Gary Graham is staring death in the face.
After years of appeals and legal machinations, the convicted murderer will die Thursday in a Huntsville, Texas, execution chamber. Graham, 36, was found guilty of a 1981 murder, and has spent the interim period denying his guilt. While no one involved in this case harbors any illusions that Graham is a saint (he has confessed to multiple charges of robbery and aggravated assault), there is a growing sense that he may not be guilty of this particular crime.
In a decision met by angry cries and shouts from protesters gathered outside the Huntsville jail, Texas's board of appeals announced Thursday afternoon that they would not grant Graham a stay of execution. Graham, who has refused food since his transfer to Huntsville Wednesday, must know he's pretty much doomed at this point; unless the Supreme Court makes an extremely uncharacteristic move and stops the execution on the basis of a procedural question, he'll die tonight. Outside the prison, Jesse Jackson and other supporters are likely to continue their protests and prayers well into the evening.
Graham's lawyers continue to argue he was denied fair process during his trial; their ongoing investigation has, in fact, yielded serious questions. Why, for example, didn't Graham's court-appointed defense lawyer seek out eyewitnesses to counter claims that Graham was the man at the scene of the crime? While the details of Graham's predicament may be relegated to a footnote in criminal law texts by the time most Texans go to bed tonight, the larger questions surrounding his case could have lasting legal effects; it has ruffled feathers and raised a few hackles not only in Texas, but nationwide:
The legal perspective:
Graham was convicted largely on the strength of one eyewitness's testimony. That witness holds fiercely to her story: She saw Graham at the murder scene. Two other eyewitnesses, who emerged after the trial, apparently took a look at a lineup that included Graham and told police, "He's not in there." Many defense lawyers maintain that a single eyewitness's testimony should not be enough to convict on a capital charge: Several lawyers called on to pontificate over Graham's fate brought up the recent case of a rape victim who positively identified her attacker and was absolutely sure of his identity. The alleged rapist was sentenced to life in prison and was later was exonerated using DNA evidence. This kind of miscarriage speaks to psychological difficulties inherent in eyewitness accounts; if you're involved in a case (either directly or indirectly), you're understandably emotionally invested in seeing someone pay for the crime.
The political perspective:
Governor George W. Bush, who has been buffeted by considerable media scrutiny and activist fury over this case, has been busying himself with official pursuits this afternoon, apparently hoping to avoid any last-minute theatrics from death penalty opponents. In the days leading up to the execution, Bush has consistently portrayed himself as "powerless" to stop Graham's death. In fact, according to some legal analysts, Bush's determination not to grant Graham a 60-day reprieve is largely based on the governor's personal interpretation of Texas law. The statute in question allows a governor to grant a one-time reprieve; Graham received one such reprieve from Ann Richards in 1993, and seven years later, Bush has chosen to emphasize the "one-time" aspect of the law rather than the possibility that a different governor may have his or her own "one-time" crack at a case.
In all fairness, Bush appears not to have remained totally unmoved by Graham's case. The scuttlebutt among reporters tracking the governor is that he's become far more thoughtful, even pensive, in recent days. "The death penalty is a subject that needs to be debated in America, and cases come along that spark the debate," Bush told reporters Wednesday. To death penalty opponents, that may not sound like much progress, but at the very least, it's a far cry from the sometimes glib and dismissive Bush who has officiated so resolutely over 131 executions during his five-year term. The real test for Bush will come in a week, a month or even a year: When he's next asked if any innocent person has been executed on his watch, will he hesitate before he answers?