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Courts Considering Gary Graham's Fate

Aired June 22, 2000 - 8:00 p.m. ET


JIM MORET, CNN ANCHOR: Tonight, two separate issues facing the two major presidential candidates. We start with the one involving George W. Bush. As Governor of Texas, his duty to carry out or stay the execution of a convicted murderer, Gary Graham.

After the Texas Board of Pardons and Paroles voted to proceed and the Supreme Court denied a stay by a five to four vote, Graham was scheduled to die by lethal injection one hour ago, but so far that has not happened.

CNN's Charles Zewe is at the prison facility in Huntsville, Texas to bring us up to date -- Charles.

CHARLES ZEWE, CNN CORRESPONDENT: Jim, Gary Graham, we're told by prison officials here is still inside a holding cell only three feet from the execution chamber awaiting his fate. We are told also by the officials and officials from governor's office in Austin that it all has to do with a civil court suit filed in federal district court in Austin that is delaying matters.

The Texas attorney general's office is trying to work out what happens next here. But Glen Castleberry, who's a prison spokesman, said just a little while ago that if the delay can't be worked out by midnight tonight Central time, midnight tonight Central time, that there will be an automatic 30-day delay in this execution.

Right now in the streets outside of the prison, which is known as the "Walls Unit," the unit that houses the death chamber, there are hundreds of protesters who have been in street massed, especially in large numbers over the last couple of hours.

For the most part, they have been vocal and there have been no incidents, with one major exception. At one point, during the afternoon, they broke through -- at least a dozen demonstrators did -- broke through police barricades and were chased down by the more than 200 officers on hand to keep the peace here.

Gary Graham had urged his followers for months to try to resist his execution violently. He himself has been resisting. He had to be physically subdued to be brought to the death house itself, to be put in the holding cell. He told spiritual minister, in a final conversation today ahead of his scheduled execution, that he thought it was his duty to resist violently. As far as we can tell, no one was injured. Perhaps as many as a dozen people were arrested by police. We still do not have details on where they have been taken, those arrested, along with what they will be charged with.

Now, the debate -- the emotional debate -- on both sides of this issue on whether Gary Graham should or should not be executed has been going on for years here in Texas. Prosecutors say he is a man who richly deserves to die.


ZEWE (voice-over): Police say Gary Graham was a one man crime wave. Nineteen years ago investors contend that the then 17-year-old laborer staged a week-long rampage of robbery, rape and theft in Houston that left two people wounded and an Arizona man dead. He was arrested naked and asleep a week after the slaying, at the home of a 57-year-old woman police say he abducted at gunpoint and raped.

Graham pleaded guilty to 10 armed robberies, but denied he had any part of the murder, saying at the time of the crime, he was with another woman, but he couldn't identify her.

The case drew exceptional national attention largely because of Texas Republican Governor George W. Bush's presidential campaign, the increased scrutiny of capital punishment in America and questions over the strength of the case against Graham.

He was convicted primarily by testimony from this woman, Bernadine Skillern, who said she watched from inside her car in May, 1981 as Graham confronted a man outside a Houston supermarket, struggled with him, and then shot him. Graham's lawyers challenged Skillern's credibility and wanted testimony from two other people at the grocery store that night. They claimed Graham was not the killer. They only came forward, though, long after the trial and courts later ruled they were not credible.

The Texas Pardons Board along with numerous courts, including the U.S. Supreme Court, rejected claims that Graham was unfairly convicted.


ZEWE: And that latest vote by the Supreme Court came on a five to four vote late today. Graham, as we said earlier, is being held in a holding cell just feet from the gurney where he will be strapped and put to death if and when the state gets the go ahead -- Jim.

MORET: Charles, it sounds like you're describing what would be an emotional roller coaster for people on both sides of this issue, hoping for a stay at various points only to be knocked down, and now this latest delay. What's the mood like out there?

ZEWE: It's very tense. It's been raw, especially in the last couple of hours, Jim, when the protesters broke through the barricades. That seemed -- just for a few moments there because police quickly got control of the situation again -- that things were getting out of control.

We go back to what Gary Graham has been saying about resisting violently. There was a great deal of concern leading up to this day that there could be some sort of major incident. As a matter of fact, the businesses in downtown Huntsville, many of them closed early today out of fear that emotions might boil over.

Now, for the most part, police are keeping control here. I haven't seen anyone injured. We have seen people arrested, and there are lots of people, you know, talking about what's going on in the street, yelling about what's going on, chanting, marching through downtown Huntsville right now. But there have been nobody -- nobody has been injured here. And things haven't gotten out of hand, so far.

MORET: Thank you, Charles Zewe. We will monitor developments throughout the hour and if warranted, go back to you live. Thank you very much.

Joining us now from our Washington bureau with more on the execution of Gary Graham, our legal analyst, Greta Van Susteren.

Greta, first talk about this latest stay or delay. We're hearing of a civil action. Walk us through this process -- what it could be.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: First of all, Jim, you know I'm surprised about it. You know, when they got the decision 5- 4, I pretty much thought that it was over for Gary Graham. We don't know yet if he will be executed or will he be executed before midnight or at some later date.

But defense lawyers, good criminal-defense lawyers, are very industrious. They try everything. And you can tell that these lawyers were ready for an adverse decision from the United States Supreme Court because they immediately went to federal court and filed a civil action. They're still attempting to get the pleadings in the case. I don't know exactly what they have pled.

But a civil action could be something called a habeas corpus petition, which you think of in connection with a criminal case. It's a Latin term "to have the body," saying that he is being held unconstitutionally. That's a civil pleading. Or they may have come up with something even more ingenious. But they've obviously done something to convince at least the state to put it on hold while the matter is resolved.

Now, I understand this was filed in Austin. There may be a reason they filed it in Austin. They may have filed it in Austin because the governor is there. Or they may have filed in Austin because they're shrewd enough to know that there is a federal judge down there that may be more sympathetic to the issues that Gary Graham wishes the court to consider.

So at this point we're unsure what it is, but you can see that these lawyers were ready. As soon as that 5-4 decision came down, the lawyers who are incidentally -- they're in Houston, had the matter filed in Austin. And now we're in a holding pattern.

MORET: Well, Greta, Charles Zewe reports a scenario that if something isn't done within five hours, that there will be an automatic 30-day stay. What is the likelihood legally that something could be done within the next five hours?

VAN SUSTEREN: The courts are ready for these types of actions. And if a federal judge has this in his hands and the state will then certainly respond -- very short order. It could be a one paragraph response. It could even a verbal response if they go to court.

These are unusual proceedings. These are not the type of proceedings where you get 10 days to respond. These are emergency proceedings. And the court is called into action. The state is called into action. And, of course, Gary Graham's lawyers want to get past that magic hour of midnight so that they have 30 days so they can really set forth the pleadings to explain why it is Gary Graham should be spared.

And, of course, the state does not want that to happen because the state does not want to have Gary Graham spared. They want him executed tonight. So the two lawyers are really locking horns. They have very different views here, not only in terms of life and death, but the state wants this done before midnight and, of course, Gary Graham's lawyers are trying to push the envelope and get this decided after midnight.

MORET: Greta, this is a 19-year-old case. Why, in your view, should most Americans be concerned with this particular execution?

VAN SUSTEREN: I tell you what, this isn't -- Jim, this isn't a case about whether you're for the death penalty or against the death penalty. This is about process. And this is the type of case that lawyers like myself want to point out to the American people. Is this the type of case, if you believe in the death penalty, you should put someone to death?

This is a single witness identification. And one of the things that troubles defense lawyers is the fact that people can make mistakes about identifications. I can walk across a restaurant and think I see a friend and get over there and discover it's not the right person. It's because identifications are so vulnerable. They're so flawed. That's the problem in this case. There's no physical evidence. There isn't DNA. There's not hair. There's not fiber. There isn't ballistics. Nothing that you have in your sort of run-of-the-mill criminal case to corroborate this identification.

Now I must add that the witness's case is 100 percent certain. But we've seen cases -- the one that's been most notable in the press recently of Jennifer Thompson who in 1984 was raped and got a really good look at her rapist, identified him, was 100 percent certain, and 11 years later DNA proved she was wrong, and she was very surprised to learn she was wrong since she was 100 percent certain.

So the issue here is are we -- do we want to execute someone based on a single identification? We convict people every day of the week on a simple identification. But this is different because this is the death penalty. This is not simply putting someone away for life.

Gary Graham is a very dangerous man. He's committed a lot of horrible robberies. But we need to examine these facts and try to decide if this is the type of case we want to put someone to death for.



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