The hanging governor

Did execution-happy George W. Bush sign off on the lethal injection of an innocent man?

Published May 11, 2000 4:00PM (EDT)

On June 22, 36-year-old Gary Graham, who has been on Texas' death row for more than half his life, is scheduled to be executed. If all goes according to plan, Graham, who now goes by the name of Shaka Sankofa, will become the 22nd person put to death in Texas this year, and the 135th since George W. Bush became governor. Although Texas executions have become fairly routine -- 13 are scheduled for May and June alone -- the execution of Graham is certain to prove notable.

You wouldn't expect Graham to evoke much sympathy from the governor - or many people, for that matter. As a teenage thug, Graham went on a weeklong rampage of 22 robberies and assaults. He was found passed out, drunk and naked, in the bed of a 57-year-old taxi driver who accused him of raping her, at which point he was arrested for the murder of Bobby Lambert. Today Graham, who has been taken to the Texas death chamber on three previous dates, insists he will "fight like hell" and "physically resist" efforts to kill him, and he has called on his supporters to "take up arms to defend our rights by any means necessary."

Given Bush's near-perfect record of spurning clemency requests in capital cases (he's granted it just once), Graham's anticipated appeal would appear a certain nonstarter. In 1998, Bush denied clemency to Karla Faye Tucker, the cute, white, born-again Christian, despite appeals from the pope and Pat Robertson. In February he signed off on the execution of Betty Lou Beets, a 62-year-old great-grandmother, despite evidence that strongly suggests her own attorney -- who secured literary and movie rights to her story, and later served a three-year federal prison sentence for extorting a bribe in another murder case -- gave her miserable representation.

Nevertheless, Graham's case is likely to prove problematic for the governor because the condemned man, unlike Tucker, claims he is innocent. A lot of people believe him. Graham's attorneys will argue that his conviction was based entirely on the testimony of a single witness who picked Graham out of a lineup after first being shown a photograph of Graham by police.

Graham's case also resurrects the unpleasant question of whether Bush, in his unstinting embrace of Texas-style justice, has tolerated the execution of innocent people. That question has come up with increasing regularity since January, when Bush's Illinois campaign chairman, Gov. George Ryan, announced a moratorium on executions in his state because 13 innocent people had been discovered on the state's death row since 1977 (more people than Illinois executed during the same period). A supporter of the death penalty, Ryan said, "I cannot support a system which, in its administration, has proven so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life." For Ryan, 13 innocents was too many.

Shortly after Ryan's announcement, Bush dismissed any consideration of a moratorium on executions in Texas, insisting he is "confident that every case that has come across my desk -- I'm confident of the guilt of the person who committed the crime."

Not surprisingly, reporters immediately began wondering how many erroneous death sentences Bush would abide. Seven men have been released from Texas' death row in the past dozen years, including one under Bush, after courts determined that they had been wrongly condemned. Critics claim the only reason more people haven't been released is because the state has already executed them. It naturally raises questions about the guilt of the other people on its heavily populated death row (population 462, second only to California's).

Conservative luminaries Pat Robertson and George Will recently got religion on the issue, expressing concerns about the possibility that innocent people may be executed, given that 87 wrongfully condemned individuals have been freed from the nation's death rows since 1976. And Thursday, the newly formed National Committee to Prevent Wrongful Executions, whose members include death penalty supporters such as William S. Sessions, the former Texas judge and FBI director in the Reagan and Bush administrations, will call for a reexamination of the process that leads to wrongful death sentences.

A short list of the committee's concerns reads like a legal brief of the problems in the Texas judicial system, including inadequate provision of counsel; short filing deadlines; limits on evidentiary hearings that prevent defendants from presenting new evidence; and the execution of juveniles (such as Graham, who was 17 at the time of the offense) and the mentally ill, both of which Bush endorses.

Bush has, of course, found a receptive audience for his strong anti-crime and pro-death-penalty position in Texas. But it is not yet clear how this will play with voters who are not used to reading about an execution each week. The Illinois moratorium and publicity about wrongful convictions -- including the recent movie "The Hurricane," about the wrongful conviction of boxer Rubin Carter -- accompany polls that show public support for the death penalty, at 66 percent, is the lowest it has been in 19 years.

The "compassionate conservative" in Bush realizes he must not appear completely callous on the subject of taking a human life. In his campaign autobiography, "A Charge to Keep," he writes: "The worst nightmare of a death penalty supporter and of everyone who believes in our criminal justice system is to execute an innocent man." Nevertheless, Bush signed off on at least one execution in which the condemned man had a compelling claim of innocence. And many people believe Gary Graham is likely to be the next.

Bush has never commented publicly on the 1997 execution of David Wayne Spence, but the case is worth examining both because Spence made a compelling claim of innocence, and because his case goes directly to the governor's role in the state's execution process. Under Texas law, Bush can only commute a death sentence if he receives a recommendation to do so from the state Board of Pardons and Paroles. Absent such a recommendation, Bush's legal authority is limited to granting a 30-day reprieve.

Bush has used this legal technicality repeatedly to suggest that he actually has no power to stop an execution, and he seems to believe his own rhetoric. Following the execution of Karla Faye Tucker, Bush said, "Despite the call being sounded around the country and world, I could not convert Karla Faye Tucker's sentence from death to life in prison." And shortly before Betty Lou Beets was executed last February, Bush's office issued a press release with this afterthought: "Note: Governor Bush does not have the independent authority to stop the execution of Betty Lou Beets."

In reality, no one honestly believes that Bush could not have stopped the execution of Tucker, Beets or any other death-row inmate had he seen fit to do so. "One of the myths in Texas is that the governor doesn't have any power," says David Dow, a law professor at the University of Houston. "All the governor has to do is communicate his wishes to the members of the Board of Pardons and Paroles who are, after all, his political appointees, and they will do exactly what he wants." Dow notes that in the one case where Bush commuted a death sentence to life in prison -- serial killer Henry Lee Lucas -- the governor made it clear what he thought and the board carried it out.

Unlike the Lucas case, in which the Texas attorney general presented Bush with all-but-incontrovertible evidence that the condemned man could not have committed the specific murder for which the state sought to execute him, the Spence case required a bit of rumination. More than any other execution to date, however, Spence's raises questions as to whether Bush really takes his responsibility in the clemency process at all seriously.

Spence was tried and convicted by two separate juries in connection with what were known as the "Lake Waco Murders." The three teenage victims, Kenneth Franks, Jill Montgomery and Raylene Rice, were brutally stabbed to death at a Waco, Texas, park in July, 1982. The two girls had also been sexually assaulted.

On its face, the state's evidence against Spence seems overwhelming. It included, most importantly, testimony from two of Spence's co-defendants, who pleaded guilty to two of the murders in exchange for life sentences, and testimony from a forensic odontologist who said that bite marks inflicted on the two girls could have only come from Spence. The state also presented seven jailhouse informants who claimed they heard Spence talk about or confess to the murders, and a friend of Spence who said he'd told her that he and "some friends" had raped some "chicks" at Lake Waco.

But in the years following Spence's convictions, Spence's lawyers uncovered an astonishing body of potentially exculpatory evidence that had been withheld from the defendant's trial lawyers. Police investigative files discovered by Raoul Schonemann, who represented Spence post-conviction, from 1991 until his execution, showed that the state falsely informed the court that no other suspects had been identified by police.

In fact, police records showed that although not one of the 20-odd Waco citizens who were at the lake on the night of the murders had mentioned seeing Spence or his co-defendants, they had identified several other potential suspects, among them one Terry Lee Harper, who the same police files showed had actually boasted about having committed the murders.

Seven witnesses reported that Harper had told them of his involvement in the murders and no less than three said they had heard Harper make the statement before the murders were publicly reported on the radio. Harper also had a rap sheet listing 25 assaults, including several against teenagers at Lake Waco. When police tried to interview Harper, he refused to cooperate. When Spence's lawyers did question him, Harper denied any involvement, and signed an affidavit saying he was home watching "Dynasty" at the time of the murders. But "Dynasty" wasn't shown that night. When police finally went to arrest Harper in 1994 in connection with another crime, the fatal stabbing of an elderly man, he killed himself with a shotgun.

There are other reasons to doubt Spence's guilt. Given the grisly nature of the murders, the multiple stab wounds and extensive loss of blood, one might have expected police to find some physical evidence from the assailants.

Yet pubic and head hairs found on the victims' bodies matched neither Spence nor the state's other suspects. And the hairs were never tested against any of the other suspects identified in the police investigation. No hair sample was taken, for example, from Harper.

The only forensic evidence the state ever produced linking Spence to the crime was so-called bite marks on the two girls, which an expert state witness testified could only have come from Spence's teeth. But the state didn't bother to take bite-mark impressions from either of the other two suspects allegedly at the crime scene.

And the "bite marks" were only discovered a year after the victims were buried, when the prosecutor examined photos of the victims and concluded that faint markings described as lacerations in the autopsy were actually made by teeth. A blind panel of scientific experts brought together by Spence's lawyers, years after his trial, concluded that it was not even clear that the marks in the photos had been caused by teeth -- but if they were, they were not consistent with those of Spence.

Schonemann also obtained an interview transcript and statements written by the state's principal witnesses against Spence, Gilbert and Anthony Melendez, both of whom agreed to testify against Spence in exchange for life sentences. But when Schonemann compared the state's early interviews of the Melendezes with subsequent statements and testimony, he noticed critical differences in the latter that patched up inconsistencies in the state's case.

Where Gilbert Melendez initially told detective Truman Simons that the killers had transported the bodies of the victims in Spence's white station wagon, when Simons learned that Spence bought the white station wagon after the murders, Melendez revised his statement, correctly identifying Spence's car as a gold Chevy Malibu. Because the Malibu had only two doors, Gilbert also revised his initial statement that Spence had approached one of the victims "by the back door" of his car. The new statement had Spence approach the victim "on the passenger side in the back seat."

Still other problems with Spence's car arose after the FBI dismantled the Chevy and found no evidence that the bloodied victims had been transported in it as Simons' witness had initially claimed. According to Gilbert, "they [the state] didn't like the car because [it] didn't seem logical that you could put three bodies in a car and not find bloodstains or anything ... "

So Gilbert again changed his testimony, claiming the bodies were moved in Gilbert's truck. But the defense was able to produce Gilbert's mechanic, who testified that the truck was on blocks and inoperable on the night of the murders.

Similarly, Gilbert revised his statement concerning the time he and Spence supposedly arrived at Lake Waco. Initially, Gilbert said they'd arrived at 11:30 p.m. But that couldn't be true, because the gates to the park closed at 11 p.m. In order to allow the assailants enough time to get to the park, commit the murders, and move the bodies from one part of the park to another, Gilbert moved up the time of arrival by an hour and a half.

But perhaps the most bizarre change in testimony involved the apparent contradiction between Gilbert's earlier statements describing how the victims had been "screaming" and "hollering" during the murders, and the fact that the victims were found gagged. Actually, Gilbert testified, the victims were gagged after they were murdered.

Gilbert Melendez later testified, against the advice of his attorney, that he had fabricated the case against Spence. Melendez said Simons had promised him that he would be given immunity from prosecution if he went along with the scam (Simons could not be reached for comment). Tony Melendez said in an affidavit that he'd confessed because he feared that if he didn't, he would be executed.

The Fifth Circuit Court of Appeals found that the Melendez brothers' recantations lacked credibility, reasoning that no one would willingly subject themselves to a life sentence for a crime he didn't commit. But there have, in fact, been several proven cases in recent years of innocent men who confessed to murders they didn't commit after police intimidation. Furthermore, the recantations were not risk-free: By changing their testimony, the Melendez brothers subjected themselves to the capital murder charges they had hoped to avoid.

They were also not the only ones who changed their stories. Two of the state's jailhouse snitch witnesses later claimed they had fabricated their stories in exchange for favors from Simons. One, Jesse Ivy, signed an affidavit in which he said: "You could say that Truman Simons and [district attorney] Ned Butler put the facts of the case in my mouth, and I put them into the mouths of the other guys in the jail." Ivy claims he was given conjugal visits with his wife in return for his cooperation.

Another inmate who had testified against Spence signed an affidavit saying he knew Ivy's story was fabricated. "We all fabricated our accounts of Spence confessing in order to try to get a break from the State on our cases," said Robert David Snelson. Although testimony by jailhouse informants is highly suspect to begin with, and recantations may be viewed in a similar light, it is also true that in recanting, these witnesses may subject themselves to prosecution for perjury.

Schonemann believes the state of Texas executed an innocent man. But he insists a condemned individual should not have to prove his innocence to have a death sentence commuted by a governor. "The governor had a lot more information available to him than the jury, and there is no way a rational person looking at it would believe Spence was guilty beyond a reasonable doubt," he said. "The standard for a governor should not be less than for a jury. If there's significant doubt, he should commute. We're not asking that he let him go home."

Was Bush at all disturbed by the questions Schonemann raised? Did he have any lingering doubts whatsoever about Spence's guilt? Or did he discern anything in the record that might suggest a violation of Spence's due process rights? Apparently not. In response to a reporter's inquiries about how the governor made his decision to send Spence to the death house, Bush's deputy counsel, Stuart W. Bowen, sent a four-page letter noting that both the Fifth Circuit Court of Appeals and the Texas Board of Pardons and Paroles had rejected Spence's claims.

"In reviewing requests for reprieve, the Governor examines whether the applicant has had full access to the courts and whether there exists any credible new evidence indicating that the applicant is innocent," Bowen wrote. "Spence's application failed to meet these standards of review, and thus his application was denied."

Although Bush's "standards" suggest a genuine openness to appeals based on innocence and due process, in practice what Bush and his lawyers seem to require from those on death row is absolute proof of innocence. Such a standard applied in a court of law would, of course, be viewed as un-American, undermining one of the most fundamental precepts of our justice system. Although juries may not condemn a man unless they are convinced of guilt "beyond a reasonable doubt," a governor may sign off on a death warrant without applying any standard or even looking at the case.

Bush's insistence that no innocent person has been executed on his watch begs the question: How does he know? The claim is questionable for a number of reasons, particularly since Bush has endorsed efforts that actually increase the likelihood that an innocent person will be condemned. Bush campaigned for and, once elected, signed into law an act designed to limit appeals by death-row inmates and speed up the time between sentencing and execution from an average of nine years to seven or less. The law would probably have resulted in the wrongful execution of the seven men released from the state's death row, had it been in effect during the previous 12 years, since all seven served more than seven years on death row before their release.

Bush also vetoed legislation, unanimously approved by the Texas Legislature, that would have made modest improvements in the quality of attorneys provided to indigent defendants, despite the fact that the state has, by any objective measure, one of the worst systems of indigent criminal defense in the country (only three of the state's 254 counties have full-time public defender offices).

Although incompetent trial attorneys have been directly responsible for several high-profile cases that led to wrongful death sentences, the state of Texas leaves funding of criminal defense almost entirely to local governments. Of the $153 million in federal criminal justice grants the state has received since Bush took office, not one penny has gone to indigent defense. This has changed little since Gary Graham's arrest 19 years ago. His court-appointed trial attorney failed to even interview several witnesses to the murder who said they were certain that Graham was not the killer, and those witness were never called to testify for Graham at trial, his lawyers claim.

Granting clemency, meanwhile, is an extra-judicial proceeding to which any governor may bring any standard he desires -- or no standards at all. Bush says he reviews each and every death sentence. But the sheer volume of executions in Texas militates against any serious review.

Even Bush's former counsel, Judge Alberto R. Gonzales, says that a typical execution would receive no more than 30 minutes of the governor's time.

Because Bush doesn't have the time to review these cases, he relies instead on jury verdicts, which he admits he is loath to reverse, and the recommendations of his hand-picked Board of Pardons and Paroles. But the BPP does not seriously review these cases. In fact, it has been shown to be little more than a clumsy charade of clemency review.

In 1998, Judge Sam Sparks of the U.S. District Court in Austin, Texas, found that the board hadn't held a single hearing on a death-row clemency appeal nor conducted a single meeting among its members -- not even a telephone conference call -- nor investigated a single case in 25 years. "It is incredible testimony to me," Sparks said, "that in 70-plus cases, in an 18-member board, that no person has ever seen an application for clemency important enough to hold a hearing on, or to talk with each other about." Nevertheless, Bush has not contravened the board in a single case.

When the board declines to recommend clemency, Bush can stand up and say the case has been thoroughly reviewed by the courts and by the board, and salve any guilt he may have about executing a possibly innocent person by insisting that he was powerless to do anything more than grant a one-time 30-day reprieve. What the governor doesn't say is that he could also order his board to hold a hearing or investigate a case or ask it to reverse one of its decisions because he has examined the evidence and has doubts about an individual's guilt.

Bush doesn't do that not because he is powerless, but because he has made a conscious decision to not seriously review nearly all the 126 (since an execution May 9) death sentences that have crossed his desk.

Is Gary Graham innocent? It's hard to say. In addition to the questionable witness identification, his lawyers will also argue that crime scene witnesses who would have testified that Graham was not the assailant were either not put on the stand or were not asked if Graham was involved. Also, while Graham was found with a .22 pistol, police concluded it was not the .22 used in the murder.

Graham's lawyers believe that a jury will acquit him if it hears the critical evidence never presented at his trial. But that will only happen if he's granted clemency. And in George W. Bush's Texas, that's probably expecting too much.

By Alan Berlow

Alan Berlow is the author of "Dead Season: A Story of Murder and Revenge." His writing has appeared in the The New York Times Magazine, Atlantic Monthly and Harper's.

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