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Burden of Proof

Texas Death Row Case: Gary Graham Scheduled to be Executed in Less Than Two Weeks

Aired June 9, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

GARY GRAHAM, TEXAS DEATH ROW INMATE: It is extraordinary, with the lack of defense investigation initially into the case, that, at this point, it ain't registering (inaudible). The economic situation, not being able to afford a lawyer, I think in Texas, perhaps, it's best to be rich guilty as opposed to being poor and innocent. That's what we're dealing with here.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: Today on BURDEN OF PROOF: an interview from death row, the case of Texas inmate Gary Graham, who is scheduled to be executed in less than two weeks.

ANNOUNCER: This is BURDEN OF PROOF with Roger Cossack and Greta Van Susteren.

VAN SUSTEREN: Hello and welcome to BURDEN OF PROOF.

In Livingston, Texas, inmate Gary Graham sits on death row for a 1981 murder outside a Houston supermarket. He's scheduled to be executed by the state on June 22nd.

ROGER COSSACK, CO-HOST: Graham admits to at least 10 armed robberies the week of the murder, but claims his innocence in the murder of Bobby Lambert. The case is a controversial one in Texas, where the battle lines are being drawn over the death penalty and the access to a competent defense.

VAN SUSTEREN: On Wednesday, I traveled to the Terrell (ph) unit of the Texas criminal justice system in Livingston and talked to Graham about his case and about Texas death row.

(BEGIN VIDEOTAPE)

GRAHAM: Politically, they cannot afford to acknowledge that they have poor people, innocent people, here in Texas, who are being systematically killed. And it's a killing machine, and they are killing people for votes and trying to get elected in this process -- the governors, the judges and all of them are part of it. And they cannot acknowledge that. VAN SUSTEREN (voice-over): Gary Graham, who now goes by the name Shaka Sankofa, is on death row for the 1981 murder of 53-year-old Bobby Lambert. Prosecutors say the killing was part of a 22-armed robbery crime spree by Graham, who was 17 years old at the time.

GRAHAM: I am innocent of the charges. I did not kill Bobby Lambert. There's a mountain of evidence, overwhelming and compelling evidence, to prove that I did not kill Bobby Lambert.

VAN SUSTEREN (on camera): The Gary Graham case has become a Hollywood cause celeb, with his supporters seeking help from Tinseltown to keep Gary from the Texas death chamber.

Texas politicians reject what they call the "celebrity jury." Gary Graham's supporters claim he had inadequate representation at trial and that he was convicted solely on the evidence of one eye- witness who selected him from a police line-up.

BERNADINE SKILLERN, WITNESS: I saw Mr. Graham kill Mr. Lambert on that parking lot, and I'm kind of -- I'm not kind of, I am upset that this is being made out to be a racial issue and it is not.

GRAHAM: She looked at the photograph in the photo spread with about five or six individuals in it, and she said, she told the police that the "suspect," quote, unquote, that the complexion of the suspect was dark and thin. So she excluded me from the photo spread, and yet she later claims to have identified me in a police lineup.

VAN SUSTEREN: Each time an execution date has been set, his supporters have staged rallies to garner support for the case. But victims of Gary Graham have also spoken out, including David Spiers, who accepted a ride from Graham after his car broke down on the highway.

DAVID SPIERS, VICTIM: The next thing I know, he pulls out a sawed-off shotgun, puts it in my chest. At that time, I hit the gun down and slid over, and he pulled the trigger and blew my leg in half. It was absolutely a war zone at that time.

ROE WILSON, ASSISTANT DISTRICT ATTORNEY, HARRIS COUNTY, TEXAS: He would terrorize them while the robbery was going on, and he literally went from crime to crime.

VAN SUSTEREN: Two months ago, the Graham case took on a deadly legacy. His 20-year-old son, who was just 2 when Graham was arrested, was charged with murder. Prosecutors will not seek the death penalty in that case.

GRAHAM: And I think it's important for us to suspend judgment. I don't know all the facts, I haven't heard, haven't had an opportunity to look at all the facts, but I think it's important for him to have his day in court.

VAN SUSTEREN (on camera): Have you had a chance to speak to your son since he was arrested?

GRAHAM: We have communicated, yes.

VAN SUSTEREN: How's your son doing?

GRAHAM: He's fine.

VAN SUSTEREN: What does your son say about the fact that you have a June 22nd execution date?

GRAHAM: Well, he's concerned like so many people around the world are concerned, and we're concerned about my youth and his youth. We're concerned about the situation, and he's very concerned.

(END VIDEOTAPE)

VAN SUSTEREN: Gary Graham, also known as Shaka Sankofa, is scheduled to die by lethal injection in just 13 days.

Joining us to discuss this case from Houston is Graham's defense attorney, Dick Burr. And also in Houston, former state prosecutor Rusty Hardin, the lawyer for eyewitness Bernadine Skillern.

COSSACK: And in Austin, Texas, we're joined by Jasper County District Attorney Guy James Gray. Here in Washington, Heath Chapman (ph), former federal prosecutor Marty Rogers, and Eric Kuester (ph).

VAN SUSTEREN: And in our back row, Lacey Bohnen (ph), Brian Fork (ph), and Barrett Edmondson (ph).

Dick, first to you, your client told me that the only evidence linking him to the crime is a single eyewitness, that there's no forensic or no physical evidence to link him to the crime. Is that true?

DICK BURR, ATTORNEY FOR GARY GRAHAM: That is absolutely correct.

VAN SUSTEREN: How many witnesses were there to this robbery- murder, and what did the other eyewitnesses say about the assailant?

BURR: Well, the police report recorded five adult eyewitnesses who either saw the shooter before the shooting, or during, or after the shooting.

VAN SUSTEREN: Why, Dick, I mean, with a single eyewitness, I mean, a single person identifying him as the murderer, and there are five eyewitnesses to the crime or shortly before or after, why is it, do you think, that he was convicted of murder?

BURR: Well, he was convicted because only one of the eyewitnesses, the one who misidentified him, testified about who the killer was. There are two other eyewitnesses did testify, they said that they could not remember what the shooter looked like, but they were not asked whether Gary Graham was the shooter.

That left two other eyewitnesses to make the five adults, those two were store employees. They saw the shooter prior to the shooting, one of them saw him for as long as a 10- or 15-minute period off and on. Saw his face quite clearly, saw his stature. Neither of those testified because the defense lawyers didn't investigate them or talked to them. And had they testified, they would have described the shooter as approximately six inches shorter than Gary Graham with a much thinner face, much lighter weight, and they would have exclude Gary Graham completely.

COSSACK: Dick, the individual that did identify your client as the shooter, was that -- was she certain that he is the person? did she say this is the person, and I'm sure of it, and I stuck by this? has she changed at all?

BURR: By the time she testified she was certain and she has not changed her mind since then. She was, however, I think the victim of a suggestive identification process, if I can explain very shortly. She was shown -- she was the person who helped the police draw a composite of the suspect. Thereafter, she was shown five pictures, one of which was Gary Graham. All of the people who saw this crime described the shooter as having short hair and no facial hair. Of the five photos, one of which was Gary Graham, Gary Graham's was was the only photo that had short hair and no facial hair. All of the others had one or the other, had you know long hair or facial hair or both. She was drawn to his photo, she hesitated, according to the police report, said this kind of looks like the guy, but the fellow I saw had a thinner face and a darker complex. She did not make an identification from the photo.

The very next day, however, she saw Mr. Graham in a line-up with four other people, none of whose photos she had ever seen before, and she identified Mr. Graham.

Experts on eyewitness identification say that is a classic situation in which there can be a mistaken identification because a person cannot disentangle whether the familiarity with the person they identify is from having seen a photo before or from having seen that person commit a crime.

VAN SUSTEREN: Dick, I take it that you, I know Mr. Graham, when he spoke to me, concedes that he was, quote, "a bad guy," an armed robber on previous occasions. But simply that he didn't commit this robbery-murder; is that correct?

BURR: That's right. And you know, it's important for people who are listening to this to understand that people can certainly be sentenced to long years of imprisonment for crimes that do not involve a murder. And he has been, he was. But in order, under the U.S. Constitution and all the laws of Texas, you cannot be sentenced to death for a crime that does not involve a murder.

And if what's happened here, I fear, from the very beginning was, because of his guilt of the other crimes, his lawyer, law enforcement officers, and ultimately those who were closest to him, the lawyers and the defense investigator, believed he was guilty. And there was no investigation done, and no real effort made to present the evidence that showed that he was not involved in the murder.

COSSACK: Rusty Hardin, you represent the eyewitness in this case. How sure is your client, and tell us about her and her identification?

RUSTY HARDIN, FORMER STATE PROSECUTOR: She's extremely sure. I talked to her as recently as 10 or 15 minutes, and I think Richard's continued I'm sure good faith but clearly inaccurate portrayals of what she saw and how she acted is probably going to result in her being willing one final time to talk to the media next week, and that is the decision of about 30 months ago. We'll visit a little bit more and make sure she is really willing to give up her privacy again. It's been seven years since she did what you saw in those clips.

VAN SUSTEREN: What did she see though? how long did she observe the robbery/murder? how far away was she? what were the lighting conditions?

HARDIN: She is in the parking lot while her daughter runs in to get school equipment. She is sitting in the car. She sees Gary Graham come up to Mr. Lambert. She sees him pull the gun. She sees him shoot him. As soon as the shooting, she turns on her lights, she turned -- they turned and she gets a full-faced view of Gary Graham. She is inching forward with her lights, that's what makes Gary Graham run away. She is the only person who was in the parking lot at the time of the shooting.

VAN SUSTEREN: Dick, what about that description, do you -- is that your understanding of the testimony?

BURR: No, she -- I think that's basically accurate. She saw the event take place, and she testified that she followed the shooter out of the parking lot.

HARDIN: Greta, let me mention, she saw a photo spread before the second one in which his face was not in there and said: The man who did this is not in this photo spread. When she saw the second photo spread, Gary Graham's picture was in there. She said: This looks like the man. I believe this is the guy, but to be absolutely certain I want to see him in person -- and that's why the lineup the next day.

She pointed to him immediately. There was no suggestion. She has no doubt. She has never wavered. The judge put in his notes at trial: This is the strongest eyewitness testimony I have ever seen.

COSSACK: All right, let's take a break.

Up next, prosecutors claim that Gary Graham had about 30 court hearings since his conviction in 1981. So why hear this case again?

Plus, a closer look at how D.A.'s prosecute these cases.

Stay with us.

(BEGIN LEGAL BRIEF)

White House lawyers say some e-mails from 1998 and 1999 in Vice President Al Gore's office may no longer exist because they weren't stored on back-up computer resources. Missing White House e-mails are being investigated by the House Government Reform Committee. (END LEGAL BRIEF)

(COMMERCIAL BREAK)

(BEGIN VIDEOTAPE)

VAN SUSTEREN (on camera): Shaka, are there moments when you have some sadness about what's going to happen to you?

GRAHAM: I think I have sadness about what is happening in the system where there...

VAN SUSTEREN: But what about to you?

GRAHAM: Well, to me, I think certainly I have -- it's been 19 years. And it's been a long time. And I have lost -- my mother and my father have both passed since I've been here. And I've have some deaths in the family. And, you know, I've had some devastating days and devastating moments. But I have been a leader in organizing opposition to this systematic oppression that we're dealing with here.

(END VIDEOTAPE)

COSSACK: Gary Graham, who also goes by the name Shaka Sankofa, is scheduled to be executed on June 22nd for a 1981 killing outside a Houston supermarket.

Over the past 19 years, prosecutors claim that his case has been heard in court roughly 30 times. And last week, his attorney filed a clemency request with Texas officials.

Let's go right to you, Dick, has there been a hearing 30 times?

BURR: No, there has never been a hearing.

COSSACK: Or a review of his case 30 times?

BURR: We have asked courts time and time again to hear this evidence of innocence, not to just take Rusty Hardin's word or my word for what records say, but to look at the records, to listen to witnesses, to use the time-honored engine in this legal system for determining the truth and credibility of witnesses. No court, since this evidence of the other eyewitnesses exonerating Mr. Graham, since evidence that his gun did not fire the fatal bullet, has been revealed. No court has been willing to hold a hearing.

We have been dismissed, denied, rejected for a whole variety of technical, procedural reasons. No judge has heard us.

VAN SUSTEREN: Let me ask Guy James about this. Let me ask Guy James about that.

Guy James, you know, we always hear this thing about the defendants getting off for technicalities. Here the prosecution is sort of getting off for technicalities. These cases can't get back into court. Why not have another court review this to see whether there is an innocent man being convicted or not?

GUY JAMES GRAY, DISTRICT ATTORNEY, JASPER COUNTY, TEXAS: Well, you'd love to be able to do that, really, but it's evolved over the years. Years ago, defense lawyers would piecemeal their appeal. They'd file one issue, get a delay. When that was resolved, come back, file another issue. So now the rules are that you can't hear one -- can't hear an issue unless the lawyers were unable to bring that issue up before.

VAN SUSTEREN: Doesn't that bother you, Guy James, when you're talking about the ultimate penalty, death, that we use these technicalities to slam the door so someone can't get back into the courthouse?

COSSACK: Well, wait, wait, wait, wait. Let me -- before -- Rusty, is that what's happened?

HARDIN: No!

COSSACK: Is that your opinion is what's happened?

HARDIN: No, that's not what's happened. I mean, he's had two different hearings. What Richard is talking about is, is that each time they come up with new imaginative claims, that last one they say hasn't had a hearing. In 1986, five years after the trial, for the first time, they started talking about they had alibis.

They had a writ hearing in 1988, seven years after the trial, in which the defense attorney, a very good appellate attorney, started to present these four alibi witness. The two of them were so bad, he decided not to call the other two. And a judge specifically found they weren't credible or believable. Then after that, they take advantage of what they have every right to, a federal writ hearing. A federal district judge made findings of fact that these witnesses were not credible.

VAN SUSTEREN: Well, let me ask Marty.

HARDIN: This is crazy.

VAN SUSTEREN: Marty, you hail from Texas, you've been a federal prosecutor. Do defendants on death row, do they have easy access to get back into court to prove innocence or not, if they can indeed prove that?

MARTY ROGERS, FORMER FEDERAL PROSECUTOR: Oh no, there is not an easy access for a death row inmate to prove his innocence. You know, having another trial, you know, is not feasible. If it's true what he was just saying about the alibi witnesses coming forward and being inherently incredible...

COSSACK: Or being found inherently credible.

ROGERS: By a judge.

COSSACK: The judge made that decision. Whether they are or not, you know, we'll never know.

ROGERS: Right, that's true. It's just that you can't have one trial after another trial, if for no other reason than double jeopardy. You know...

VAN SUSTEREN: But you have these cases where people -- this is not the particular case -- but some cases where DNA might exonerate someone and prosecutors will fight, fight, fight to have that DNA testing done which would exonerate someone. How do you defend that?

ROGERS: I mean, prosecutors would fight not to have it done.

VAN SUSTEREN: Not to have it done.

ROGERS: OK, I'm sorry, it's just so I understand the question.

HARDIN: But we have one in Texas where it's being done right now.

ROGERS: Yes, we do. And I think that in those sorts of situations, where it's a DNA kind of question, where there is DNA available and it can be tested and they can look at it, you know, that was an easy decision -- and of course an easy political decision as well for Governor Bush to do that recently in the Texas case he just mentioned.

COSSACK: And he just...

ROGERS: But in this case, where it's a mis-I.D. thing, and the only witness who, according to her lawyer -- she sounds to me like she's is a good and true witness who knows what she's doing and pretty gutsy to have turned her lights on someone when she realizes shots have taken place, and to follow that guy with her headlights. And the other witnesses -- I mean, that's a good I.D. witness, only having one I.D. witness may be all you have.

COSSACK: And they just introduced legislation in Texas for DNA testing post-conviction.

VAN SUSTEREN: Right, but we need to take a break.

Up next, the legal standards for the death penalty. And how much say does George W. Bush have in the overall issue in Texas?

Stay with us.

(BEGIN Q&A)

Q: What grounds for appeal are being considered by the lawyer for the next inmate scheduled to die in Florida?

A: Complaints from a condemned man that his execution by injection was taking too long and causing him unnecessary pain as executioners searched for a vein to insert an intravenous tube.

(END Q&A) (COMMERCIAL BREAK)

(BEGIN VIDEOTAPE)

VAN SUSTEREN: Now, in many cases, we have DNA which can exonerate someone. This isn't the type of case where DNA could do that. What about a polygraph examination. Have you every taken one?

GRAHAM: I haven't. When I was arrested in 1991, I asked for one and it was never provided.

VAN SUSTEREN: And would you still be willing to take a polygraph examination?

GRAHAM: I think that's something I'd have to look at with my -- I'd have to follow the advice of my defense attorneys on that.

(END VIDEOTAPE)

VAN SUSTEREN: Dick, a single eye-witness case with no physical evidence to link your client to a murder is troubling to me, indeed. You don't have DNA. What can you possibly do? Is polygraph a possibility to try to keep that man out of the death chamber?

BURR: You know, I think at this point, less than two weeks away from an execution when tension is extraordinary, that's a very difficult thing to do.

VAN SUSTEREN: What else are you going to do at this point? You've got a date with death June 22.

BURR: Absolutely. We are appealing to the governor and the Pardon and Parole Board in Texas.

And let me just straighten up something that got distorted in the last segment. There was a hearing with some alibi witnesses in 1988. I have never said otherwise. You know, the other folks on this show shifted from eyewitnesses to alibi witnesses. These eyewitnesses who contradict Ms. Skillern have never been heard by a judge. They are just as strong as her but no judge has ever listened to them. It is impossible to determine what could have been the outcome of this trial without an examination of Ms. Skillern and an examination of these other -- at least two of these other eyewitnesses in a fair hearing. That's what we're looking for.

VAN SUSTEREN: How long was the trial -- how long did the jury hear evidence in this case?

BURR: The trial lasted two days where the evidence was taken: about a day and a half in the guilt phase -- I'm sorry, it was about a day and a half in the guilt phase of the trial. The penalty phase lasted a bit longer because of all the other offense evidence. But the guilt phase of the trial was about a day and a half.

COSSACK: Guy James, there's going to be a, perhaps, a request for clemency, or there is a request for clemency in this case. What is a request for clemency, and what do you think the chances are?

GRAY: The requests for clemency would probably be to the Board of Pardons and Paroles, and I think their chances are pretty slim. I'm not real fond of the death penalty, but he had his day in court and it's been in the appellate process for 15 years or better, and I'm afraid this order is going to be executed.

VAN SUSTEREN: Dick, did anyone else have any motive to kill the decedent in this case?

BURR: Yes.

VAN SUSTEREN: Was that presented to the jury?

BURR: It was not. It was in -- there was a hint of it in the police report. The report noted that Mr. Lambert, the victim, had been arrested a few months earlier for ferrying drugs into Oklahoma in an airplane. He was charged with drug trafficking. Ultimately, the drugs from that plane were suppressed and couldn't be used against him at trial. The government started negotiating with him to be a witness against the people who were his supplier, you know, for whom he was bringing the drugs in.

Finally, they gave him immunity and gave him a grand jury subpoena to testify against these folk. He protested. He said, I don't want it. I'm afraid of them. Shortly after that, he was killed in Houston. We are doing all we can with our unpaid resources to try to find that person.

COSSACK: Dick, I'm afraid that's all the time we have for today. Thanks to our guests and thank you for watching.

Today on CNN's "TALKBACK LIVE," are young women opting out of the workforce for a life at home? That's at 3:00 p.m. Eastern time, noon Pacific.

VAN SUSTEREN: And join Roger and me on Monday as we take a look at lie detector tests. They can't always be used in court. In fact, most courts don't allow them. But that's Monday on another edition of BURDEN OF PROOF. We'll see you then.

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