"Furthering Our Fight Against Injustice"

Larry Marshall is the legal director of the Center on Wrongful Convictions in Chicago and a well-known death penalty lawyer. He and the Center took up Shaka's case. Marshall talked to the New Abolitionist.

You said you thought Gary's case was one of the most compelling cases of innocence in the U.S. Could you explain why?

To begin with, the entire case was based on one eyewitness, Bernadine Skillern, who saw the shooter through her car window, from a considerable distance, at night, for a very few seconds. There has been media distortion on this point with claims that she saw the shooter for a longer time - but she admitted that she saw his face for only a few seconds.

There was absolutely no other evidence tying Graham to the crime in any other way. This was the way that the case went to the jury. The truth is, though, that there was very significant evidence supporting the claim that Graham was innocent.

Unbeknownst to the jury that convicted Graham, two other witnesses are emphatic that Graham is not the man who committed this crime. They saw the killer for a considerable period of time and from a relatively short distance. They are sure that Graham's face doesn't resemble the perpetrator's and that Graham is significantly taller. Four other eyewitnesses from whom the jury never heard also observed that the shooter was shorter than the victim. Graham, by contrast, is at least three inches taller.

That's not all the jury never heard. Skillern told the police that the killer had no facial hair and a short-cropped afro. Yet when police prepared a photo spread, nine of the ten pictures showed to her didn't match this description. The only one that did was Graham's picture.

Even after this extraordinarily suggestive identification procedure, Skillern still failed to make a conclusive identification, saying the picture looked like the murderer, but the complexion of the man she saw was darker and his face was thinner. Then the police arranged for a live lineup, with Graham the only person in it whose picture Skillern had seen--a pattern common to misidentification cases.

The jurors were ignorant of these crucial facts because Graham's court-appointed counsel, Ronald Mock, presented no witnesses for the defense and made no attempt to impeach Skillern. It was a decade after Graham was sentenced to death that new lawyers finally brought all this information to light.

But by then, Graham already had exhausted a full round of appeals, and for that reason, the courts invoked a series of technical rules that preclude a defendant from introducing evidence that emerges after his initial appeals.

Were you surprised that the Texas system went ahead with the execution?

I was extremely surprised. I could not understand how the Board of Pardons and Paroles could possibly think it wise to execute him without ever affording any hearing to the witnesses who were so emphatic that Graham was not the man. I was shocked that Governor Bush - who seeks to have the future of the world in his hands - would think it wise to make a decision like this without ever hearing from the witnesses - whom, I repeat, were never heard by any court or any official body.

What do you think the impact of Gary's case will be on the future of the death penalty?

Many good people - including many supporters of capital punishment - were repulsed by the idea that the death penalty can lead to the execution of a person who: (a) is very possibly innocent, (b) received unspeakably bad representation at trial, (c) was a juvenile at the time of the alleged offense, and (d) was never given an opportunity to present his witnesses in any court.

I have always maintained that as more people come to understand the realities of the current death penalty in America, they will work to abolish it. The Graham case was the most intense national seminar on this topic to date.

None of this diminishes the horror of what happened, but we all owe it to the Gary Grahams of the world to use this lesson to further our fight against injustice.