Meanwhile, throughout these years my case was wending its way along in the courts. They say justice deferred is justice denied. Well, I was in this for the long haul. My day would come—it had to. We turned over every stone, believing justice would arrive for me, however tardy. Along the way, my knowledge of the legal system and how it operated improved greatly. I had read so many legal briefs about the death penalty, and rulings from courts every day for several years by then, that I felt like an attorney discussing case law whenever the discussion turned to the merits.
In April 2000, the court had officially appointed Roy Greenwood and Jay Burnett as my counsels of record. During the same month, the state set an execution date for me. Roy filed a motion for a stay of execution, and it was granted in ten days. For those ten days, the proverbial gun was held directly to my head, but it didn’t feel like a proverb. It was very real, and sickening. There was a certain date with my name on it, and in my head, all I could hear was a voice saying, Anthony Graves, you have a date with death in Texas. It moved from theory to fact, and back again. My case hadn’t even made it out of state courts yet, and here was Texas attempting its first murder plot against me. After the stay was granted, Roy eventually filed my habeas corpus motion to the Court of Criminal Appeals.
In September 2002, my federal habeas motion was denied, and my petition was dismissed with prejudice against all the legal claims we’d put forth thus far. Roy explained to me that a ruling “with prejudice” meant that I couldn’t raise these issues ever again before that court. Another door closed. One step closer to death. Roy filed a motion for a certificate of appealability on that ruling before federal district judge Samuel Kent, seeking to pry the door back open. We didn’t hold our breath on this one, but when death is the prize, you fight every fight to hold the Reaper at bay.
Soon after the motion was filed, I had some unusual visitors to my cell. I was lying in my bunk reading a book, when two officers approached my cell door. “Graves,” said one of the officers, “the major told us to come get you to bring you down to his office.” I asked the officer why. I didn’t deal with ranking officers too much, so I knew something was up. I always tried to stay out their way, because my fight was with the State of Texas, not some high school kid who happened to get a job as a prison guard on death row. The officer gave a nonresponse, “Let’s go, Graves.” And so I went through the whole strip-search routine to be moved from my cell, then put my clothes back on. I was asked to turn around backwards and put my hands through the slot to get handcuffed. The door rolled, and I stepped out to be escorted down to the major’s office, which seemed like a long walk filled with uncertainty and apprehension. I was asked to take a seat opposite the major, who sat staring into my eyes.
“Mr. Graves, how are you?” he said, as I took note of his formality. “I’m fine, sir.” The major got right to the gut punch. “The reason why I asked my officers to bring you down here today is because we just got a call from the state. They’ve set an execution date for you. I need to ask you a few questions. What would you like us to do with your body? And what kind of food would you like to eat for your last meal?” His words poured through me as if in slow motion. And that is the exact moment when I had a realization. I said to myself, I am just going to live until I die. It was that simple. I am just going to live until I die. They couldn’t take that away from me, and that is what I could control of my destiny. As I look back on that moment, I recognize now how much those few minutes changed my life. I decided then that if the state was going to kill me, I would make damn sure that the whole world knew that Texas was executing an innocent man. By making this complete commitment to myself, I had turned a corner, and found my purpose. Only by helping myself could I be in a position to help others. I was energized by that experience, and I felt more in control than I had in years. Thus began my criminal justice advocacy in earnest, and it continues to this day through my foundation, and my approach to life.
Around this time, a former lawyer named Nicole Cásarez, along with her undergraduate students from the University of St. Thomas in Houston, began to contribute to my case on a regular basis. Nicole had become a journalism professor after leaving her corporate legal career behind, and this work suited her well. Her commitment and drive were much welcomed assets, and she even offered to write the elementary petition after we lost our appeal. Hailing from Canada, she is a mother of three children and a terrific wife, and she became an angel in my case, and my life. She kept hope alive through sheer determination, picking me up when I badly needed it.
In March 2003, we filed our next appeal, with the Fifth Circuit Court of Appeals. Offering the tiniest glimmer of hope, or at least a token symbol of success, in August of that year the Fifth Circuit remanded my case back to the lower court for a hearing on what’s referred to in the courts as a “Brady violation” that had come to light. Withholding exculpatory evidence in such a way, known in the court system as “Brady material,” is highly unethical, not to mention against all the evidentiary rules of our court system. To withhold evidence indicating a defendant may be not guilty in a criminal case is an egregious act of misconduct. When DA Sebesta went on Geraldo Rivera’s television show and revealed that Carter did tell him I was innocent, although Sebesta said he didn’t believe him based on a “gut feeling” that I was somehow involved, that opened a can of worms. My legal team dug deeper and was able to present a credible argument regarding the pattern of unethical behavior by the prosecutor, not just on one occasion but multiple times: Carter had told the DA, Ranger Coffman, and his own attorneys that I had nothing to do with the crime before trial, in addition to the grand jury testimony, and the DA knowingly withheld Carter’s statements from my attorneys and me. An order for an evidentiary hearing on the matter was set for March 2004 to determine if the prosecution had indeed withheld evidence from me during the trial that was “material either to guilt or to punishment,” thereby denying me due process.
This same month, Judge Kent denied my writ of habeas corpus. We asked for a reconsideration, and the case was referred to magistrate Judge John R. Froeschner. The hearing was granted and set for October 2004. Several motions had to be filed in the process. On October 22, 2004, Judge Froeschner denied all my claims. We requested time to file our objections, and the time was extended to January of 2005.
The final ruling against me came in February of 2005, signed against me again by Judge Samuel Kent. In March 2005, we filed yet another motion back to the Fifth Circuit for reconsideration, and this motion was granted.
It would be a full year before the Fifth Circuit made its decision.
_____________________
* Texas Department of Criminal Justice website, Offender Information, Emerson Rudd #936, Last Statement, https://www.tdcj.state.tx.us/death_row/dr_info/ruddemersonlast.html.
† Figures based on Texas Department of Criminal Justice.
PART FOUR
EXONERATION AND ACTIVISM
We must be prepared to accept the consequences of our actions for standing on truth, without ever giving up on infinite hope.
—ANTHONY GRAVES
MARCH 3, 2006:
SURPRISE FROM THE FIFTH CIRCUIT
This next step is a trick step because it’s not about innocence or guilt anymore. It’s about violating one’s Constitutional rights. We are hoping this court will grant us relief. If so, then we get the action we’ve been waiting on all this time. If not, then everything is still in the air. But I’m still optimistic and I know that GOD has his hands all over this situation.
—FROM A LETTER TO MY MOTHER DATED JANUARY 2, 2006, written from my cell on death row
ONE OF THE FEW THINGS that kept me energized during the long days on death row was baseball. One day in early March of 2006, I stretched out on my bunk and turned my radio dial until I picked up the faint sound of Milo Hamilton calling a Houston Astros game. When I was younger, I’d been good at baseball. Growing up, I thought I might be a baseball player, maybe even fo
r the hometown Astros. Those dreams left as most dreams do for young men, once it became undeniable that Pony League talent doesn’t mean a Big League future. It’s not that these dreams die. Rather, the dreams of every would-be ballplayer are locked safely in a chest, accessed only through a day at the park or, if you’re on death row, an afternoon spent listening to a game.
It was baseball that transported me from my cell and reminded me of who I’d been before my conviction. I couldn’t control much about the death row experience. The state could chain my body, constrain my activities, and control my meals, but the jailers would have a hard time piercing the force field that protected my mind from the soul-crushing insanity of such bondage. On this day, the Astros were playing a spring training game against Cleveland. They posted eleven runs on the board, topping C.C. Sabathia in a game that didn’t carry much weight in the baseball world but was still exciting to me, and it carried outsized meaning in what had become a somewhat meaningless existence.
It was right around the time that Eric Bruntlett drove in his fourth run that an officer disturbed my ballpark reverie.
“Graves, this is from another inmate,” she said as she passed a note into my cage. “It’s something about your case.”
I left my bunk to retrieve the note.
“Congratulations my brother,” it read. “You deserve it. I’ll see you out there.”
I looked at the words, stunned. They could only mean one thing: my case had been overturned in the Fifth Circuit, one of the most conservative courts in the country, if not the most. I usually joked that the Fifth Circuit was so rigid that Jesus could come down and testify on your behalf and there would still be a 2–1 vote to confirm your guilt. However, I would soon learn that the Fifth Circuit had ruled in my favor, 3–0, citing egregious prosecutorial misconduct. They overturned my conviction and ordered the lower courts to either retry me or release me in 180 days.
Roy Greenwood, the lead attorney on my case throughout this part of the appeals process, had not yet been in to deliver the news. As it happened, Nicole Cásarez, who had been assisting my attorneys for four years by this time and knew the case better than anyone else, had announced the ruling on a local prison radio show that guys on the row would listen to in order to get the latest legal news. As soon as she’d learned the Fifth Circuit’s ruling, she’d headed to the radio station to tell the hosts what had happened, and they’d immediately given her time on the air to announce it in the hopes that I was listening to the show. However, I was listening to baseball at the time.
I stared at the words in the note written by my fellow inmate, the letters shifting in and out of focus. I wanted to scream with relief, but something made me hold back. Ninety-plus percent of the men on my block would get executed. No doubt my friends on the row would have been happy to hear the news, but my joy would have added to their pain. So I did the only thing I could do. I walked back to my bunk, lay down, and closed my eyes.
The tears came quickly. I pumped my fist in the air. “Yes!” I exclaimed. God is good. I said it over and over. The news spread quickly. My friends and neighbors at Polunsky (formerly Terrell) heard the good news on the radio too. But despite the happiness I felt in that moment, I had to keep my emotions in check. Keep everything in balance, I said to myself. If there was a single thing I learned while sitting on death row, it was the folly of sailing too high or tilting too low. Surely, I felt freer in that moment. The uncertainty melted away as my optimism was invigorated. But I looked up and saw the cell door still closed. They had put me on death row without a speck of legitimate evidence in the first place. What would stop them from finding a way to invalidate the court’s ruling? Here on death row, I’d seen the worst-case scenarios play themselves out. A friend had received a reversal on his conviction, only to have a higher court restore his death sentence. They killed him not long after he got a note just like mine. The fight was far from over. So I remained guarded, even after receiving this extraordinary, almost dreamlike news.
The conservative Fifth Circuit’s unanimous ruling was remarkable. Based on the judges’ citation of egregious prosecutorial misconduct, my conviction was overturned, and they issued an edict to the trial court announcing the reversal.
The misconduct by the prosecution was varied and widespread, ranging from withholding exculpatory evidence and intimidating defense alibi witnesses off the stand to suborning perjury. This was all made worse by the fact that exculpatory evidence was withheld not only in a criminal trial but more specifically in a death penalty case, in which my life was on the line. Sebesta knew Carter said I had nothing to do with the murders and yet, the district attorney threatened to charge Yolanda, my best and most reliable alibi witness, with capital murder should she testify on my behalf. The DA had also knowingly allowed Robert Carter to testify falsely without correcting the record, or stopping it from happening in the first place. They allowed Ranger Coffman to testify falsely without correcting that incredible error either. The DA had also made false claims about another unsolved murder in an attempt to link me to it during a hearing with the judge, knowing full well that he had absolutely no “good faith” basis for making such outrageous claims.
The state now had 180 days, due to the Fifth Circuit’s reversal, to make its next move. Either the state could try me again, or they could cut me loose.
Despite the huge win at the appellate court, I still had to return to the county that convicted me, because a lower court still has autonomy over its case, even after the higher court overturns the outcome.
Nothing happens quickly on death row. Five long months passed before anything of consequence occurred. The state bought itself some time by petitioning the United States Supreme Court to review the Fifth Circuit’s ruling, and the Supreme Court took its time to announce that it would not consider the state’s appeal. By September, the state had no choice but to act. I was finally going to leave death row.
An officer gave me a minute to say my good-byes, but I wasn’t going home, of course. With the state planning to retry my case, I’d be moving from death row back to the Caldwell County Jail where I’d spent so much time waiting for the first trial. I packed my property and found some way to say good-bye to men I’d never see again.
Chino was my neighbor during those last days on death row. I rapped loudly on his wall in hopes that he’d come to the small slit between the cell door and the wall where inmates find a way to communicate. The doors were on rollers that left a gap between the door and the wall. I could go up to the door, and turn sideways so that I could peek through one eye and see half of my neighbor’s face while we stood there talking. I knew I wouldn’t be coming back, and I wanted to do what I could for him.
“Chino, is there anything in my cage that you want?” I asked. “I’ll try to get an officer to pass it to you.” It ended up like a makeshift garage sale. Among the gifts I left for my friends were the typewriter I’d used to communicate with people around the world, the stamps I would have affixed to letters to my mom, the radio that brought the Astros to my ear, and the money that filled my commissary account. I could have taken the property home, but I knew I didn’t need it. Chino slid his line underneath my door and I began to tie on several items for him: ramen noodle soups, squeeze cheese, chili without beans, and other foods. All those things had kept me alive, and if I wasn’t going to be there beside these inmates any longer, I hoped that my tools might help them find some solace.
I also called out to Ikei, whose real name was Anthony Pierce. He had been claiming his innocence for over thirty years! He spent all his time working on his case—writing letters and sending out packets of information in the hopes of getting someone’s attention. So I decided to leave all my stamps with him. An officer agreed to take them to his cell. Ikei called out to me to say thank-you and to please tell anyone I could about his case. I assured him that I would. I knew Ikei felt very isolated. Most other inmates didn’t want you to even mention their names!
Victories are
rare on death row, and life is so scarcely enjoyed that an inmate’s exit is cause for celebration. I was the twelfth man ever to be exonerated off the Texas death lineup. Two officers escorted me from my cell and put me through the typical rigors. The strip searches were nothing new, but the good-byes felt different. I saw men smile, as if they owned a piece of my impending triumph. I heard calls of “good luck.” “Don’t come back to this place,” one voice yelled out. Pettiness had no place on death row. The capacity of inmates to care wasn’t a zero-sum game. My exit inspired genuine glee rather than the jealousy one might expect.
The dress was different in county jail. From the white jumpsuit with DEATH ROW written across the shoulders, I changed into an old-school jail uniform with black and white stripes. The outfit made it seem like I’d been transported back in time, and truly, I was about to be transported back to the place where my journey began. I sat in the rear of a patrol car, waiting for the long ride to Burleson County. I thought first about the place I’d just left, and all that I’d seen. I thought about the men there, and how they’d challenged my view of humanity. The worst of the worst, or so I’d been told, but many of those men had become my friends. I thought of their stories and how I’d learned to control my thoughts in the face of excruciating cruelty.
I thought, too, of my family. I’d kept up communication with my mom through hundreds of letters. Some had been curt, a request for information. Some had been emotional, letting her in on the toll that death row took on me. I had high hopes that I’d be seeing her again soon. I thought about my sons, too, and what this would mean for their lives. Was it too late to be a dad to boys who had become young men since I’d been kidnapped by the state? Their lives had changed as well as mine, and I had no answers as to how we would go forward. It is not easy, after so many years apart, to just pick up from where you left off. My boys were now young men with responsibilities. They had children of their own.
Infinite Hope Page 19
