Sounds like a solid case for the prosecution until you know that two other witnesses, both entirely credible, say Graham was not the killer–and no jury has ever heard their testimony. In interviews with NEWSWEEK, these witnesses raise doubts about Graham’s conviction and death sentence, now the focus of an increasingly desperate effort to win a stay of execution from the state of Texas and Gov. George W. Bush. Bush supports the death penalty, and his campaign last week had no statement on the Graham case. But capital punishment is now an issue in the presidential race and, in Austin, the governor’s staff was treading carefully. Graham’s lawyers got a meeting with Bush’s general counsel and the chairman of the Texas Board of Pardons and Paroles, which will review the case this week–a sliver of hope for Graham.
The other two witnesses were Sherian Etuk and Ronald Hubbard, both of whom worked at the Safeway back in 1981. Etuk was a checker and Hubbard was a bag boy, and both of them say they got a good look at the slim, handsome African-American man loitering outside the store. Etuk and Hubbard say the man was between 5 feet 3 inches and 5 feet 6, which could have posed a problem for the prosecution–Graham is almost 5 feet 10. Hubbard says he passed within one or two feet of the man not long before the shooting, then saw him run away after Lambert was shot. Like Skillern, Hubbard attended the lineup of suspects that included Graham. Skillern picked Graham as the killer, but Hubbard said he didn’t see the gunman in the group. (Prosecutors say Etuk and Hubbard have changed their stories over the years.)
To defense lawyers, the core issue isn’t necessarily whether Skillern was right or wrong, but whether a man should be sentenced to die when credible witnesses disagree. The fact that the jury never heard Etuk or Hubbard raises questions about Graham’s court-appointed lawyer, Ronald G. Mock. Graham’s current legal team says Mock’s defense was a travesty. Mock told the Chicago Tribune that he is “a good lawyer” who represented his clients “to the best of my ability.” The Tribune noted, however, that Mock has been disciplined five times by the Texas Bar Association and that in one case, a court investigator said Mock’s lawyering created “a breakdown in the adversarial system of justice.”
The broader issue is whether Texas, the nation’s leading death-penalty state with 221 executions since 1982, takes reasonable steps to ensure a competent defense in capital cases. The Tribune, noting that lawyers in 43 of those cases were disciplined for misconduct at one time or another, strongly suggested that it does not. That is exactly the sort of systemic problem that led Illinois Gov. George Ryan to declare a moratorium on executions earlier this year, and there is every likelihood it will haunt Bush as well: between now and Election Day, 15 more people are scheduled to die in Huntsville.
