Innocence and the Death Penalty
The issue of innocence, and the many examples that have thrust this issue into the public’s eye, have changed the death penalty debate in this country. The importance of this issue has increased in recent years with the development of DNA technology. This science, along with a re-investigation of many cases, has led to the discovery of a growing number of mistakes and and to the release of a growing number of wrongfully convicted inmates.
The Issue of Innocence in the Gary Graham Case
During his appeals, Gary Graham contended that new evidence raised serious doubts about his guilt. His case highlights some of the issues surrounding wrongful convictions in death penalty cases across the country.
Eyewitness Identification
Mistaken eyewitness identification has often been a factor in cases where an individual’s conviction was overturned by DNA evidence. In Graham’s case, there were discrepancies in the recollections of several witnesses. The police investigation at the time of the homicide identified three eyewitnesses to the homicide, Daniel Grady, Wilma Amos and Bernadine Skillern. Each gave a description of the individual they witnessed shoot Bobby Lambert.
Daniel Grady was in the Safeway parking lot at the time of the homicide. Grady saw Bobby Lambert walk out of the store and be approached by a tall, slim black man. The two then engaged in a shoving match, and the black man appeared to be attempting to remove a wallet from the white man’s pocket. During the altercation, the black man pulled out a gun and fired. The victim fell against Grady’s car hood and the gunman fled. Grady described the perpetrator as young, wearing a white sports coat, and carrying a small caliber pistol.
Wilma Amos saw both Bobby Lambert and the perpetrator inside Safeway just minutes before the murder. According to Amos, Lambert was shopping and appeared to have been followed by a young black man in a white sports coat and black pants. Amos made her purchases and exited the store. When she reached her vehicle, she heard a commotion followed by the sound of a gunshot. She looked toward the front of the store to see the same black man that she saw inside the store run toward her with his hands in his pockets. She then went to check on the victim, whom she had also seen inside the grocery store. Amos described the gunman as a black man in his twenties, with short dark hair, clean-shaven, wearing black slacks and a white coat.
The state’s key witness, Bernadine Skillern, who was sitting in her car in the Safeway parking lot the night of the murder, described the perpetrator as a black male, between 18-20 years old, between 5’10” and 6 feet tall, with a slim build, a slim, clean-shaven face and a close-cut afro. He was wearing a white jacket and black slacks, and was carrying a black gun with a long barrel. She told the police that she saw a man put a pistol to Lambert’s head. When she blew her horn, the gunman turned to look at her. She heard a pop; Lambert dropped his bag of groceries, and the other man fled. She followed the suspect in her car until her screaming children made her stop. Skillern said that she got a good look at the killer for about a minute and a half through the windshield of her car, which was 20 to 30 feet away from the murder.
All three testified at Graham’s trial. Skillern testified that she got a full-face view of Graham and that she was certain he was the person she saw shoot Bobby Lambert. Neither Amos nor Grady was asked if Graham was the gunman during the trial.
In addition to the three witnesses called by the prosecution at trial, there were several other eyewitnesses in the parking lot or the store that night, including two employees of Safeway, checker Sherian Etuk and bagboy Ronald Hubbard, who gave statements to the police. Hubbard viewed the same lineup in which Skillern identified Graham, but said that he did not see Lambert's killer. After filing their reports that stated they were unable to identify the killer before the trial because neither saw his face, these witnesses did not hear from anyone again, and their testimony was not presented at the trial.
Two other witnesses, Malcolm and Lorna Stephens, who were in their car in the Safeway parking lot, came forward after the trial in 1993. In their affidavit, Malcolm Stephens stated that the height of the perpetrator was about 5’5”. Lorna Stephens believed the offender to be shorter than her husband who was 5’7”. Gary Graham was 5’10”.
Graham’s attorneys also presented the reports of two psychologists who evaluated the eyewitness testimony and concluded that Skillern’s identification of Graham was likely unreliable. To highlight the impact that the new witnesses could have had on the determination of Graham’s guilt, the attorneys presented signed affidavits from three jurors who said they would have voted not-guilty had they known about the other eyewitnesses at the time of the trial.
The State rebutted Graham’s claims that the testimony of Skillern’s testimony was unreliable; it asserted that the witnesses additional witnesses were not as credible as Bernadine Skillern. It submitted an affidavit from trial Judge Richard Trevathan stating that he “found all aspects of Ms. Skillern’s testimony to be completely credible and worthy of belief.” It also asserted that “great weight and deference must be given to the presiding judge’s finding of credibility as he was in a position to evaluate Skillern’s demeanor and credibility.”
The court denied Graham relief, stating that Bernadine Skillern’s testimony was credible and was not undermined by the affidavits of two witnesses who did not see the actual shooting. Furthermore, the court ruled that the testimony of the alibi witnesses were unreliable and should not be taken into consideration.
Circumstantial Evidence
Graham also attacked the circumstantial evidence against him. To support his claim that the state lacked physical evidence that tied him to the killing of Lambert, Graham pointed to the Houston Police Department’s own ballistics report. Lambert was killed by a .22 caliber bullet. Though Graham owned a .22 caliber pistol, the Houston Police Department’s firearms expert had concluded in 1981 that it was not the gun used in the killing. The jury in the original trial was not given this information.
Graham contended that he had no motive to kill Bobby Lambert, whereas other suspects investigated by the Houston Police Department did. A Houston Police Department report indicated that Lambert had been facing federal drug charges in Oklahoma at the time of the murder and was carrying three shotguns and a number of false identification cards in his van. The report described three other suspects in the Lambert murder who were not investigated further following Graham’s arrest. It also indicated that there was no evidence except Skillern’s identification connecting Graham to the crime, the Safeway, or its neighborhood.
Graham claimed these facts seriously called his guilt into question. In a supplemental petition, he claimed that because he was actually innocent, his execution would be unconstitutional, citing the Supreme Court case of Herrera v. Collins.
The State challenged Graham’s claims of actual innocence and maintained that the alibi witnesses were not credible. Graham’s criminal activity around the time of the homicide was presented as evidence that Graham’s behavior the night of the homicide was consistent with his activities during that week.
During an evidentiary hearing early in Graham's postconviction proceedings, a state court found that the alibi witnesses were not credible and their testimony should not be taken into consideration. As to Graham’s request that the court consider new evidence, such as ballistics tests that had not been introduced at trial, to support his claim of actual innocence, the court ruled that “Graham fell far short of the showing necessary to trigger consideration of such a claim.”
Furthermore, the court concluded that the execution of an innocent person does not itself violate the Constitution, as long as the proceedings which produced this erroneous result were not marred by some other defect that deprived the person of a procedural right guaranteed by the Constitution (such as the right to counsel, for example). As a result, Graham was not entitled to relief in state or federal court based simply on the claim that he was innocent. The Court added, as an alternative ground for denying Graham relief, that even if a claim of innocence, unaccompanied by any other claim of a constitutional violation, were to be recognized as a basis for judicial relief from a sentence of death, Graham’s own “showing of `innocence' falls far short of the threshold showing which would have to be made in order to trigger its consideration and relief based thereon."
Prevalent Causes of Wrongful Convictions in Capital Cases
The potential for wrongful convictions in capital cases has led many to question the reliability of the criminal justice system. Mistaken eyewitness identification, false confessions, and unreliable informant testimony have been identified as prevalent causes of the conviction of innocent people. The following section provides a brief overview of the most common factors leading to wrongful convictions and includes links to additional resources on these factors and the issue of innocence and the death penalty generally.
Eyewitness Identification
In a review of the causes of wrongful convictions, the Innocence Project, an organization that works to exonerate the wrongfully convicted through post-conviction DNA testing, found mistaken eyewitness identification to be the most prevalent. A review of previous eyewitness reliability studies conducted by Gary Wells and Elizabeth Olsen concluded that many of the common characteristics of homicide scenarios negatively influence the accuracy of an eyewitness’s identification. For example, the identification of a stranger, identification in an emotionally stressful event, and the method of identification or type of line-up employed by the police all affect an individual’s ability to make an accurate identification.
False Confessions
False confessions contributed to wrongful convictions in 35 of 130 exonerations examined by the Innocence Project. The most common factors that contribute to defendants admitting to crimes they did not commit are the individual’s mental illness or mental retardation, intoxication or extreme duress. The length and intensity of interrogations have also been seen as an important variable in the reliability of confessions. Research by City University of New York Professor Saul Kassin illustrates how false confessions can proceed undetected through the criminal justice system. According to studies conducted by Kassin, law enforcement officers have trouble distinguishing real from false confessions and are more likely to trust the confession of an individual who did not actually commit the crime than they are to distrust a legitimate confession. This trust in confessions is also exhibited in research on juries, which shows that the presence of a confession significantly increases the conviction rate, even when jurors believed the confession had been coerced.
Faulty Science
Though DNA testing has been useful in establishing innocence and locating those who are responsible for crimes, the results of this testing are only as reliable as those who conduct the investigation. In recent years, a number of death row exonerations have involved the testimony of experts whose testing and analysis practices failed to meet even basic standards of science. These experts violated the principles of the scientific method by testifying about tests that were never conducted, suppressing evidence, falsifying results, falsifying credentials, misinterpreting test results, and exaggerating statistical probabilities, during their testimony as “expert” witnesses for the state.
Informant Testimony
According to the Center on Wrongful Convictions, testimony given by co-defendants or other individuals seeking deals, special treatment, or the dropping of criminal charges against them is a common factor in wrongful convictions and death sentences. A survey by the Center found that informant testimony played a key role in sending a number of innocent people to death row for crimes they did not commit.
Questions for Further Analysis
- Do you think that tighter controls for reliability should be imposed upon the handling of DNA and other evidence in criminal cases? Should such controls be tighter in capital cases than in other criminal cases? What kinds of tighter controls would you favor?
- Do you think that jurors should be allowed to hear evidence from experts on eyewitness reliability and the possibility of false confessions in cases where those types of testimony provide evidence of the defendant's guilt?
- What types of reforms would increase the reliability of such of testimony?
- Should there be a higher burden of proof of guilt in cases where the defendant is eligible for the death penalty (higher than “beyond a reasonable doubt” – such as beyond all doubt or with no lingering doubt)?