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Texas Panel Allows Graham Execution to Proceed

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

LOU WATERS, CNN ANCHOR: OK, we are going to Huntsville, the prison, and the announcement.

LARRY FITZGERALD, PRISON SPOKESMAN: The board has decide not to recommend the 120 day reprieve, commutation of the death sentence to a lesser penalty or a conditional pardon. The vote is as follows: 120 day reprieve, the board voted 14 to 3 not to recommend a reprieve; commutation to a lesser penalty, the board voted 12 to 5 not to recommend commutation; conditional pardon, the board voted 17 to nothing not to recommend a conditional pardon.

The chairman of the board, Gerald Garrett, of the Board of Pardons and Paroles stated, "The members of the Texas Board of Pardons and Paroles are fully aware that the responsible we have in rendering our votes as part of the executive clemency review process. I can say unequivocally that the board's decision not to recommend clemency was reached after a complete and unbiased review of the petition and evidence submitted."

one final footnote, one board member is on administrative leave due to a death in the immediate family and did not cast a vote. Mr. Kastleberry (ph) has the actual press release from the Texas Board of Pardons and Paroles, and we'll pass them out.

Thank you.

WATERS: All right, that's the decision announced from the prison. It was suppose to be a paper release by fax. The prison agreed to read it to us and you heard it. No reprieve for Gary Graham by a vote of the board of 14 to 3; no lesser penalty be imposed on a vote of 12 to 5 by the board; and for a conditional pardon a vote of 17 to nothing against. You will note there are 18 members on the board. There are 17 votes, one of the members was absent. We are next waiting to hear from Governor Bush -- Natalie.

NATALIE ALLEN, CNN ANCHOR: And again, his lawyers have said he will make a final appeal to the U.S. Supreme Court. His execution set now just a few hours from now.

Let's go to Charles Zewe, who is outside the prison in Texas -- Charles.

CHARLES ZEWE, CNN CORRESPONDENT: Well, Natalie, the growing group of protesters outside of the Walls unit here where the death chamber is housed have just learned of the decision from the state pardons board, and they have struck up chants of "murderers, murderers." They have been in larger and growing numbers for the last hour or so. That group is expected to get a great deal bigger as execution time approaches. The execution still set for 6:00 Central time.

Today, as you said, lawyers for Gary Graham told us a couple of weeks ago they anticipated this moment. They said they had prepared a last minute appeal to the United States Supreme Court, including a very rare request from the high court that the court take direct jurisdiction over this case and actually hear evidence. That has only been done once in the last 18 years, in 1920s. So it is a very rare move, but the lawyers are trying anything they can in an 11th hour attempt to save Graham's life.

Graham was visited earlier today by the Reverend Jesse Jackson and Bianca Jagger of Amnesty International, along with his mother and his spiritual adviser. He has not been eat anything. he has not made a last meal request, consuming two cups of coffee since he was put in a holding cell only a few feet from the death chamber itself.

The schedule of events what happens next? They will wait for the high court to decide whether it will take jurisdiction here. If there are any further legal moves they will probably be dispensed with rather quickly. The courts, in these kinds of cases, once the state pardons board has acted tend to act with sort of a almost programed efficiency in disposing of these case.

The last time I was here covering an execution, it wasn't until 5:30, 5:40, for a 6:00 execution, that we learn from the Supreme Court that the execution was cleared to go ahead.

So now the process of execution begins, unless, again, the high court steps in and stops it, it will still go on at 6:00. What will happen from here on, for the rest of the afternoon is that Graham will be kept in a holding cell until just after 5:00 Central time, when we will be taken out of his cell, brought in to the execution chamber, laid down on that gurney, that sort of operating table looking bed. He will be strapped down with big leather straps, an IV will be installed in his arm.

Then, at around 6:00, that is the authorized hour for executions, he will be asked by the warden if he has anything to say. He will be given a chance to make a final statement, and then the flows of the three chemicals, one to knock him out, stop his breathing, and stop his heart will be given to him -- Natalie.

ALLEN: Well, Charles, are the protesters near-by, and can you hear what they are saying now?

ZEWE: They are still shouting out, calling the Pardons Board and Governor Bush murderers. They are the chants have been increasing in frequency and vehemence over the last few days. Again, a large number is expect at around 6:00 tonight, at the time of execution.

They are a well controlled crowd right now. There are several hundred prison guards, along with Texas state troopers and Texas rangers on hand here to keep the peace. So far, there haven't been any incidents of any type here -- Natalie.

ALLEN: All right, well, we are just now seeing the view from what you are seeing outside the prison there, and we will continue to be in touch with you as the afternoon ticks on.

Charle Zewe, in Huntsville, thanks.

WATERS: We have our legal analyst Greta Van Susteren with us from Washington. I heard you say earlier, Greta, there wasn't much chance of this working for Graham with the Texas Board of Pardons and Paroles, and of course you have been borne out.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: Well, you know, I think, Lou, my thought still stands. I mean now to go to the United States Supreme Court. I have actually filed these petitions in my past life as a criminal defense lawyer, and there's a rush to the United States Supreme Court. It has probably been faxed to the court already right now, and it will go to the justices, for the justices' consideration. But it is very unlikely, you know it is not impossible, but it is unlikely that the Supreme Court will stop this execution.

I suppose where Gary Graham's lawyers are hoping is that the whole issue of access to court, or the fair process, will be what the Supreme Court would think has been denied him in this case because there's a serious issue about whether or not he had effective assistance of counsel, and the justices may be troubled by the fact that the only evidence tying him to this case is the eyewitness testimony of a women who is quite certain she's right. But everyone knows that identifications can be wrong. So perhaps, you know, the Supreme Court may hold -- hang its hat on that. But it seems extremely unlikely. The Supreme Court has not been particularly receptive to death penalty cases in the past. It is a very conservative court. And of course, what the courts always say is that these issues should have been raised before or that courts have already considered it. But defense lawyers say that is not true. But that is where the battle will be in the Supreme Court.

WATERS: There are death penalty supporters who will say: Gary Graham has had more than his opportunities with court. We note that the Supreme Court has ruled in this case before, what are they ruling on again?

VAN SUSTEREN: You know, that's where the rub is, Lou, with defense lawyers. Here's what happened is a number of years ago, new defense lawyers, not his trial lawyers who did a very poor job in this case, they presented no evidence, and this capital case took about three days. And if you compare that even like to the O.J. Simpson case, which took almost a year, this was about three days. They didn't call the other two witnesses who saw someone fleeing the murder, and who were not able to identify Gary Graham as the culprit, as the murderer.

And what has been happening is for the last 10 years or so the new defense lawyer has been trying to get a court to listen to these witnesses and to reconsider the issue whether or not Gary Graham should be sentenced to death.

But here is the problem is that there are rules as to when you can go back to court, and what the courts have said is, following the rules, he has had his chance. It is too late. It's a technicality. The courts have never heard from these other eyewitnesses, and what has happened is the door is shut because of technical rules.

And what the prosecution say: Hey, look, as the case has gone through, and as every court has said: Door is shut to you. Door is shut to you. Door is shut to you. That is what they claim is court consideration of the matter. Defense lawyers would say, no, when you talk about listening to the case or considering it, you actually hear from the witnesses, you don't throw up a rule and say, too late. That's the fight between the defense lawyers and the prosecution.

WATERS: We'd thought all along that the Texas Board of Pardons and Paroles was considering putting Graham to death or not putting him to death. Now we understand they considered a reprieve, a lesser penalty, conditional pardon. And it was not unanimous on all of those counts, so there's some doubts within the Texas Board of Pardons and Paroles. Might this later be a political problem for George W. Bush?

VAN SUSTEREN: Well, you know, we have Bill Schneider, our political analyst, standing by and I think he's much more capable of answering that question than I am, Lou, because he's such a student of the political system.

You know, I will say this, though: With the popularity of the death penalty in this country, I don't think it's such a huge political issue. But the fact is that the popularity has been declining as more and more people have been exonerated. Even a Republican governor in Illinois has put a moratorium on death penalty in position in the state of Illinois because 13 people -- I think it's 13 -- have actually been exonerated -- people on death row. And New York State has had a number as well. So maybe the popularity will go down, maybe it'll have an effect.

WATERS: OK, Greta, I understand that Bill Schneider's hooked up.

So, Bill, what do you think? What are the ramifications here politically?

WILLIAM SCHNEIDER, CNN SR. POLITICAL ANALYST: I think the most important ramification is the way that George W. Bush handles this issue. He claims he has no further jurisdiction, that he can't act unless the Board of Pardons recommended one of these possibilities, commutation or reprieve or conditional pardon, and they did not. He says it's out of his hands. There are some who would argue with that, by the way, but he claims he cannot give another stay for 30 days.

The question is his seriousness. His -- does he give this matter sober reflection? This is a matter of life and death, and questions have been raised about the seriousness with which George W. Bush treats the death penalty and other issues. Is he prepared to be president? He has in the past been fairly perfunctory, even dismissive in his comments about the death penalty, including a widely criticized statement a few weeks ago where he said -- and he's repeated this many times, quote: "There is no doubt in my mind that each person that has been executed in our state was guilty of the crime committed."

Now, that's been criticized because a lot of people thought that was a very dismissive comment, that he should be much more reflective and sober about these decisions. And to just make that assumption after 134 executions was probably a bit dismissive.

So, we're going to be listening very carefully to what he has to say about this case and how deeply and carefully he's thought about it.

WATERS: All right, Bill Schneider in Washington.

Natalie, what's next?

ALLEN: Let's see what more Candy Crowley can add. She's outside the governor's mansion and she's been following his campaign closely.

What position might the governor be in now, Candy?

CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT: Well, basically, as they read Texas laws -- the attorney general's office here in Texas reads Texas law, there's nothing George Bush can do at this point. That's because his singular power would be to grant a 30-day reprieve. But as they read the Texas law here, a 30-day reprieve has already been granted this inmate. It was granted by Ann Richards. They say that means that George Bush is powerless to stop this at this point.

Picking up on what Bill said, certainly there has been a somber mood over the past couple of days as the governor has talked to us aboard the plane and in a press conference yesterday about his thinking on this. He hasn't said much other than he will uphold the law, that he looks at two things, guilt and innocence, and whether there's been full access to the courts.

Yesterday, we had a very somber, very muted news conference at which most of the questions were about this case. So, in terms of how he carries himself, that seems to be something that has weighed heavily on his mind and he has had a rather somber way of approaching this question, in front of us, at least, over the past couple of day.

ALLEN: Do you expect we'll hear from him at all this afternoon?

CROWLEY: I think there's a possibility. We don't know that for sure. In the Carla Faye Tucker case, as you remember, lone female who did also -- the execution was carried forth, that also was a big case. The governor did talk about that after making his decision. I suspect he might, but I wouldn't be surprised if he didn't.

ALLEN: Has his campaign expressed concern about the future if this execution takes place tonight? He certainly has been dogged by protesters all this week who have interrupted him trying to do his bid out on the campaign trail.

CROWLEY: Sure. Just to give it a little perspective, there were two fund-raisers back -- one night and then the next night at which two people in each fund-raiser did manage to get in, raise flags. They were quickly taken out. The protests we've seen were, you know, anywhere from a dozen to two dozen people. This has not been a major disruption, but, you know, certainly it's something that catches the camera's eye, and certainly it's something that he is aware is out there.

I can tell you what George Bush has said about this: If I suffer from this politically, then I suffer from this politically. This is what I have to do. I carry out the law. That's my role as governor of Texas.

As far as his campaign, I tried a couple times to get those on his staff either to go on the record or talk on background about what they think the political implications of this are and they won't do it. So we are in a spot where they don't want to look as though there is anything political about this. They know that the worst thing that can be, no matter what the decision of George Bush or what the demeanor, the worst thing could be that he makes a decision one way or the other because he thinks it helps his campaign. He has ruled out that he would do such a thing and said, look, you know, let the chips where they may. This isn't about politics, it's about my duty as governor.

ALLEN: Candy Crowley outside the governor's mansion this afternoon.

And now here's Lou.

WATERS: And Bill Schneider, Al Gores has been silent on this until yesterday when he came out. And I'll quote him: "If you're honest about the debate, you've got to acknowledge there are small numbers of errors. Now both Bush and Gore are death penalty supporters, so how do you expect, or do you expect this debate to flower during the presidential campaign.

SCHNEIDER: I seriously doubt it's going to become a major issue. Both Bush and Gore, and for that matter, President Clinton support the death penalty. It became a touchstone issue for self-defined New Democrats, who moved in in 1992 with Bill Clinton's campaign. Their support of the death penalty was a way of showing the voters that they were not outside the mainstream. They were not Michael Dukakis, that they were willing to support what the vast majority of Americans then and even now continue to support, though doubts have been growing.

I do not think that Gore or most Democrats see much advantage to them in bringing out this issue for debate. Still two-thirds of Americans support the death penalty. The interesting point is that is down from 80 percent in 1994, which indicates people are beginning to have second thought, but they have not turned against it.

WATERS: All right, senior political analyst Bill Schneider in Washington. Again, the Texas Board of Pardon and Paroles had recommended to the governor of Texas, George W. Bush, that the execution of Gary Graham be carried out in Texas 6:00 p.m. Texas time this evening, in just a few hours from now.

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