June 22, 2000
The Texas pardons board voted Thursday to allow the execution of convicted murderer Gary Graham despite questions regarding the quality of Graham's defense during his trial. After a background report, legal experts discuss the case.
|MARGARET WARNER: Now four perspectives on the Graham case and the issue of competent and incompetent counsel in death penalty cases. Jordan Steiker, Professor of Constitutional and Criminal Justice Law at the University of Texas Law School and co-director of the school's Capital Punishment Law Clinic. He worked with Gary Graham's attorneys in the early stages of his appeal. Morgan Reynolds, director of the Criminal Justice Center at the National Center for Policy Analysis, a conservative research institute in Dallas. Bryan Stevenson, a longtime activist on behalf of Death Row inmates. He's director of the Equal Justice Initiative of Alabama, which promotes racial and economic equality in the judicial system. And Paul Cassell, a professor of law at the University of Utah. He has written and lectured extensively on criminal justice reform and the rights of crime victims.|
|Competence of defense questioned|
Steiker, as we talk now, unless the Supreme Court intervenes, Gary Graham will
be put to death tonight. You don't believe that's just. Why? |
JORDAN STEIKER, University of Texas School of Law: I think that this case has a tremendous... It puts a tremendous burden on the criminal justice system because it turns out that at trial Graham did not receive the kind of adversarial representation that would make us confident about the outcome. And evidence has surfaced after the trial, which was available at trial, that should have been presented. That evidence calls into doubt the accuracy of the verdict and it seems very troublesome to go ahead with an execution with as many doubts as there are about its accuracy.
MARGARET WARNER: What specifically would you point to that makes you think he didn't get competent defense?
JORDAN STEIKER: Well, there are a number of things. First, the lynchpin to the state's case was the one eyewitness who claims to have seen Graham at the time of the crime. That eyewitness was put through a very suggestive procedure in which Graham was the only one in the photographic lineup that had the quality that many of the witnesses had testified about, that it was a clean-shaven person; he was the only clean-shaven person in that array. And then later when the witness identified Graham at, you know, in a real lineup, in a face-to-face lineup, she had seen Graham before in that photographic array. That's very troublesome because it seems as though there are reasons that she might have picked Graham apart from having seen him at the crime.
But apart from that witness, there were other witnesses who saw the crime. None of those witnesses appeared before the jury, and a number of other things were not put before the jury. The fact that the gun that Graham was... had on his person at the time of his arrest was not the murder weapon is important physical evidence that also was not before the jury. This was simply not an adversarial case. His counsel did not mount an effective defense and many of the jurors now who hear of this evidence say quite confidently that they would not have voted for a conviction and they would not have voted for a death sentence.
MARGARET WARNER: Morgan Reynolds, do you think all of casts on the quality of the defense that Gary Graham had?
MORGAN REYNOLDS, National Center for Policy Analysis: No, I don't, really, because of course that's a standard appeal claim and it's not been upheld in 36 judicial and executive forums. What the defense was confronted with was the usual problem, and that is, they had nothing to work with. They didn't put on any defense witnesses because, if you do, that opens up wide avenues for the prosecution under cross-examination to introduce other evidence. So the best tactic really is to try to undermine the testimony of prosecution witnesses and raise a reasonable doubt somewhere. Beyond that, of course, we've got basically overwhelming evidence about Mr. Graham's guilt subsequently in terms of he's never, in 19 years, been able to raise any compelling evidence to the contrary. Even on June 9th, he wouldn't take a polygraph, which is for a defense attorney kind of surprising. Here the guy is near the end, and he's not even willing to take a lie detection test, which may or may not have any validity, but the point is it shows you how they have no compelling evidence.
MARGARET WARNER: But let me go back to this issue of whether he had a competent defense. Explain why you said usually a defense attorney would try to challenge the witnesses, the prosecution witnesses. Why wouldn't a trial defense attorney put on two eyewitnesses who say they're ready to contradict the prosecution's one?
MORGAN REYNOLDS: They weren't willing to say that at the time. It was six years later, after the trial, that they changed their story. Their stories simply... you can talk about them in the media or other forums but in courts of law they're easily demolished. So this is just people changing their mind long after the event. They're not credible. They're not credible witnesses.
MARGARET WARNER: Mr. Steiker, let me go back to Mr. Steiker on a couple of points you raised, Mr. Reynolds. Isn't it hard this far down the road after a trial to second-guess a trial attorney's, a defense attorney's decisions in the course of a trial?
JORDAN STEIKER: I think it's always hard to second-guess strategic decisions. There's no evidence that these decisions by Ron Mock were strategic. He simply had not done the kind of investigation that would put him in a position to make strategic decisions. He wasn't aware of the circumstances of the identification and he didn't raise those issues at trial when the one eyewitness against Graham was on the stand. This is not a case of strategic decision-making.
MARGARET WARNER: Is he an experienced... he is an experienced death penalty or criminal defense lawyer, is he not?
JORDAN STEIKER: He's quite experienced. Much of Death Row is filled with his former clients.
MORGAN REYNOLDS: Please note there were two co-counsels defending Gary Graham. Chester Thornton was the other one. It was just not Ron Mock, but only Ron Mock has been attacked systematically apparently because they believe he's the more vulnerable attorney.
MARGARET WARNER: Let me turn to you, Bryan Stevenson. How typical is it in death penalty cases to at least have the suggestion that the defendant did not get a vigorous defense?
BRYAN STEVENSON, Equal Justice Initiative: It's very common. We've just seen a study released last week that shows that in nearly two-thirds of the cases where the death penalty has been imposed, the cases were reversed. The single most common cause of reversal was ineffective lawyering, but I think it's important to focus on the facts surrounding Mr. Mock's representation. This was not just a lawyer trying to figure out what's the best thing to do. This man was three years out of law school when he represented Gary Graham. He has been repeatedly sanctioned and disciplined by the Texas State Bar. He was even jailed once for failing to meet his professional obligations. He brags about having more people on Death Row than any other defense lawyer. He brags about failing criminal defense law. When you have that kind of advocacy in these cases, there is going to be unreliability. Of the 131 people executed in the State of Texas, nearly a third of the lawyers in those cases have been subsequently disbarred, suspended or disciplined for poor lawyering. That creates the questions and the doubts that we're seeing here.
MARGARET WARNER: Paul Cassell, that does not sound like the kind of lawyer I would want if I were in a capital case, someone with that kind of record.
PAUL CASSELL, University of Utah Law School: Remember, there were two lawyers here. And it's easy to make allegations about these sorts of things after the fact. One of the facts that hasn't been talked about tonight is that Gary Graham is a confessed killer. He told a number of his victims that he was going to shoot them as he shot other people. He told the bailiff right after he was sentenced to death that next time he would not leave any witnesses. So that's one important fact. Another important fact is that he pled guilty to a crime spree surrounding this particular affair. I think one of the speakers you had in your opening segment said this gentleman who has never committed any crime at all, in fact he pled guilty to a string of armed robberies right around this time. So he's a very, very serious offender. The most important point is that we have in place in Texas and other states a process to look at these claims. We've heard tonight some claims that I think the evidence doesn't support. But the Texas Board of Pardons and Parole looked very carefully at all this evidence, and you've heard their decision.
|Graham's access to the legal system|
WARNER: Do you think though that there is or is not a larger problem, particularly
indigent defendants in capital cases do not get top legal representation -- as
Mr. Stevenson suggested? |
PAUL CASSELL: Well, a number of states have put in place devices to make sure they get good representation. Two lawyers, for example, is the norm in Texas cases and in many other case, there was also very skilled, separate appellate counsel. And remember, all the claims that Gary Graham did not get adequate representation were carefully reviewed by courts of appeal. Those courts concluded that those claims were not accurate, that Gary Graham did receive a fair trial, that Gary Graham was guilty.
MARGARET WARNER: What about that, Mr. Stevenson?
BRYAN STEVENSON: Well, I don't think anybody familiar with our system of justice would dispute that we have a system of justice in America, a criminal justice system that treats you much better if you're rich and guilty than poor and innocent. There are some three thousand, seven hundred people on Death Row today. Hundreds of them have no legal representation right now to present their claims to courts. It is easy to make allegations when you see lawyers as poorly prepared to defend their clients as Mr. Mock was at his trial. But it's also easy to deal with these problems. And I don't know why a state like Texas or a country like ours would hesitate to make the kinds of improvements that are possible, that are doable, that we can accomplish very quickly to improve defense services in these cases if we're going to commit ourselves to continuing to carry out these executions. It's just not that difficult a problem to solve if we're really committed to ensuring fairness and reliability. And, unfortunately, we're too often committed to carrying out these executions as fast as possible. We push fairness and reliability to the side.
MARGARET WARNER: Jordan Steiker, let me ask you one additional question about the Gary Graham case. What about the point that he has had 19 years' worth of appeals - why -- was all of this presented to higher courts and if not, why not?
JORDAN STEIKER: Well, some of it was presented to higher courts and some of it was reviewed and some of it wasn't reviewed. But I think the bottom line is there's tremendous evidence that wasn't presented at trial. There's reason to believe that there was no effective defense mounted at trial, and under those circumstances, it seems reasonable to the court of criminal appeals for the fifth circuit to order a new trial so that we can be confident about its outcome. I was involved in some of the 19 years of litigation. Some of the issues being litigated were highly technical. And the technicalities were offered by the state. The state was arguing earlier in this case the fact that the Texas statute didn't allow the jury to give Graham a lesser sentence on the basis of his youth shouldn't be able to be raised because it was an issue that would have established new constitutional law. That's the sort of thing that was going on during the 19 years. It wasn't as though a careful review of the facts of this case ever came forward.
|Can competent counsel be guaranteed?|
WARNER: All right. I'd like to go back to a broader question that was raised just
a minute ago by Mr. Stevenson. I'll start with you, Mr. Reynolds. Do you think
we should somehow ensure that defendants in capital cases, where the death penalty
is a possibility, absolutely,
positively get excellent legal counsel from the outset? |
MORGAN REYNOLDS: Well, that would be nice to have a law or constitutional provisions that we had the best of everything all the time. It's just totally unrealistic. What is a lower bar and quite relevant is that they have competent counsel, competent legal representation. There's no way to legislate and guarantee the best of the best for every capital murder defendant.
MARGARET WARNER: All right. And, Mr. Stevenson, you made the suggestion, what would you suggest specifically?
BRYAN STEVENSON: Well, I mean, we could restore funding for the resource centers that were providing legal representation to Death Row prisoners in this country until 1995; Congress eliminated that funding in 1995 and many of them closed. We could ensure that the ABA standards for criminal defense representation were enforced in the states that have the death penalty. We could increase the rates of compensation so that in the states like Alabama and Mississippi, you're not being paid $1,000 or $2,000 a case. And we could commit ourselves to never executing someone in a case, in a situation like this one where it's clear to virtually everybody familiar with the facts of this case, if Mr. Graham were given a new trial and provided adequate representation, it is highly unlikely that he would be convicted of capital murder and certainly that he would be sentenced to death. To execute somebody with that certainty or with those facts around us is what we ought to avoid ever being in a situation.
MARGARET WARNER: Paul Cassell, do you think the record not just in this case but in the recent reviews of death penalty cases suggest something has to be on this question of the effectiveness of legal counsel for such defendants?
PAUL CASSELL: A number of states have already acted to make sure that Death Row inmates certainly on the appeals process and at trial as well get very excellent representation. That's where I think we have to look at the facts. We've just heard the suggestion that there is grave doubt whether Gary Graham would get a death sentence again. A number of courts have looked at that question. The Texas Board of Pardons and Parole has looked at that question; they disagree. It's easy for defense attorneys to throw something out. There's a process for reviewing these claims. The process has worked in this case.
MARGARET WARNER: So are you saying you don't think errors are commonly made in these cases due to incompetent legal counsel?
PAUL CASSELL: No, they're not. In fact, the key point is this: The study that Mr. Stevenson cited was unable to cite even a single case of an innocent person who has been executed in this country. We have in place a very, very careful system. That's why there are a number of reversals in capital cases. We give the defendants the benefit of every doubt. But at some point, the system has to call delays to an end. We have to think about the victims in this case. We have to think about the finality of the system. It's been 19 years, and the system I think has given Gary Graham every benefit of the doubt.
MARGARET WARNER: All right, gentlemen. Thank you all four very much.