The Trial

Graham’s trial began in October of 1981 in Harris County, Texas. In Texas, a defendant convicted of murder can be punished by death if the murder is found to have been committed under certain circumstances spelled out in the Texas Penal Code, such as the murder of a police officer or firefighter, that the defendant murdered two or more victims, that the defendant committed a murder for hire, or that the murder was intentionally committed in the course of a kidnapping, burglary, robbery, aggravated rape or other statutorily specified felony. The subclass of murders falling into these categories are called "capital murders."

Gary Graham was charged with capital murder with the aggravating circumstance of robbery.

Capital trials are different from murder trials in which the defendant is not eligible for the death penalty in several ways. First, jury selection in capital cases requires that prospective jurors be "death qualified," i.e., questioned about their ability to consider both aggravating and mitigating evidence and to render a death sentence in an appropriate case. After the jury is chosen, the government has the burden of proving the defendant’s guilt beyond a reasonable doubt and offers evidence to convince the jury that the defendant committed the offense. In response, the defendant offers evidence to rebut the prosecution’s evidence. Although the defendant has no burden of proof and is presumed innocent until proven otherwise, he or she may introduce evidence to weaken the prosecution’s case or to help establish innocence.

The Defense Attorneys

Graham’s case was tried in Harris County, Texas. Like many counties in Texas, Harris County had no public defender system. Instead, judges appointed private lawyers for defendants who could not afford to hire an attorney to represent them. Gary Graham’s appointed lawyer was Ron Mock, a lawyer who had been appointed to defend nearly 10 percent of the capital cases in Harris County in the three years before the Graham case. Mock was reportedly popular with Harris County judges, some of whom noted the strong rapport he established with his clients. According to other lawyers, another reason Mock was frequently appointed was that he was black, and with few African-American lawyers practicing criminal defense law in Houston in the 1980’s, judges were interested in promoting whatever diversity they could. In addition to being an attorney, Mock owned Buster’s Drinkery, a popular bar where judges and lawyers often gathered.

Graham’s other lawyer was Chester Thornton. Thornton had previously represented Graham when Graham was a juvenile defendant and was asked by Graham’s family to serve on his legal team.

The Prosecuting Attorney

The District Attorney in Harris County at the time of Gary Graham’s trial was Johnny Holmes. Holmes was known for his proclivity to seek the death penalty in every case that was death eligible —a practice that made Harris County a leader in death sentences across the country. In his 20 years as District Attorney, Holmes’s office took between 12 and 20 capital cases to trial each year and secured more than 200 death verdicts. Ten percent of those executed in the United States in the modern death penalty era came from Harris County.

Trial: Guilt/Innocence Phase

The Prosecution’s Case

Prosecutors based their case mainly on the eyewitness testimony of Bernadine Skillern. Two other eyewitnesses called by the state, Wilma Amos and Daniel Grady, testified that they did not get a good enough look at the assailant’s face to make a positive identification. However, they testified that it was possible that Graham, who met their general descriptions of the perpetrator, could have been the assailant.

Skillern testified that she identified Graham in a May 26 photo display and in a May 27 police station live lineup. She then identified him in court.

The Defense Case

Judge Richard Trevathan conducted a pre-trial hearing to determine whether or not Skillern’s identification of Graham was the result of suggestive police procedures during the lineup. According to the defense, Skillern gave a general description of the assailant before being shown the photo spread and Graham’s photo was the only one in the spread that matched her general description. Furthermore, Graham was the only suspect in both the photo array and the actual lineup. Defense lawyers argued that Skillern was more likely to choose the person in the lineup who matched the photo that she had already chosen.

Judge Trevathan concluded that Skillern’s identification of Graham at trial was “based solely on [her] independent recollection of the facts as they occurred on May 13, 1981,” and was “made independently of any conversation or processes that were performed by members of the Houston Police Department.” He therefore allowed her to testify.

During the trial, the defense counsel emphasized the failure of the other witnesses to identify Graham and argued that the evidence failed to prove that Graham was the perpetrator.

The defense rested its guilt phase defense without presenting any evidence or calling any defense witnesses. The trial on guilt lasted two days.

The Verdict

The jury voted 12-0 for guilt.

The Trial: Penalty Phase

After Gary Graham was found guilty of murder, an additional hearing was held before the same jury to determine whether he would be sentenced to death or life in prison. In most States, at this kind of “penalty trial” (as it is often called) the jury makes its choice between death and life imprisonment by deciding whether the case involves certain statutorily specified “aggravating circumstances” (facts that make the crime more culpable or make the defendant more deserving of death) and whether it involves any “mitigating circumstances” (facts that extenuate the crime or make the defendant less culpable) and, finally, whether the aggravating circumstances or the mitigating circumstances are weightier. But the Texas capital sentencing procedure is somewhat different.

Under the Texas statute, the jury first decides, at the guilt/innocence stage of the trial, not only whether the defendant is guilty of murder but whether the circumstances of the crime come within one of the categories of “capital murder” that make the defendant eligible for a possible death sentence. If so, then at the penalty stage, the jury is instructed to answer three questions (called “special issues” in Texas practice):

(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result;

(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and

(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased.

If the jury unanimously answers “yes” to all three questions, the judge is required to sentence the defendant to death. The second question, involving the defendant’s “future dangerousness,” is the key question. Sometimes the prosecution calls psychiatrists as expert witnesses to testify with apparent certainty that the defendant will commit violent crimes in the future, even if incarcerated. Such compelling and seemingly authoritative testimony makes it difficult for jurors to consider typical mitigating factors like the defendant’s youth, mental disabilities, or childhood abuse. Often the prosecution relies on the brutality of the murder for which the defendant is being sentenced, the defendant’s previous criminal record, or both, to establish “future dangerousness.” The Texas courts have held that jurors can rest a prediction of a defendant’s future dangerousness on one or the other of these bases alone or on both together.

Reasons For Sentencing Graham to Death

The prosecution identified Graham’s criminal history and the excessive violence of his other crimes as reasons for sentencing him to death.

By age fifteen, Graham had a juvenile record for thefts and unauthorized use of motor vehicles, had dropped out of school with only a seventh grade education, and had fathered two children.

The state presented evidence that between May 13 and May 20, 1981, Graham robbed thirteen different victims at nine different locations, in each instance using either a pistol or a sawed-off shotgun. Two of the victims were pistol-whipped and one was shot in the neck; a 64-year-old male victim was struck with the vehicle Graham was stealing from him; and a 57-year-old female victim (Lisa Blackburn) was kidnapped and raped.

The state also presented testimony that Graham had a bad reputation for being a troublemaker in the community.

Reasons for Sparing Graham's Life

The defense called Graham’s stepfather and grandmother, who testified about Graham’s difficult childhood, his good character, and his general non-violent nature. His stepfather, Joe Samby, testified that Graham, who lived and worked with his natural father, typically visited his mother once or twice a week and was a "real nice, respectable" person who pitched in on family chores and did his best to raise his two young children.

Graham's grandmother, Emma Chron, testified that Graham had lived with her off-and-on throughout his childhood because his mother had been hospitalized periodically for a mental illness. She had never known Graham to be violent or disrespectful, he attended church regularly while growing up, and "[h]e loved the Lord."

In closing arguments to the jury, defense counsel characterized Graham's behavior during his crime spree as an aberration and urged the jury to take Graham's youth into account in deciding their answers to the three questions.

The Verdict

After hearing the sentencing phase testimony, jurors were referred to the three questions they were required to answer to determine Graham’s sentence. The jury unanimously answered “yes” to each of the questions, and the court, as required by the statute, sentenced Graham to death.

Next: Post-Trial Period