by JACK B. ZIMMERMANN, RICHARD H. BURR
In less than one month, a man who was mistakenly identified by a single eyewitness will be executed in our state. One woman, who saw a stranger's face at night through an automobile windshield from a distance of 30-40 feet for two seconds, was the only evidence that linked 17-year-old Gary Graham to the killing of a man in a grocery store parking lot in 1981.
There was no evidence that Gary knew the victim, Bobby Lambert. He had none of Lambert's property. None of Graham 's fingerprints, blood, DNA or hair was found on Lambert or at the scene. No physical evidence whatsoever proved that Gary was at the crime scene.
Whether one supports or opposes the death penalty, no person of reason advocates executing an innocent person. Gary Graham is an innocent person.
The evidence of Gary's innocence is rooted in the investigation by the Houston Police Department. Six witnesses were identified as having seen the shooter. All agreed on the accuracy of the composite drawing made by a police artist. The shooter was a young, black male, aged 18 to 25, with a thin face, dark complexion, short Afro haircut and no facial hair, who was wearing a white sport coat. Three of the eyewitnesses were called to testify at Graham 's trial. One identified him as the shooter. The second testified about what she saw, but was never asked by either side if Gary was the shooter. Nor was the third, who had been in a car only a few feet from the shooting. If either of these witnesses had identified Graham , the prosecutor would have asked them whether Gary was the shooter.
Of more significance is what the jury did not hear - and what no judge has heard in a courtroom under oath, and then evaluated after cross-examination. A male employee of the grocery store told the police he had seen the shooter as he was fleeing from the parking lot after the shooting. At the same exact line-up where the single eyewitness picked out Gary , this man told the police the shooter was not in the line-up. The prosecutor let the trial defense lawyer see the report about this witness. However, the lawyer never interviewed this witness, and he has never testified in court.
One of the most compelling eyewitnesses, a female checker at the store, saw the shooter just outside the store before he walked into the parking lot. She also told the police that the composite drawing looked like the man she saw that night. She told Gary 's lawyers in 1993 that the shooter was short about the height of her husband, who was 5 feet 3 inches tall. Gary was 5 feet 9 inches at the time of the shooting. This witness has never testified in court.
When shown a photo of Gary at age 17, both of these store employees said Gary was not the shooter. These witnesses did not know and have never known Gary . They are neutral witnesses - who willingly gave statements to the police and participated in the investigation.
One recent opinion writer argued that because these and other eyewitnesses "could not identify Gary as the killer in 1981 how, then, 18 years later, could they know it wasn't him?" The answer to this question is simple. In 1993, when they were first interviewed by the defense, the eyewitnesses remembered that the killer was 5 feet 3 inches to 5 feet 5 inches tall. This categorically excluded Graham . When shown pictures of Gary , which showed facial features and body build, they confirmed that he was not the killer.
One eyewitness did positively identify Graham , but this identification was the mistaken result of suggestive procedures. When shown an array of five photos, the witness saw only one in which the man had a short Afro haircut and no mustache or beard, a photo of Gary . His was the only photo even close to the description of the shooter. She said his photo looked like the shooter, but the shooter's face was thinner and his complexion was darker, and she was not sure it was him. The jury never heard this.
This witness, along with the male store employee, was taken to view a live line-up the next day. The only man in the live line-up whose photograph was in the photo array was Gary . Not surprisingly, she picked him out. Experts say that the likelihood of a false identification under these circumstances is greatly increased, because it is likely that she picked out the man familiar to her because of the photograph she saw the day before, not because she had seen the man commit the crime. The identifying eyewitness was never cross-examined before the jury about these suggestive line-up procedures.
The composite drawing that all witnesses said was accurate confirms that the identifying witness was mistaken. Compared to the booking photograph taken when Gary was arrested for an unrelated offense one week after the shooting, the person depicted in the composite is clearly not Gary . Two different men are depicted. Again, the jury was not given the opportunity to compare the composite drawing and the booking photo.
Also, the police report indicated that Lambert was killed by a .22 caliber bullet. Gary had a .22 caliber pistol when he was arrested. However, when deciding if Gary killed Lambert, the jury did not hear the undisputed conclusion of the Houston Police Department's firearms expert: The fatal bullet could not have been fired from Gary 's pistol.
Finally, there was just no motive for Gary to kill Lambert. They did not know each other. The state claimed it was a robbery gone bad. But Lambert had $6,000 in cash still stuck in his back pocket when the police searched his pants. Does that sound like a robbery?
There are some common misconceptions about Gary Graham's case which need correction:
"Graham 's case has been reviewed over 30 times and no errors were found to prove the state wrongfully convicted him." Flat wrong. Gary went through the initial appeal and writ of habeas corpus process in 1988 with new court-appointed counsel, who had not seen the police report. In 1993, different counsel obtained a copy of the offense report and they and Gary learned for the first time about the crime scene witnesses and other exculpatory evidence that none of the previous appeal lawyers had known. But once the first writ of habeas corpus is denied, one must jump hurdles that are almost impossible to clear on "subsequent writs." When it is stated that the case was "reviewed over 30 times," in reality the last seven years have been consumed with trying to get a court to listen for the first time to the evidence outlined above. The "reviews" for the past seven years all have dealt with whether Gary could present the evidence he did not know about on his initial appeals. The state and federal courts have repeatedly said this evidence was discovered too late, not that it is insufficient to show that Graham is innocent.
Who should pay the price for the blunder of Gary Graham's lawyer? Should Gary pay with his life?
Responsible citizens, including death penalty advocates, should shudder at the thought of an execution based solely on a two-second view of a stranger's face in the dark - especially when there exists compelling evidence that the identification resulting from that glimpse was wrong.
The Board of Pardons and Paroles and Gov. George W. Bush should make good on the governor's assurance that no innocent person will be executed on his watch.
In accordance with Title 17 U.S.C. section 107, this material is distributed without profit or payment to those who have expressed a prior interest in receiving this information for non-profit research and educational purposes only.
[posted 6/17/00]
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