Much has been written here about Cameron Todd Willingham, a likely innocent executed by the State of Texas. His case may represent the largest challenge to the death penalty that Texas has ever seen.
Cameron Todd Willingham was white. Some may argue this is irrelevant, but the death penalty can never be disentangled from issues of race.
The recent issue of The Black Commentator in The Color of Law: Governor Rick Perry and His Texas Death Machine are in Big Trouble makes this point:
the death penalty never was intended to be fair, as it is a holdover from Jim Crow lynching. Capital punishment was an effort to transplant lynchmob justice into the courtroom and make lynching official, if not respectable. Guilt or innocence is of little concern here, as finality reigns supreme...We will never know how many people have been wrongfully executed. But Cameron Todd Willingham certainly would not have been the first.
Hopefully the last but no, not the first. There was at least one other in Texas - Shaka Sankofa, aka Gary Lee Graham.
Shaka Sankofa was executed June 22, 2000 in the midst of the Presidental campaign and despite international outrage. The case also sparked national debate -- WITH BUSH ASSENT, INMATE IS EXECUTED - and raised questions of innocence and age that were then legally ignored. Gary Graham's execution brought to 17 the number of people put to death in the US since 1976 who were juveniles at the time of their arrest. Had he survived another 5 years, his sentence would have been commuted to life in prison when the Supreme Court finally struck down executions for juvenile offenders in ROPER V. SIMMONS (03-633) 543 U.S. 551 (2005)
In brief, the salient issues of the case included:
No physical or circumstantial evidence placed Graham at the crime scene.
The prosecution's case against Graham consisted almost entirely of the testimony of a single eyewitness who saw him through her car window from 30 to 40 feet away.
In a reportedly suggestive identification procedure, this witness failed to identify Graham in a photo array. She subsequently identified him in a line-up in which he was the only person who also had been in the photo array.
None of the other four eyewitnesses identified Graham as the killer or placed him at the crime scene.
In the police line-up, which included Graham, one eyewitness specifically excluded Graham.
Graham's physical appearance differed in important respects from the descriptions provided by several witnesses.
Two witnesses, who saw the man thought to be the killer at close range, have provided affidavits in which they assert that, having viewed Graham's photograph, they are positive that he was not the shooter.
Graham's court-appointed trial lawyer did not interview or present at trial the other eyewitnesses or Graham's alibi witnesses.
The Houston Police Department's firearms expert found that the bullet that killed the victim was not, and could not have been, from Graham's gun.
On appeal to the U.S. Court of Appeals for the Fifth Circuit, the court found that "there is a large body of relevant evidence that has not been presented to the state court" and sent the case back to the state of Texas for an evidentiary hearing.
The state of Texas dismissed Graham's application for such an evidentiary hearing.
Graham returned to federal court, but the Anti-Terrorism and Effective Death Penalty Act of 1996, which subjects cases to a much higher threshold for federal review, had been enacted by Congress in the interim, and thus the Fifth Circuit refused to review the decision of the state court.
The Supreme Court of the United States refused to review the contradictory decisions.
Despite substantial evidence of innocence, Governor George W. Bush refused to grant Graham a 30-day stay of execution and the Board of Pardons and Paroles denied clemency.
Senator Russ Feingold's pled with the Senate to no avail --
Congressional Record
Vol. 146 WASHINGTON, TUESDAY, JUNE 22, 2000 No. 88
THE EXECUTION OF GARY GRAHAM
Mr. FEINGOLD. Mr. President, the Nation has been engaged in a raging debate in recent days on whether Gary Graham should be executed in Texas.
Supporters of the death penalty, including Governor Bush, have said there is no conclusive proof that Texas or any State has killed an innocent person. But apparently Gary Graham, who had the courthouse doors slammed shut on his claim of innocence, won’t have a chance to prove that he is innocent.
I understand, at this momen, that all appeals have now been denied.
Mr. Graham is scheduled to be executed before midnight tonight.
Mr. President, Mr. Graham’s plight symbolizes some of the most serious concerns with the fairness and accuracy in the administration of the death penalty. Don’t get me wrong, Mr. Graham is not a good guy. He is a criminal, and, in fact, a very serious offender who deserves very serious punishment.
But we need to realize what is about to happen. He is still a human being who is about to be executed at the hands of the State of Texas. This is a capital matter.
Mr. Graham may not have committed a murder for which he is about to be executed. This case raised very serious issues of woefully incompetent trial counsel, eyewitness testimony that has never been heard by a jury, a conviction based on the sole testimony of just one eyewitness, and exculpatory ballistic testing data that was not shown to the jury.
Despite the claims of those who would support the death penalty, Gary Graham is not alone. There are other examples of people -- in places like Virginia, Florida and even Texas -- who have been put to death in the face of grave doubt about their guilt. We don’t have absolute proof of their innocence. But some day soon, if we continue to let this system run amok, there will be a case where an irrefutably innocent person is executed.
One Governor got it right. Governor Ryan of Illinois called a halt to executions in his State and appointed a blue ribbon commission to study whether the system could be fixed. Some say, I think essentially with no basis, that, yes, that was the right thing to do in Illinois but that Illinois is an aberration. Mr. President, I don’t believe for a minute that Illinois is an aberration when it comes to the problems with the administration of the death penalty in this country. Governor Ryan was right when he said that he wanted absolute certainty that the person scheduled to die is guilty. The same certainty should apply to the State of Texas this very evening.
A recent study by Columbia University documented that 52 percent of death penalty cases in Texas were overturned on appeal during the time period for which the study was done. Nationwide, the Columbia study found an average reversal rate of nearly 7 out of 10 capital cases.
What does the Governor of Texas say? He says he is certain that every single one of the over 100 people executed under his watch as Governor was guilty. I have heard him say this many times. He only considers two factors: Whether the person is guilty, and whether he or she had full access to the courts.
This is a matter of life and death. They found out in Illinois that it is not that simple. It is not just whether the person is guilty and whether they had full access to the courts. I have no doubt that the intense media and public scrutiny of Texas and Governor Bush’s leadership is warranted in this case. The same kind of problems are arising in Texas that were discovered in Illinois and that forced Governor Ryan to take the action he did. In Illinois, it was not the criminal justice system that discovered its defects, it was undergraduate journalism students at Northwestern University who uncovered some of the cases of actual innocence. One person was on death row 2 days from his execution and ultimately the students were able to prove he was actually innocent.
The Chicago Tribune, a newspaper in Illinois, was responsible for some of the other proof of innocent individuals on death row, some 13 in Illinois. It was college students. It was the press. They were parties outside the criminal justice system who had to point out the defects in the system.
Now the same thing is happening in Texas tonight. The discussion should not end with media attention to this case. In fact, I was appalled this morning. I watch the Today Show every morning as I am getting up and reading the Washington Post. I felt I was watching the trial of a human being, a person who was about to be put to death, on a national television show in a brief segment between advertisements. This cannot be the way we administer justice in this country. In fact, I am very concerned about the way in which this is becoming almost a sideshow, somehow connected with the Presidential election.
In fairness to the Governor of Texas and in fairness to Vice President Al Gore, this should not be on their head as the Presidential election goes forward. They should not be put in the position of having to make these decisions as this country comes to the conclusion as to who will be the next President. It is a very unseemly environment in which to decide whether people should live or die. We have a special problem, and it happens that the State with the most executions occurring, the State with many of the executions coming up, happens to be the State of the presumptive Republican nominee for President.
It is a very uncomfortable situation when at the same time all of these questions about the death penalty are being raised. No one can say that this was somehow a partisan attempt to raise the issue because the person who really got this issue going, who really raised the question, is the Governor of Illinois, the chairman of Governor George Bush’s campaign in Illinois.
I plead that we get this issue away from the Presidential election. The only way we can do that is to have a credible and honest review of the fairness and justice in the system by which our Nation imposes the sentence of death. We should do exactly what Governor Ryan did in Illinois throughout this country: have a moratorium, a pause, during which a blue ribbon panel of pro and anti-death penalty people and other experts examine the issue.
We need a temporary halt to executions throughout America. Support for this is growing. California, more than any other State, including Texas, has the most inmates sitting on death row awaiting execution. In a poll of California residents released just today, almost two-thirds of Californians continue to support the use of capital punishment. But by a margin of nearly 4-1, the poll found that Californians favor a halt to executions while the death penalty is studied. I think that is very interesting. The vast majority still support the death penalty, but they do know that something is wrong and we need a pause.
I urge my colleagues to lead the American people and join me as cosponsors of legislation that would put a temporary halt to executions and establish the National Commission on the Death Penalty, the National Death Penalty Moratorium Act.
This rush to judgment concerning Gary Graham is not in keeping with American traditions and values of fairness and justice. I ask my colleagues to join in urging a pause before an innocent person is executed.
I yield the floor.
The case of Shaka Sankofa raises questions of both innocence and racism in the application of the death penalty. The case should have brought a halt to Texas executions nearly a decade ago, but it did not. Did the intersection of race and innocence cloud the question for some abolitionists? for the general public? Was the execution of an "innocent" black man somehow a less compelling case than it should have been??
A review of FROM LYNCH MOBS TO THE KILLING STATE: RACE AND THE DEATH PENALTY IN AMERICA, by Charles J. Ogletree, Jr. and Austin Sarat notes that,
the issue of racial discrimination has seemingly been pushed from the forefront in recent years within the abolitionist movement itself, particularly by allegations of actual innocence, and, most recently, the surge of litigation alleging the cruelty of current lethal injection procedures. In his independent contribution, Sarat chronicles and analyzes this shift toward highlighting actual innocence over racial disparities
The recent work of Sister Helen Prejean, The Death of Innocents and the efforts of the Innocence Project illustrates this point.
Still as a recent ACLU diary, Race and Death Penalty Links Run Deep and Wide, documents, race of offender and race of victim remain the most powerful predictive variables in determining death penalty prosecutions. Whites are rarely executed for killing blacks. This is true in Texas where the James Byrd case brought the issue to the fore. John William King was sentenced to death for this hate crime; If his death penalty is carried out, he will be the first white Texan executed for killing a black since slavery ended.
There is no separating the death penalty from racism. The execution of "innocents" is but one of many concerns. The focus on this aspect of the punishment enterprise in the USA may lead ulimately not to abolition but to more - to paraphrase Justice Blackmun- more mere "tinkering with the machinery of death".
The death penalty in the USA is a legalized lynch mob. Call it that and demand that it end -- regardless of "innocence" or guilt or if the state's murder victim is black or is white.
Had the words of Shaka Sankofa been heeded 9 years ago, Cameron Todd Willington might still be alive.
Executed Offenders State of Texas
Gary Graham #696 June 22 2000 Final Statement
I would like to say that I did not kill Bobby Lambert. That I'm an innocent black man that is being murdered. This is a lynching that is happening in America tonight. There's overwhelming and compelling evidence of my defense that has never been heard in any court of America. What is happening here is an outrage for any civilized country to anybody anywhere to look at what's happening here is wrong.
I thank all of the people that have rallied to my cause. They've been standing in support of me. Who have finished with me.
I say to Mr. Lambert's family, I did not kill Bobby Lambert. You are pursuing the execution of an innocent man.
I want to express my sincere thanks to all of ya'll. We must continue to move forward and do everything we can to outlaw legal lynching in America. We must continue to stay strong all around the world, and people must come together to stop the systematic killing of poor and innocent black people. We must continue to stand together in unity and to demand a moratorium on all executions. We must not let this murder/lynching be forgotten tonight, my brothers. We must take it to the nation. We must keep our faith. We must go forward. We recognize that many leaders have died. Malcom X, Martin Luther King, and others who stood up for what was right. They stood up for what was just. We must, you must brothers, that's why I have called you today. You must carry on that condition. What is here is just a lynching that is taking place. But they're going to keep on lynching us for the next 100 years, if you do not carry on that tradition, and that period of resistance. We will prevail. We may loose this battle, but we will win the war. This death, this lynching will be avenged. It will be avenged, it must be avenged. The people must avenge this murder. So my brothers, all of ya'll stay strong, continue to move forward.
Know that I love all of you. I love the people, I love all of you for your blessing, strength, for your courage, for your dignity, the way you have come here tonight, and the way you have protested and kept this nation together. Keep moving forward, my brothers. Slavery couldn't stop us. The lynching couldn't stop us in the south. This lynching will not stop us tonight. We will go forward. Our destiny in this country is freedom and liberation. We will gain our freedom and liberation by any means necessary. By any means necessary, we keep marching forward.
I love you, Mr. Jackson. Bianca, make sure that the state does not get my body. Make sure that we get my name as Shaka Sankofa. My name is not Gary Graham. Make sure that it is properly presented on my grave. Shaka Sankofa.
I died fighting for what I believe in. I died fighting for what was just and what was right. I did not kill Bobby Lambert, and the truth is going to come out. It will be brought out.
I want you to take this thing off into international court, Mr. Robert Mohammed and all ya'll. I want you, I want to get my family and take this down to international court and file a law suit. Get all the video tapes of all the beatings. They have beat me up in the back. They have beat me up at the unit over there. Get all the video tapes supporting that law suit. And make the public exposed to the genocide and this brutality world, and let the world see what is really happening here behind closed doors. Let the world see the barbarity and injustice of what is really happening here. You must get those video tapes. You must make it exposed, this injustice, to the world. You must continue to demand a moratorium on all executions. We must move forward Minister Robert Mohammed.
Ashanti Chimurenga, I love you for standing with me, my sister. You are a strong warrior queen. You will continue to be strong in everything that you do. Believe in yourself, you must hold your head up, in the spirit of Winnie Mandela, in the spirit of Nelson Mandela. Ya'll must move forward. We will stop this lynching.
Reverend Al Sharpton, I love you, my brother.
Bianca Jagger, I love all of you. Ya'll make sure that we continue to stand together.
Reverend Jesse Jackson and know that this murder, this lynching will not be forgotten. I love you, too, my brother. This is genocide in America. This is what happens to black men when they stand up and protest for what is right and just. We refuse to compromise, we refuse to surrender the dignity for what we know is right. But we will move on, we have been strong in the past. We will continue to be strong as a people. You can kill a revolutionary, but you cannot stop the revolution. The revolution will go on. The people will carry the revolution on. You are the people that must carry that revolutionary on, in order to liberate our children from this genocide and for what is happening here in America tonight. What has happened for the last 100 or so years in America. This is the part of the genocide, this is part of the African (unintelligible), that we as black people have endured in America. But we shall overcome, we will continue with this. We will continue, we will gain our freedom and liberation, by any means necessary. Stay strong. They cannot kill us. We will move forward.
To my sons, to my daughters, all of you. I love all of you. You have been wonderful. Keep your heads up. Keep moving forward. Keep united. Maintain the love and unity in the community.
And know that victory is assured. Victory for the people will be assured. We will gain our freedom and liberation in this country. We will gain it and we will do it by any means necessary. We will keep marching. March on black people. Keep your heads high. March on. All ya'll leaders. March on. Take your message to the people. Preach the moratorium for all executions. We're gonna stop, we are going to end the death penalty in this country. We are going to end it all across this world. Push forward people. And know that what ya'll are doing is right. What ya'll are doing is just. This is nothing more that pure and simple murder. This is what is happening tonight in America. Nothing more than state sanctioned murders, state sanctioned lynching, right here in America, and right here tonight. This is what is happening my brothers. Nothing less. They know I'm innocent. They've got the facts to prove it. They know I'm innocent. But they cannot acknowledge my innocence, because to do so would be to publicly admit their guilt. This is something these racist people will never do. We must remember brothers, this is what we're faced with. You must take this endeavor forward. You must stay strong. You must continue to hold your heads up, and to be there. And I love you, too, my brother. All of you who are standing with me in solidarity. We will prevail. We will keep marching. Keep marching black people, black power. Keep marching black people, black power. Keep marching black people. Keep marching black people. They are killing me tonight. They are murdering me tonight.