TDCJ Number

696

Address

Death Row – Huntsville & Livingston, Texas/deceased

Date of birth

September 5, 1963

Race

Black

Date of crime

May 13, 1981

Age at time of crime

17

Date sentenced

1981

Victims

Bobby Lambert

Race of victims

White male

Victim Relationship to defendant

No relationship

Facts alleged by state

· Gary Graham was arrested in May 1981, after a weeklong crime spree.

· A 57-year-old white woman who told police that Gary had raped her at gunpoint turned him in

· Charged with aggravated robbery and capital murder of a white man who had been robbed and murdered in a dimly lit grocery store parking lot in Houston

· Not charged with rape

· He pleaded guilty to 10 counts of aggravated robbery, but always maintained his innocence of the murder

· The only evidence used to convict Gary was the testimony of a single eyewitness who saw the perpetrator for 2 to 3 seconds in the dark. This eyewitness, Bernadine Skillern, helped police make a sketch of the shooter. She picked Gary out of a live line-up having seen his picture in a photo spread the day before. Gary was the only person in the photo spread and live line-up to match the general characteristics of the shooter.

· All the eyewitnesses agreed the shooter was a clean-shaven black male with a short, compact afro wearing a white jacket and dark slacks. They all agreed the shooter resembled the police sketch, which bore little resemblance to Gary Graham.

· Graham was arrested with a .22 caliber handgun.

· The victim was killed with a .22 caliber handgun, but Houston police stated unequivocally that Graham’s gun was NOT the murder weapon. The jury never heard this ballistics evidence or the other eyewitnesses.

· In the penalty phase of the trial, Graham’s other crime victims testified against him.

County where tried

Harris County

Trial judge

Judge Travathian

Trial attorney

Ron Mock

Prosecutors

Johnny Holmes Office

Trial by

Jury

Race of jurors

11 white, one Black

Convicted of

Capital murder

Confession

No confession. Gary always maintained his innocence.

Accomplice testimony

No accomplice.

Eyewitness testimony

One eyewitness identifies Gary. Her identification process was tainted. Six other eyewitnesses fail to identify him.

Forensic testimony

The victim was killed with a .22 caliber handgun. Ballistics proved Gary’s gun was NOT the murder weapon. No other physical evidence linked Gary to the crime.

Jailhouse snitch

No jailhouse snitch.

Defendant testimony

Gary did not testify, although he always said he wanted to testify.

Principal exculpatory evidence

· No physical evidence linked Graham to the crime.

· Six eyewitnesses swear Graham was not the killer.

· The police did not follow up three very promising leads after Graham was arrested.

· The eyewitness identification process used with Bernadine Skillern was tainted.

· The guilt phase of the trial lasted less than two days. Graham’s attorney put on no defense and did no investigation. He virtually did no cross-examination of Bernadine Skillern and even suggested to the jury that his client was the murderer.

· The murder weapon did not match Graham’s gun; the jury never heard this information.

· The jury never heard from eyewitnesses Ron Hubbard and Sherian Etuk who said Graham was not the shooter. Eyewitnesses Ron Hubbard, Sherian Etuk and Wilma Amos told police the shooter was 5’ 3" to 5’ 5".

· Mock failed to ask eyewitnesses Daniel Grady or Wilma Amos, who did testify at trial, if Graham was the shooter.

· Four alibi witnesses never testified nor were even interviewed by defense counsel.

Sentencing authority

Jury

Statutory aggravating factor

10 aggravated robberies; two victims were shot and wounded during the robbery.

Non-statutory factors in aggravation

Although never charged with rape, the judge allowed the jury to hear the testimony of the woman who said Gary raped her.

Mitigating factors

Gary was 17 when he was arrested. He grew up in poverty with a mentally ill mother and a father with a drinking problem.

Mental illness, retardation or neurological damage

None.

Criminal history

Armed robbery when he was a juvenile.

Appellate history

· case was presented to all the appropriate state and federal courts, including the U.S. Supreme Court.

· Case was summarily denied on procedural technicalities and time bar rules in every court.

· Graham had one evidentiary hearing in 1988 where two alibi witnesses were heard. These witnesses were deemed non-credible by the judge.

· The compelling evidence of other eyewitnesses who said Graham was not the killer was discovered in 1993. The 1988 hearing was the only evidentiary hearing Graham ever had.

· In 1995, the 5^th Circuit Court of Appeals said there was merit to Graham’s case, but would not rule because Graham had not exhausted his state appeals.

· In 1996, the Texas Court of Criminal Appeals rejected the case on technical grounds without addressing the merits.

· When the case was sent back to the 5^th Circuit, the court now refused to review it because of the 1996 Anti-terrorism and Death Penalty Act that stated that new evidence would not be considered if it could have been discovered at the time of trial.

· Graham’s case was NEVER reviewed on the merits by any court or judge.

Ineffective Assistance of Counsel

Yes-failure to call other eyewitnesses or alibi witnesses to testify, no investigation, failure to cross examine one eyewitness adequately

Police Misconduct

· They showed Bernadine Skillern a photo array 13 days after the murder.

· The only suspect in the photo spread to resemble the general characteristics of the murderer – a clean, black male with a compact afro – was Gary Graham.

· The other four men in the photo spread had long hair or facial hair or both. Skillern could not identify Graham from the photo spread, but did tell police that the photo of Graham resembled the suspect, but the person she saw had a "thinner face and a darker complexion."

· The following day, Skillern viewed a live line-up.

· Again, Graham was the only person to meet the general characteristics of the shooter.

· She picked out Graham from the line up, telling police she recognized him from the photo spread the day before.

· The police told her that he was their suspect too.

Was prosecutorial misconduct an issue?

· The prosecutor waved Graham’s .22 caliber pistol in front of the jury giving the false impression that Graham’s gun was the murder weapon.

· During the appellate process, the prosecutor’s office failed to turn over discovery material to the appellate attorneys in a timely manner which prevented them from arguing key issues in their appeals.

· The Harris County District Attorney stated on national television that 33 courts had reviewed the merits of the case and found that the other eyewitnesses were not credible. This was not true.

Appellate counsel

Richard Burr, Jack Zimmermann, Mandy Welch, Doug O’Brien and the now defunct Texas Resource Center.