence of Henry Lee Lucas, a confessed serial killer, to life in prison.

Several political analysts said one challenge before Mr. Bush was not to come across as vulnerable to public pressures or unsteady in his convictions. Mr. Bush has repeatedly assailed Vice President Al Gore as someone who bends too readily with the political winds.

"The most important thing for him to do is remain consistent," said Don Sipple, a Republican strategist. Mr. Sipple said he believed it was voters' impressions of Mr. Bush's constancy that explained the high marks he received in many recent opinion polls for his leadership skills.

Several analysts said public support for the death penalty was strong enough for Mr. Bush to rest assured that he was on the right side of the issue. Mr. Gore also supports the death penalty and has been reticent to challenge Mr. Bush on the brisk rate of executions in Texas.

Under Texas law, the governor has extremely limited discretion if the board authorizes an execution. All the governor can do under those circumstances is grant the inmate a one-time reprieve of 30 days, though that time often grows as the inmate undertakes new court appeals.

But Mr. Bush said that in this case he could not do even that. A 64-year old clause in the Texas Constitution says that the governor "shall have the power to grant one reprieve in any capital case," and only one reprieve. Mr. Bush and lawyers for the state have interpreted that to mean that because Governor Richards had granted Mr. Graham the reprieve in 1993, Mr. Bush was unable to.

But other legal experts said the constitution could be interpreted as permitting one reprieve per governor, not per inmate. "It's plain old ambiguous," said Mr. Dow, noting that no court in Texas had ever considered the language.

Mr. Graham was convicted for the May 13, 1981, murder of Bobby Lambert in the parking lot of a Houston grocery store. His conviction provoked little fanfare at the time, but his case gradually attracted the attention of death penalty opponents.

His advocates argued that Mr. Graham's trial lawyer, Ronald Mock, put up a lackluster defense and scarcely investigated the case. No physical evidence linked Mr. Graham to the scene, and ballistics tests found that a .22 revolver confiscated from him did not match the murder weapon. His conviction rested on the testimony of a woman sitting in her car, Bernadine Skillern, who saw the killer as he confronted and shot Mr. Lambert about 30 feet away.