by James Ellroy
Witness Amos is sick. Witness Amos is absent.
Witness Hubbard views the lineup. Witness Hubbard declines to ID.
He stresses:
He never saw the shooter’s face. The shooter hid his face.
Witness Skillern views the lineup. Witness Skillern ID’s Gary Graham.
Owen drives Ms. Skillern home. Ms. Skillern states:
She recognized Graham from his photo. The photo looked like the shooter.
But:
The man’s skin was too light.
But:
She saw the live lineup. She saw the live man.
NOW she was sure.
OWEN AND ELLIS braced an assistant D.A. The D.A.’s Office filed.
ARRESTED AND CHARGED: CAPITAL MURDER/182ND DISTRICT
COURT/CAUSE 3353780.
GARY GRAHAM/HPD # 337682.
2.
The trial. Judge Rick Trevathan presiding.
Carl Hobbs for Harris County. Ron Mock and Chester Thornton for Graham.
The County had no confession. The County had no evidence. The County had a one-witness case.
The judge appointed Mock. Mock was a two-year lawyer. Thornton was three.
Thornton asked for the job. Thornton knew Graham. Thornton handled a previous beef.
Mock was first-chair counsel. Thornton was backup. Both men were black.
The County gave Mock a budget. For “investigation and research.”
$500.
Mock hired a PI. Merv West charged $30 an hour.
Mock talked to Graham. Graham copped to the heist spree.
Graham copped to booze and dope habits. Graham offered an alibi: “I was high somewhere.”
Thornton knew Graham. Thornton knew his story.
Graham had six siblings. Six kids cross-hatched. Different parent combos.
Graham’s folks split up. Graham’s dad did heist time. Graham split the 7th grade.
Graham roamed Houston. Graham caused trouble. Graham bunked with relatives. Graham fathered kids at thirteen and fifteen.
Mock thought Graham was guilty. Thornton wasn’t sure.
They got the heist-spree stats. The spree stats resembled the snuff stats.
Mock issued orders. Mock told Thornton to work the family end.
Get some character wits. Lube the penalty phase.
Graham gave Mock some names. Potential alibi wits. Mock gave the names to Merv West.
West did not contact them. West sniffed the vibe: Mock thinks Graham did it.
West talked to some cops. They thought Graham did it. West assimilated their vibe.
He’s guilty.
West braced Sherian Etuk. West braced Daniel Grady. They did not ID Graham.
West checked the Safeway lot. West checked the night lights.
West concluded:
Witness Skillern would be hard-pressed to see the shooter’s face. The distance and lighting would impinge on her.
West checked out the victim. A cop supplied rumors.
Lambert was a con man. Lambert might have been queer.
West called some Graham family members. West glommed some anecdotes. West checked Graham’s juvie record.
West rode the gestalt. He’s guilty.
West worked with Mock before. West knew Mock’s style.
Mock had clients presumed pure. Mock had clients presumed bad. Mock did not waste PI time on the bads.
Mock strategized. Mock consulted Thornton. They concurred:
The spree stats screwed Graham. Exclude them at the guilt phase. Eschew an alibi defense.
The judge might balk. The judge might allow spree data.
Exclude Graham’s gun. Exclude the negative test.
It would bring in the heists. It would prejudice jurors.
Mock thought he could win.
Graham was a juvie. The case lacked death-penalty intent.
The trial ran a week.
Mock got the heists excluded.
Wilma Amos testified. She said she saw the victim inside the store.
They spoke. They discussed gloves.
Ms. Amos saw another man. The man wore dark pants and a white jacket. The man looked at the victim.
Ms. Amos stood in a check-stand line. The “other man” left the store.
Ms. Amos paid for her items. Ms. Amos walked out.
She heard a horn. She saw the victim and the “other man” “tusseling.”
The “other man” shot the victim. The “other man” walked away.
The night lights were good.
But:
She could not ID the “other man.”
Daniel Grady testified. He said his wife went shopping. He sat in his car.
The victim left the store. A black male approached him. The black male grabbed the victim’s back pockets.
The victim dropped his groceries. The victim pulled away. The black male pulled a gun. The black male shot him.
Grady saw the black male’s face. Grady could not ID him.
Bernadine Skillern testified. She said she sat in her car. Two kids were with her.
The lot lights were good. She could see people. She could recognize them.
A black male approached the victim. The black male was Gary Graham.
A tussle occurred.
Ms. Skillern honked her horn.
Graham turned. Graham looked straight at her.
Graham shot the victim. Graham fast-walked away.
Ms. Skillern kicked her engine. Ms. Skillern kicked her lights. Ms. Skillern tailed Graham.
Graham turned. Graham looked back. Graham started to run.
The kids started to scream. Ms. Skillern stopped her pursuit.
Mock did not challenge Amos and Grady. Mock did not impugn their non-IDs. Mock did not want to risk equivocal answers.
Mock cross-examined Skillern. Mock did not impugn her. Mock referred to Gary Graham as the killer.
Trial pages 360–361. Mock to Skillern:
“According to your testimony, Mr. Lambert would have been to the defendant’s left at the time they first had an encounter?”
Trial page 375. Mock to Skillern:
“All right, so you had seen the defendant’s right side when you first approached him?”
Trial page 378. Mock to Skillern:
“I think your testimony was that as you blew your horn, he turned his head toward you for a split second?”
Skillern to Mock: “Meaning Mr. Graham?”
Mock to Skillern: “Yes, ma’am.”
The trial wound down. Two alibi wits volunteered.
Loraine Johnson. Jo Carolyn Johnson. Graham’s cousins.
They knew Gary got popped. They knew in May. They offered alibis in October.
They went to the courthouse. They found Ron Mock. They offered this story:
Gary was innocent. Gary went to a party on 5/13.
The party occurred in an alley. Loraine had a toothache. Cousin William’s birthday was 5/15. That’s why they knew the date.
The party was informal. The party went late. William was there. Five women showed.
Gary arrived before 6:00. Gary stayed through 1:00 a.m.
Gary left one time only. Gary and William walked to a liquor store.
It was six blocks away. They bought some liquor. They walked back.
Mock disdained the story. Mock shined on the wits.
Mock said Gary would be found guilty. Mock said Gary was guilty. Mock said he’d try to save Gary’s life.
Mock wanted penalty wits. Mock wanted to build mitigation.
The trial ended. The jury adjourned. The verdict was GUILTY.
THE PENALTY PHASE. Pro–Gary Graham:
Graham’s stepfather testifies. He states:
Gary was nice to him. Gary visits his mother. Gary mows the yard. Gary cleans and helps his mother.
Gary cares for his mother. Gary is not violent. Gary tries to provide for his kids.
Graham’s grandmother testifies. She states:
&n
bsp; Gary stays with her sometimes. Gary’s mother has a nervous condition.
Gary never gives her trouble. Gary loves the Lord. Gary has never been violent.
The County presents its case. The heist spree explicates.
Robbery. Thirteen counts. Eyewit IDs.
The dates: 5/14–5/20/81.
5:30 p.m. 5/14/81:
Graham robs a man. Graham employs an accomplice. Graham employs a Magnum revolver.
Graham steals the man’s briefcase. Graham steals the man’s car.
9:00 p.m. 5/14/81:
Graham hits a car wash. Graham displays a revolver. Graham robs two women.
He calls them “bitch.” He steals their Cadillac. He leaves the car he drove up.
10:00 p.m. 5/14/81:
Graham employs the Cadillac. Graham employs an accomplice.
They hit a Stop & Go lot. They jump in a van. They accost two men. They demand their watches and money.
Graham pulls a gun. Graham fires it. Graham nails a man in the neck.
The bullet hits the man’s larynx. The man survives.
Graham steals the van. The accomplice escapes in the Cadillac.
4:30 p.m. 5/15/81:
Graham hits a Woolco parking lot. Graham approaches a man. Graham asks for a ride.
The man agrees. The man drives him to a Jack in the Box. Graham says it’s the wrong one.
The man pulls out. Graham pulls a shotgun. Graham steals the man’s van.
6:30 p.m. 5/15/81:
Graham hits a parking lot. Graham sees a man in a Cadillac. Graham asks him to jump-start his van.
The man agrees. The man prepares his battery.
Graham pulls a shotgun. Graham herds him into the van. Graham calls him a “motherfucker.” Graham threatens to blow him away.
Graham steals his money and checkbook. Graham steals his Cadillac.
8:30 p.m. 5/15/81:
Graham drives the Cadillac to a nightclub. Graham approaches a man outside.
Graham pulls a shotgun. Graham steals the man’s toolbox and keys.
The man reports the heist. The man enters the club. The man exits at midnight. He’s with a woman.
12:00 midnight. 5/16/81:
Graham enters the parking lot. Graham has an accomplice.
They attempt a heist. Graham pulls a shotgun.
The man has no swag. Graham and the accomplice disperse.
1:00 a.m. 5/16/81:
The Caddy runs out of gas. Graham pushes it. An accomplice assists.
They push it to a gas station. A man and woman assist.
The accomplice pulls a shotgun. Graham and the accomplice try to steal the man’s van.
The man resists. The accomplice shoots him in the leg. Graham and the accomplice steal the van. The man is dragged 50 feet.
5/16/81:
A family’s car breaks down. They stand out on a highway.
Graham pulls up. He has an accomplice.
They offer help. They give the father a ride.
Graham pulls a shotgun. Graham tells the man he’s going to kill him. Graham aims the shotgun and fires.
The man knocks the barrel down. Graham shoots him in the leg.
Graham steals his necklace, watch, and money. Graham tells him they’re going back to kill his family. Graham throws him out of the car.
11:00 p.m. 5/18/81:
Graham hits a parking lot. He employs an accomplice. They accost a man in a parked car.
Graham pulls a pistol. Graham opens the passenger door. The accomplice opens the driver’s-side door.
They rob the man. They steal his billfold and watch. They steal his car.
12:00 midnight. 5/19/81:
Graham hits a parking lot. Graham employs an accomplice.
Three people flank two cars. Two men, one woman. Graham and the accomplice approach.
Graham has a pistol. The accomplice has a shotgun.
They search the people.
Graham says, “You son of a bitch, motherfucker, give me your shit.”
Graham hits a man with his gun. Graham cocks the gun. Graham puts the gun to the man’s mouth. Graham demands his watch, ring, and wallet.
Graham touches the woman’s breasts. Graham steals her wedding ring.
Evening. 5/19/81:
Graham hits a parking garage. Graham asks a man for directions.
Graham pulls a revolver. Graham steals the man’s wallet.
Graham gets in the man’s car. Graham makes the man drive around the garage. Graham tells the man that he’s killed six people.
5/19/81:
Graham hits a parking lot. Graham approaches a woman. Graham offers to buy her car.
The woman says no. Graham says he’s got a gun. Graham demands her car keys. Graham steals her car.
Nine victims testified. Nine wits described Graham’s actions.
A Youth Council worker testified. She said she knew Graham. She knew his reputation.
His reputation was bad.
The penalty phase concluded. The jury voted Death.
GRAHAM WENT TO death row. Graham copped to ten heist counts. Graham got twenty years per.
Judge Trevathan appoints appellate counsel. He files Graham’s automatic appeal.
Rejected/Court of Criminal Appeals/6-12-84.
7/13/87: Graham’s lawyers file State Habeas Corpus. Rejected/2-19-88.
2/23/88: Graham’s lawyers file Federal Habeas. Rejected/ 2-24-88.
8/31/88: The Fifth Circuit Court of Appeals affirms the rejection.
The lethal injection room at the Texas state prison in Huntsville. (Copyright © Guy Koppenburg, 2003)
Said court issues a stay of execution pending two Supreme Court decisions.
7/3/89: The Supreme Court vacates the Fifth Circuit’s judgment. It remands Graham’s case to the Fifth Circuit Court of Appeals.
3/7/90: The Fifth Circuit vacates Graham’s death sentence.
1/3/92: The Fifth Circuit reverses the previous decision. It affirms the denial of Habeas relief. The Supreme Court affirms the judgment—1/25/93.
4/20/93: Graham refiles State Habeas.
4/27/93: The Court of Criminal Appeals denies relief.
4/28/93: Governor Richards grants a stay of execution. The State District Court resets the date: 6/2/93.
4/28/93: Graham’s lawyers file a Writ of Certiorari.
5/24/93: The Supreme Court denies said writ.
6/2/93: The Court of Criminal Appeals stays Graham’s execution pending a Supreme Court decision.
Said decision goes down. The Trial Court sets a new date: 8/17/93.
7/21/93: Graham files a civil suit. The suit requests a Board of Pardons hearing. The hearing is scheduled for 8/10/93.
The hearing occurs. The Board of Pardons files an appeal notice. Graham’s execution is stayed.
4/20/94: The Court of Criminal Appeals voids said stay.
The process continued. The process attenuated.
Graham got new lawyers. They filed new writs.
They stressed the alleged incompetence of Graham’s trial counsel. They stressed the sole eyewit. They stressed the contradicting eyewits. They stressed the alibi wits.
Briefs/writs/motions/hearings/appeals.
Lethal injections scheduled and postponed.
Publicity. Graham—pro and con. The Lambert snuff as justice cause célèbre.
Defense committees. Hollywood endorsements. Amnesty International. A twenty-minute agitprop film.
A schmaltzy soundtrack. Gary Graham—Nelson Mandela West.
The process dragged. Graham stayed on death row. Graham changed his name to Shaka Sankofa.
The process dragged into 2000.
3.
Houston was the shits.
I caught it coming in. I caught it off a high freeway.
Some strip malls were new. Some strip malls were old. Future strip malls stood half-completed.
The floor plan jarred. The color scheme clashed.
Jerry-rigged subu
rbs. Southwest pastels. Too much white on beige.
It was humid. It was hot in November.
I flew in with my friend Rick Jackson. We brought our paperwork. Graham’s appellate lawyer supplied it.
Rick was a PI. He was ex-LAPD. He worked murders in Hollywood. He worked major crimes at Robbery-Homicide. He sandwiched in a USC master’s.
Rick loved crime. Rick loved crime past his vocation. Rick loved the riddle of motive and lives in duress. Rick loved crime as social history. Rick loved crime with the guilelessness of a kid discovering sex.
Rick cosigned the death penalty. Rick sent two men to death row. One man fried. One man killed himself.
I cosigned the death penalty. I dismissed the inherent inequities based on class and race. I believed in punishment and the ultimate censure of vicious and wanton acts. I knew the death penalty did not deter murder. I believed that the death penalty unified and set a tone of intolerance for murder. I countered all rebuttals steeped in mitigation. Poverty did not move me. The cumulative effect of historical racism did not move me. I weighed systemic injustices against the necessity for judiciously applied vengeance and viewed the abrogation of individual rights as a palatable trade. My bottom line—thoroughly reasoned and in no way disingenuous:
If you have to know why we need the death penalty, you’re never going to know.
One counterthought torqued me. One quasi-rebuttal lurked.
I dismissed most mercy pleas based on mitigation. I dismissed the unequal levy of death decrees against people of color. I could not condone the execution of innocent men and women.
Hence Gary Graham.
I read the paperwork. Rick read it. We discussed it.
The details played ambiguous. The details contradicted and counterweighted. The details lacked the cohesive logic of innocence or guilt.
Graham’s spree follows the Lambert snuff. Some snuff details and spree details cohere. Graham says he’s killed people. Graham tells a victim: If I’m caught, I’ll burn.
Witness Skillern’s ID. Variant IDs. The alibi wits.
Rick’s bottom line:
He wouldn’t file a case off a single-wit ID.
We checked into our hotel. We prepared to roll.
We had a phone list. Rick made calls. We arranged interviews.
Rick called Detective Owen. Owen worked for the DEA now.
Owen was brusque. Owen said he was vague on the Graham case.
Rick called Detective Ellis. Ellis lived in San Diego. Ellis said he was vague on the Graham case.
