The Washington Post

The Limits of DNA Justice ; Testing is No Substitute for a Fair Trial.

June 16, 2000, Friday, Final Edition SECTION: OP-ED; Pg. A29 By: Edward Lazarus Now that George W. Bush has embraced DNA testing in certain criminal cases by delaying the execution of one of Texas's 460 death-row inmates, the question arises whether Bush's new enthusiasm reflects a genuine concern for rooting out mistakes in the death-penalty process. With Gary Graham--a Texas inmate with a strong but not DNA-verifiable claim of innocence--scheduled for execution on June 21, the public soon will know the answer. The bipartisan DNA-testing bandwagon Bush has jumped onto compounds a popular misunderstanding about DNA evidence. Those on the bandwagon have focused on the results of DNA testing in individual cases--the techno-trick whereby innocence can be conclusively established. Yet Bush and other late-coming champions of DNA 's probative value are suspiciously silent about the deeper implication of DNA testing: that, in aggregate, DNA tests have exposed serious problems in the way capital crimes are investigated and prosecuted, even where the testing itself cannot identify the wrongly convicted. It's hard to argue against using DNA testing where it might establish guilt or innocence. But the universe of cases where DNA testing can provide such magic-bullet results is very small: basically, only rape or rape-murder cases, in which the exchange of genetic material necessarily occurs. The broader value of DNA testing is its ability to pinpoint systemic flaws in how all crimes are solved and prosecuted. Thanks to DNA, we now have a set of cases where we know to a scientific certainty that the state accused and juries convicted the wrong person. This control group allows us to ask the question, "What went wrong?" Analysis of this control group reveals an unsurprising group of systemic weak points. Innocent people get convicted because: Eyewitnesses, especially when coaxed by police, make mistakes; occasionally police officers fabricate evidence; jailhouse snitches lie; overzealous prosecutors hide exculpatory evidence; and defense lawyers sleepwalk through cases. Although these flaws have been exposed by working backward from DNA-generated exonerations, the same factors are potentially present in every criminal case. Thus, the most troubling revelation of DNA testing is the certainty that our prisons contain wrongly convicted defendants in cases where DNA testing cannot be employed to establish innocence. These non-DNA cases pose the true test for politicians such as Bush who express new concern about executing the innocent. Take Gary Graham's case, which currently awaits the governor's action. In 1981, having been accused of a robbery-shooting, Graham was convicted and sentenced to death on the basis of a single eyewitness identification. As is fairly common in Texas, which has no system for providing experienced counsel to indigent defendants in capital cases, trial counsel conducted no investigation. The crucial eyewitness, Bernadine Skillern, presents a textbook case of how innocent people may be targeted as criminals. After interviewing Skillern and learning that the killer had no facial hair and a close-cropped Afro, the police showed her 10 photos of suspects. Only one, Graham's, contained an image with the two identifying features. Even when enticed with this clearly suggestive photo lineup, Skillern balked, telling police that the assailant was darker complected and thinner-faced than Graham, and that she could not say the person in the photo committed the crime. Meanwhile, none of the eight other witnesses identified Graham, and the six witnesses still living all described Graham as much taller than the killer. Also significant: The police firearms examiner found that Graham's gun could not have fired the fatal bullet. The jury that convicted Graham never heard any of this. More remarkably, despite nearly two decades of appeals, and even though his case contains several of the problems that (through DNA testing) we now know may lead to wrongful conviction, Graham has never received a judicial hearing to present the evidence of his innocence. For death-penalty defense lawyers, this is an all-too-familiar scenario. The death-penalty appeals track contains a long series of trapdoors, some well hidden, down which a defendant's claims, even claims of innocence, may irretrievably fall. Consequently, on death row, cases abound where the danger signs identified through DNA point toward the possibility of innocence, but where bad lawyering or judging has deprived the condemned inmate of a meaningful evidentiary review. In most of these cases, DNA testing is useless. The question for Bush is whether he is willing to accept not only DNA testing but also its broader teachings. Providing DNA testing, where appropriate, is relatively cheap and easy. Tackling the problems that create the risk of executing the innocent will be difficult and expensive. But it would be a tragic irony if DNA testing, having shown that innocent people do get convicted, becomes a ploy by which politicians feign concern while ignoring the vast majority of persons with evidence of innocence--those for whom DNA testing is no help at all. The writer, a former federal prosecutor, is legal correspondent for Talk magazine.

A Test for Governor Bush

June 18, 2000, Sunday, Final Edition SECTION: Editorial; Pg. B06 Texas Gov. George W. Bush likes to say that, in overseeing Texas's hyperactive death penalty system, he asks only two questions about the clemency cases that land on his desk: Is there any doubt as to the guilt of the accused? And has the convict had full access to the courts? When Mr. Bush decides this week whether to let a man named Gary Graham be put to death, we will learn something about whether this oft-repeated mantra states real principles or mere words. Because in Mr. Graham's case, there is substantial doubt about whether he committed the murder for which he has been on death row 19 years, and his access to the courts has been indisputably impaired. Mr. Graham was sentenced to death for the 1981 killing in a parking lot of a man named Bobby Lambert. His conviction rested on the testimony of a single eyewitness--a woman named Bernadine Skillern. Ms. Skillern had caught only a fleeting glimpse of the killer's face--at night and through the windshield of her car--yet she told the jury she was certain Mr. Graham was that man. Because of Mr. Graham's inept counsel, however, the jury never learned that she had initially failed to identify him positively from a photo spread--though he was the only man in the spread who, consistent with her description, had no facial hair and a short Afro haircut. Nor did the jury hear that, when she picked him out of a lineup the following day, he was the only man present whose picture had also been in the photo spread. Two other eyewitnesses who testified at trial did not identify Mr. Graham as the killer. And the jury never heard from two other eyewitnesses, who have since filed affidavits denying that Mr. Graham was the man who shot Mr. Lambert. One does not have to suspect Ms. Skillern's truthfulness to wonder if she may be in error. Yet in the maze of appeals this case has seen, no court has ever held a hearing to examine the evidence that has surfaced since Mr. Graham's conviction. The federal courts refused to consider it until the state courts had done so. Texas's courts, however, rejected it summarily. And by then, Congress had radically curtailed death-penalty appeals--so the federal courts refused to step in. The result is that Mr. Graham is at the brink of execution on a record that could well result in acquittal if the case were ever retried. Mr. Bush does not have the power by himself to save Mr. Graham. Under Texas's constitution, he cannot grant clemency without the consent of the Board of Pardons and Paroles. But he can ask publicly that the board help him stop this execution. Mr. Graham presents as clear a case for clemency under Mr. Bush's own stated principles as one could imagine.

In Texas, a Battle Escalates As Execution Draws Near

June 22, 2000, Thursday, Final Edition Section: Pg. A03 By: Paul Duggan , Washington Post Staff Writer As Texas's pardons board prepares to vote Thursday on Gary Graham's petition for a sentence commutation or reprieve, opponents and supporters of his planned lethal injection have escalated their public relations battle over one of the most debated death penalty cases of Gov. George W. Bush's tenure. To his many supporters, Graham is not a murderer but a "victim," an innocent man railroaded into a "killing machine" known as the Texas death penalty system. But to those in favor of his scheduled execution Thursday, Graham is not only a murderer but a remorseless one, a manipulator whose highly publicized campaign for clemency is based on lies and misguided sympathy. After a week of demonstrations here and elsewhere in the country, Graham's supporters said they intend to show up in huge numbers Thursday outside the state penitentiary in Huntsville, 130 miles east of Austin, where Texas carries out its executions. Officials there said security would be exceptionally tight around the prison, where 221 inmates have been put to death since the restoration of capital punishment in 1976, including 134 since Bush took office 5 1/2 years ago. Secluded from the turmoil, the 18 members of Texas's Board of Pardons and Paroles--all Bush appointees--are studying hundreds of pages of legal briefs, police reports and court records filed by prosecutors and Graham's attorneys. Graham, charged with killing a man in a 1981 parking lot robbery in Houston, was convicted based solely on the testimony of a woman who said she glimpsed the shooter's face for a few seconds. In statements videotaped by Graham's current laywers, two witnesses who were not called to testify at the trial said Graham was not the gunman they saw. Graham's attorneys point out that those witnesses have never been heard by a judge or jury. In affidavits filed with Graham's clemency petition, three trial jurors who recently viewed the videotaped statements said they would not have voted to convict Graham if they had heard those witnesses in court. Graham is seeking a commutation of his sentence to life in prison or a four-month reprieve so that the two witnesses can testify before the pardons board. If a majority of the board votes against clemency, it would spare Bush, the presumptive GOP presidential nominee, a difficult political decision, because he would be legally powerless to stop the execution. But if a majority favors clemency, it would be up to Bush to grant or deny it. The board's decision likely will come just hours before Graham's scheduled 6 p.m. (CDT) execution. While Graham's supporters staged demonstrations this week in Austin, New York, Chicago and other cities, anti-death penalty activists dogged Bush at campaign stops in California. At a Los Angeles news conference today, Bush avoided commenting specifically on Graham's case, but reiterated his faith in the Texas death penalty system. "I analyze each case when it comes across my desk," Bush said, in what has become his standard reply to death penalty questions during the presidential campaign. "And as far as I'm concerned, there has not been one innocent person executed since I've been the governor." Texas law allows the governor to issue a one-time, 30-day stay of execution for a condemned prisoner. But Bush's office said he cannot issue a 30-day reprieve for Graham, because Graham was granted a temporary reprieve by then-Gov. Ann Richards (D) on the eve of an execution date in 1993. A court later issued a longer-term stay. Death penalty opponents, noting that the pardons board members were appointed to their $ 80,000-a-year jobs by the governor, said they have focused their protests on Bush because they believe he can influence their vote. Bush's office said he has no such power. Asked about the Graham case today, Vice President Gore, the presumptive Democratic presidential nominee, said that a moratorium on executions would be justified in any state where there have been numerous errors by the criminal justice system in capital cases. Gore, a death penalty supporter, was careful to say he did not not know the situation in Texas, but pointed to Illinois, whose governor has imposed such a moratorium. "In my opinion, any state that finds it has a record comparable to what was found in Illinois, would be justified in having a moratorium," Gore told reporters. Bush has said he does not favor a moratorium on executions in Texas, and he lacks the legal authority to impose one unilaterally. Graham, who was 17 when the killing occurred, has been cast by some supporters as the personification of black victimhood, an innocent young man wrongly caught in a racially skewed death penalty system. The Rev. Jesse Jackson has compared his plight to Jesus being judged by Pontius Pilate. "He asked the mob, 'What do you think?' And he enforced the mob rule," Jackson said this week. "George Bush is asking, 'What do the polls say?' " In the days following the May 13, 1981, slaying, Graham went on a crime binge. He eventually admitted to committing 10 armed stickups in which he shot and seriously wounded two victims, though he has always denied the murder charge. Police said they suspect he carried out at least 22 robberies. But the jury in his trial heard about those crimes only during the penalty phase, not during testimony preceding the guilty verdict. Jackson described those crimes as "heinous youthful indiscretions" that in no way suggest that Graham also committed the parking lot killing. Proponents of the execution, including Texas Attorney General John Cornyn, a Republican and Bush political ally, also have been spinning the facts in their favor. Taking an unusually public role in the case this week, Cornyn repeatedly asserted in nationally televised interviews that the two witnesses cited in Graham's clemency petition have already told their stories in court. But neither of the two witnesses has testified in court. By the time Graham's appellate lawyers found them and obtained their affidavits in the mid-1990s, appeals courts were barred by Texas and federal laws from considering their testimony because too much time had passed since Graham's 1981 trial. Staff writer Ceci Connolly contributed to this report.

Theater of Character

June 23, 2000, Friday, Final Edition SECTION: OP-ED; Pg. A31 By: Marjorie Williams "Two Men, Fates Linked," ran the New York Times headline on a Wednesday article about George W. Bush's then-pending role in the scheduled execution of Texas inmate Gary Graham. Bush faced a decision about whether he could or should grant a 30-day reprieve of Graham's lethal injection in light of serious doubts about the fairness of his trial, including statements by three jurors that had they heard the testimony of witnesses who have since surfaced, they would not have voted to convict. But the facts of Graham's case were covered in a second Times article. What was on the mind of this piece, labeled "News Analysis," was the far more cynical question of how Bush should frame whatever action he took. Bush, wrote Times correspondent Frank Bruni, now "faces a second, amplified challenge." (Beyond, that is, the challenge of deciding whether or not to kill a possibly innocent man.) "It is to demonstrate, through the tone of his voice and the set of his jaw, that he feels the full weight of his responsibility. And it is to show, through his bearing and his choice of words, that he comes by his steadfast position in support of the death penalty after extensive soul-searching and careful thought." Note that this is not an examination of whether Bush does feel the weight of his responsibility, or whether he has searched his soul; it is a piece about whether Bush can so position himself as to be seen to have felt and searched. It may be unfair to pick on Bruni's piece, which because of the grim subject matter is only a particularly stark example of a kind of journalism that almost all major media are practicing. It's the coverage of political character as theater: a malign bastard sired by the horse-race school of political reporting from the legitimate form of journalism that examines character itself. This seam in our political narrative is, of course, part of a larger trend toward meta-coverage of campaigns, in which the choice of pollster or the sagacity of the ad buy is weighed at least as seriously as the plan for restructuring Social Security. But perhaps we can put a collective finger in this one hole in the dike: the substitution of appearance for reality when it comes to personal character. Al Gore's primary campaign, for example, was widely covered in part as the story of his miraculous reinvention as the Nashville-based, earth-tones-wearing neo-populist. No one actually believed that Gore had undergone a personal transformation, but his willingness to stage one was still received--even by reporters who joked about the clothes--as a sign of a muscular new chapter in his campaign. And so a limited series of politically deft acts was reported as if it were a reasonable approximation of Al Gore having actually changed something about himself. Part of his current problem, the same sages say, is that this avenue is now blocked to him: Sorry, pal, only one fictive transformation to a customer. John McCain, too, came in for his share of cosmetic/characterological advice: Was he too angry to be president? (A legitimate question.) Would he be able to show, or at least to seem to show, that he wasn't? (In the end, the reviewers ruled that he had.) This kind of analysis, always dressed up in the trappings of neutrality, is essentially a manifesto from the judges of a sporting event, set forth to tell the contestants exactly where we are setting the bar this year: whether we will be grading more, this time out, for technical perfection or degree of difficulty--or tone of voice or set of jaw. In most of these cases, the analyst is touching on a genuine character issue. It does mean something that Bush has in the past so lightly dismissed the possibility that any of the 134 executions that have taken place on his watch might have been flawed by incompetent counsel or any of the other judicial nightmares that can send an innocent person to death row. And it's legitimately disturbing that, according to Tucker Carlson of Talk magazine, Bush mocked the pleas for mercy of one of the people Texas put to death. But the Times analysis, for all its air of judiciousness, does nothing to advance the reader's assessment of what genuine gravity Bush has brought to his involvement in capital sentences. In Gore's case, the theater of character also masks a legitimate issue, which is the vice president's profound love-hate relationship with politics. The real question about Gore's slashing style, his apparent willingness to do or say anything, is not whether he can "shake this image," as we like to say, by Election Day; it is why he has manufactured a political self who seems so unrelated to the better parts of his character, and what this would mean to his presidency. In McCain's case, the real task should have been to explore whether he really was a powder keg, and why. But it is much harder to address those questions fairly than it is to handicap how much we in the political echo chamber feel like caring about them on a particular day.

The Graham Execution

June 24, 2000, Saturday, Final Edition SECTION: EDITORIAL; Pg. A22 TEXAS GOV. George W. Bush brushed aside questions about his refusal to prevent the execution of Gary Graham, saying, "If it costs me politically, it costs me politically." The execution of Mr. Graham Thursday evening ought to cost Mr. Bush--and dearly. We don't purport to know whether Mr. Graham was innocent of the 1981 slaying of Bobby Lambert in a Houston parking lot. The evidence is contradictory, with one credible eyewitness certain of his guilt and two others--not called to testify at Mr. Graham's trial--certain of his innocence. Anyone who claims in the face of such a record to know definitively is making a leap of faith. Executions should not proceed on faith. Mr. Bush did not have the power to commute Mr. Graham's sentence by himself. The Board of Pardons and Paroles would have had to vote to commute Mr. Graham's sentence. But Mr. Bush appointed the members of that board and bears some responsibility for their recklessness. More important, he could have spoken up and encouraged the board to recommend clemency. Instead, he did nothing and then said that he was "confident that justice is being done." Mr. Bush has often said that in evaluating clemency petitions, he considers whether there is a question of innocence and whether the accused has had full access to the courts. In Mr. Graham's case, no court weighed the evidence that had arisen since his conviction and that cast considerable doubt on his guilt. Yet neither the real possibility of innocence nor Mr. Graham's impaired access to the courts moved the governor. Mr. Bush says he is certain that no innocent man has been executed in Texas. In all likelihood, nobody will ever be able to prove him wrong about Mr. Graham. There is no DNA evidence to test, after all. But that does not change the fact that Mr. Bush this week displayed a blithe disregard for human life.