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Countdown to Gary Graham's Execution in Texas

Aired June 22, 2000 - 7:02 p.m. ET




UNIDENTIFIED MALE: Gary Graham shot me. I was an eyewitness to Gary Graham. He is a cold-blooded murderer. Justice will be done, and I feel confident that tomorrow morning the streets of Texas will be a little safer.



REVEREND JESSE JACKSON, FOUNDER, RAINBOW/PUSH COALITION: Those who are poor or black or brown or incompetent counsel tend to die.


JOIE CHEN, CNN ANCHOR: It's 7:00 p.m. on the East coast. It is 6:00 p.m. in Huntsville, Texas. At this hour convicted murderer Gary Graham is scheduled to be put to death within the hour.

Hello. I'm Joie Chen at CNN center in Atlanta.

We are awaiting word from Huntsville, Texas and from Washington, D.C. on the fate of Gary Graham. He was scheduled, as we said, to be put to death by lethal injection 6:00 p.m. Central time, 7:00, right now, Eastern time. But that has been delayed until after the Supreme Court reaches its decision about Graham's appeal.

Graham was sentenced to death for 1981 shooting of Bobby Lambert. Graham was convicted primarily on the testimony of a single eyewitness who insists that Graham was indeed the gunman. But Graham insists the witness is mistaken.

There has been an outburst by death penalty opponents in Huntsville, Texas in just the past few minutes.

CNN's Charles Zewe is standing by outside the prison now and joins us with the latest there -- Charles.

CHARLES ZEWE, CNN CORRESPONDENT: Joie, as far as we know as you just reported, the execution is on hold, but tensions are very high outside of what is known as "Walls Unit" where the death chamber is located.

Let's show you what happened just a few minutes ago, when dozens -- several dozen protesters broke through police lines. They sprinted through the police lines after a very peaceful day -- peaceful afternoon of protest, and were quickly wrestled to the ground and arrested by Texas state troopers and Texas rangers, along with prison guards who were stationed here just to prevent that very thing from happening.

Gary Graham and his supporters have vowed they would use violence, if necessary, to try to prevent him from being executed. At this hour, just ahead of 6:00 Central time, they broke through the lines and started running through the area right outside the prison walls, but were quickly apprehended by police.

There is a huge police presence here right now. Several hundred officers are on hand in the streets outside the prison. You can see the scene -- lots of demonstrators. What had been a crowd of perhaps 100 demonstrators, anti-death-penalty demonstrators -- at the most for most of this day, suddenly swelled to a crowd of 400 or 500 demonstrators, who have been chanting, accusing Governor George Bush, the Texas governor, of genocide and of turning a deaf ear to man who they claim is innocent.

Graham, of course, has maintained his innocence for shooting a man to death 19 years ago outside of a Houston supermarket. But courts, numerous courts, have turned his claims aside. The demonstrators have been demanding that Graham be given a stay of execution here, that he be given new trial, in effect, because they claim that the single eyewitness who was largely responsible for his conviction was mistaken, that there were other witnesses who could have cleared him.

So the situation is this right now outside the prison. You can see the protesters now burning an American flag outside of the prison. This is the first nasty turn along with the breaking through the police lines in the protest outside the prison today.

If fact, Graham himself has encouraged his supporters to try to use violence to break up his execution and to prevent his execution when they were taking him out of his death row cell at the Terrell Unit, which is in Livingston, Texas not far away from here yesterday.

Last night, in fact, he resisted. He had to be subdued by a team of prison guards. He was brought to the death chamber here, put in a holding cell only three feet away from the gurney where he may or may not be strapped at this hour, awaiting a final word from the Supreme Court on whether he must die. And he said to his spiritual minister earlier today, that he thought it was his duty -- his duty to resist violently any attempts to execute him.

Right now, they're waiting. The witnesses for the victims' families, the victims -- the witnesses for Gary Graham, that include Jesse Jackson and Bianca Jagger of Amnesty International along with Reverend Al Sharpton, and Gary Graham's minister, all waiting in one part of the witness room. It's a witness room that's divided in two parts. one for the government witnesses, family witnesses, and another for the family of the person being executed. They are waiting right now to see what happens.

Prison spokesman Larry Fitzgerald a little while ago described the process once the execution finally gets under way.


LARRY FITZGERALD, PRISON SPOKESMAN: Right now, should the execution be carried out, Gary Graham will be removed from his cell at 6:00. He will be taken to the execution chamber, which is a scant few feet away. He'll be strapped to the gurney. The IVs will be established. Once the IVs are established the witnesses will be escorted into the execution viewing area, and the process will begin.


ZEWE: And that's expected to happen shortly. Joie, back to you.

CHEN: CNN's Charles Zewe for us at Huntsville, Texas.

We want to report a very late development now from Washington, D.C. CNN has confirmed now that the Supreme Court has denied Graham's appeal asking for a stay of execution. There again, are reporting from Washington, D.C., and the nation's high court is that the court has decided to deny Graham's appeal for a stay of execution.

CNN legal analyst Greta Van Susteren now joins us from our Washington bureau.

Greta, if you can put this all together. Today has been full of a lot of late developments. I'm not sure how much of this is typical of a last day in a death penalty process, but I want you to give some framework. Walk us through what happened today, and why it worked out this way.

GRETA VAN SUSTEREN, CNN LEGAL ANALYST: You know, Joie, this is actually a blueprint for how each case is handled when you have effective lawyers. And Gary Graham has had very good lawyers in the last few years. What had to happen today is that the Graham lawyers had to hear from the Texas Board that they would not do anything to stop the execution of Gary Graham, so they go to the last resort.

The last resort is the United States Supreme Court and what there is is a flurry of activities. There's a quick rush to file pleas in the United States Supreme Court. And in my best guess, is that these pleadings were prepared yesterday or the day before because time is of the essence here. You are up against a clock. The clock is ticking away. And, of course, now the clock really has ticked down to zero because the Supreme Court has denied the request to stop the execution. And now it's just a matter of the state of Texas executing Gary Graham.

CHEN: Greta, let's back up a little bit and talk about the Texas Board of Pardons and Paroles. In their -- a lot of pressure has been placed on Governor George W. Bush, the governor of Texas, and of course, the expected Republican contender for the presidential nomination. But today's decision actually had to come from the Board, not from Bush himself, right?

VAN SUSTEREN: That's right. Once the board acted, George W. Bush's hands -- my understanding according to the Texas law -- were tied. But the big debate is that many people think that George W. Bush could have made an indication to them prior to the decision, which would have influenced their decision. Had they voted to give him some sort of conditional pardon or reprieve, then of course George W. Bush could then carry it out. Obviously, he has elected not to.

What's sort of interesting about this process, though, Joie, is that you have the sense that this is some sort of deliberative process. But in Texas, they actually sort of fax in their votes. Each member of this board -- and there are 18 members of the Board. They're all appointed by the governor. They're paid $80,000 a year. And their job is to rule on issues of pardon and parole. And then they fax in their vote. It's not an deliberative process, that they don't sit around a room and weigh the evidence, and say, look, what do you think about the fact that there is only a single person who has identified this particular man. Is this the type of case that we think that the person should be put to death or not? It isn't like that. They actually just voted and tally up the votes, and however the votes fall, that's the decision.

CHEN: And, Greta, let's go back then to Supreme Court and its action. You say that the lawyers most likely had prepared their appeal, have prepared this, expecting that something like this might happen from Texas board today, and then moved quickly to the Supreme Court. What happens there? What was the process for the supreme court this afternoon?

VAN SUSTEREN: Well, the Supreme Court has gone through this drill, many times before. I mean in even the state of Texas, in the last since George W. Bush has been governor they have gone through probably 135 times, so I think 135 people put the death under Governor Bush. They know it's coming, they're ready for it, and they have certain procedures. They wait for the petition to arrive at the court, and then they provide it usually to justice overseas that particular circuit. My understanding is that Justice Scalia was the one who first got the petition. He then considers it, and the other members of the court can weigh-in on it. They can vote to give a stay or not give a stay, but even if they had voted to give a stay, it doesn't mean that Gary Graham would never have been executed. It would have simply put things on hold while they considered any issues that they thought had merit, any issues presented by Gary Graham's lawyers.

But it very common for the court to get these, and in a matter of hours, they issue their decision denying the state, so there is nothing particularly unusual about this. This is something death penalty lawyers see in every particular case. This is the blueprint, this is the drill, and this has been the very common result in death penalty cases in the last decade or so.

MORET: Greta, we want to talk a little bit more about legal process and the death penalty. Let's hear from a comment made earlier today by the Texas attorney general about Mr. Graham's case and the kind of opportunity he has had for appeal.


JOHN CORNYN, TEXAS ATTY. GENERAL: Mr. Graham has been allowed to present his claims to more than 30 different judges and more than 20 different appeals over the last 19 years. His claims have been reviewed over and over again during those 19 years since he was convicted of killing Bobby Lambert. All of his claims have been found to be without merit.


CHEN: Greta, listening to Mr. Cornyn talk about the appeals that Graham has had, is this a standard number of appeals? Is this the process that a candidate normally goes through in the death penalty process? Is there anything unusual in the number of appeals he had?

VAN SUSTEREN: Well, it's not unusual, Joie, but what may be not entirely true -- and Jack Zimmermann appeared on CNN last night. He is one of the lawyers for Gary Graham. He was on NEWSSTAND last night. He talked about the fact that he really didn't have access. They went to the courthouse door about 30 times, but a technicality kept them from crossing the threshold to have the issue considered by the court. What Graham's lawyers wanted the court to consider was the testimony of two eyewitnesses to the man who fled the scene wearing a white jacket, everyone agrees was the murderer, back in 1981. And a technicality kept having every court slam the door on Gary Graham. They say, hello, Gary Graham, it's too late, we're shutting the door, go to the next court. Prosecutors count that as going to court. Defense lawyers say that's not a hearing, you've got to actually get in and hear the witnesses. But a technical rule has kept this particular issue out of the court for a number of years. No court has heard the eyewitness testimony of the two witnesses the defense wishes to present that were witnesses to the aftermath of the homicide.

Now one other thing I need to point out to you is that Gary Graham's lawyers at trial, which were different lawyers, never called these other eyewitnesses, so the jury never had an opportunity to hear them. And what's sort of interesting is in the petition that defense lawyers filed with the board of paroles, they attached affidavits, and the jurors said, this would have made a difference to them, probably.

CHEN: CNN Legal analyst Greta Van Susteren. We'll ask you to standby for a moment. Our viewers have been looking here on our screen now at a scene outside the prison at Huntsville, Texas, where Gary Graham is set to be put to death within the hour. As you can see, a large group of protesters gathered out there, a group that has been growing, we understand from CNN's Charles Zewe on the scene, through this afternoon. And in incident about 20 minutes ago, protesters broke through a line, a police line there, and trying to demonstrate their opposition to Graham's execution. CNN's Charles Zewe is standing by there now.

And, Charles, it looks again like this group is trying to make its position quite know, quite loudly here. ZEWE: Indeed, Joie, in fact, just a couple of minutes ago, a couple, three minutes ago, they tried to break through the police barricades. Apparently they were pushed very strongly. People you can see now hugging in the streets. This is literally at the execution time, or when we think the execution is either underway or about to get underway momentarily. The time in these things here in Texas almost always coincides to about 6:15, 6:17. The whole process takes seven minutes once injection begins. The protesters have been pushed back off those barricades now by Texas State Troopers in riot gear. They are wearing riot helmets. They have billy clubs. They also have gas masks strapped to their belts, their gun belts. There have been no indication that they plan to do anything about that or use gas here, but they did push the demonstrators back off the barricades a little bit.

As far has to process itself goes, it only takes seven minutes. The inmate on the gurney is given injection to sedate him, to knock him out, then he's given a second drug to collapse his diaphragm and lungs, and then finally a third drug to stop his heartbeat, and presumably, that is what's going on right now. Before all of that begins, though, he is asked to make a last statement. Many inmates do. Some do not. This particular inmate refused a last meal, although on five previous occasions, this is the sixth time that Gary Graham over 19 years has come down to an execution -- come within day of execution. He picked out five previous meals. He did not this time. He has only asked for a couple of cups of coffee since he was brought here to prison last night.

CHEN: Charles, let me break in here and ask you a little bit more about these protesters. You said that this group gathered quite suddenly, that it had been a fairly small group and then ratcheted up late in the afternoon. Is it clear where these people have come from? Are they local people? Were they bussed in?

ZEWE: We saw several busloads of people arriving earlier in the day. Late in afternoon, we could see people walking in groups of twos, and threes, and fives and tens down toward the prison itself, toward the corner on west side of the Walls Unit, where they're being allowed to protest by police. It's at that point where the demonstrators, you know, really started to mass, and as within the last half hour, got out of hand. We expect that shortly there will be a big display of emotion when the witnesses come out the front door of the prison, because that is almost certainly the sign that the execution is at an end.

What happens then, after the official witnesses exit, both the witnesses for the state, the witnesses for the person being executed, leave, then there is usual press conference in which they announce the details of the execution and the last words, if there were any. Again, we expect that because the Supreme Court has now ruled finally in the case that that process is under way -- Joie.

CHEN: Charles Zewe, we'll ask you to standby at Huntsville, Texas. Gary Graham, if he's put to his execution will become the 23rd inmate put to death in Texas just this year. His would be 135th in the career of Texas Governor George W. Bush. CNN's Candy Crowley is standing outside the governor's mansion in Austin, Texas with the latest there.

Candy, Has the governor issued any sort he sort of statement about Graham today?

CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT: No, not today, Joie. As you know, we have had several chances to talk to him over the past couple days on the campaign trail, because the issue has come up. But this has been a very low key day for the governor. He was spotted heading into and out of the statehouse here. He was expected to do some business. There was a meeting planned at least for regional reporters. There was, as well, a meeting that the governor expected to have with his chief counsel.

But by and large, it has been very quiet here, certainly compared to what you're hearing from Charles. As far as demonstrators are concerned, they are on the other side of the governor's mansion, which is where I'm standing, there has been a crowd that has gathered, about 100 or so. From time to time, in fact, they come around but it is a very peaceful group, that has come, carrying signs, calling for a moratorium. calling for end to the death penalty, that kind of thing. But it is, again, a very peaceful, and relatively small crowd of about 100.

We do expect that we will hear from the governor at some point. As you know, this has been a very high-profile case for him. He has been aware of the pressure of the spotlight, but he has told us and did so yesterday, that if there is political fallout, then there is, that he needs to abide by the law and that he needs to carry out his duty as governor of Texas.

And as you mentioned at the beginning of the show, it is the position of Governor Bush, and of the attorney general and of the lawyers around them, that George Bush, should the parole board, as it did, decide to go ahead with execution, there was nothing he could do to stop it at this point. So we expect to hear from him later, but it's been a very low-key down day in Austin for the governor.

CHEN: Nevertheless, Candy, the governor, given the amount of attention given to this particular case, has he been staying in close touch with what is going on at Huntsville and in Washington as well? Is there some sort of hotline of inflation for him?

CROWLEY: I can't tell you if there is. I judge that of course that he is keeping close tabs on this because of the amount of attention that is on it, because as governor, he obviously was waiting for the parole board. He's told us over the past couple of days that he has been talking with his counsel about the case, that he has been studying the case, and I judge that over the course of today, knowing that the national spotlight was here, that of course, he was keeping up with what was going on in Statesville, and what going on in Washington D.C.

CHEN: CNN's Candy Crowley in Austin, Texas for us. Vice president and Democratic presidential candidate Al Gore of course has not escaped debate surrounding death penalty, as has Mr. Bush. On campaign stop today in Minnesota, Gore was asked about the possibility that innocent people could be put to death because of flaws in the system.


AL GORE, VICE PRESIDENT OF THE UNITED STATES: No mistakes are tolerable. The number of errors should be zero, but those who support the availability of the death penalty -- and there is a big argument in the country whether it should be available, on moral grounds. But those who support the availability of the penalty, as I do, have to acknowledge that even the finest system of justice will inevitably, over long periods of time, produce some errors.


CHEN: Gore said if evidence shows that certain states have a higher number of false convictions, then it should be up to governors and state lawmakers to review their own systems.

CHEN: CNN's Charles Bierbauer covers Supreme Court issues for us, and of course is standing by, as the Supreme Court just this hour refusing to issue a stay of execution in the Gary Graham case. Charles is with us with now with some details from our Washington bureau -- Charles.

CHARLES BIERBAUER, CNN CORRESPONDENT: Joie, the Supreme Court actually did two things. What happened here the process was that the appeal went first to Justice Antonin Scalia, as the justice who's in charge has oversight for the 5th Circuit, and the he circulates this petition around to the rest of justices. It denied first the petition for a stay of the execution and then court also denied the petition for the court to hear Mr. Graham's appeal, so they denied the writ as well. We're told that the vote on the stay was 5-4, with the four dissenting justices being Justice Stevens, Justice Suitor, Justice Ginsburg, and Justice Breyer. All four of those would have granted the stay of the execution, but the five other justices said that this should go ahead. Justices Ginsburg and Breyer are of course appointees of President Clinton. Justice Suitor is an appointee of former President Bush and Justice Stevens, the longest serving member of the court, and the one who is most often opposed to death penalty in any manifestation -- Joie.

CHEN: Our legal analyst Greta Van Susteren is also with you in the Washington bureau, Charles.

Listening to what Charles Bierbauer is telling us, Greta, can you give some perspective, the numbers or the decisions themselves, and what they might mean, whether there was anything new to that.

VAN SUSTEREN: Well, you know, Joie, I'm sure it's very troubling to the lawyers down in Texas who represent Gary Graham -- 5-4 is as close as you possibly can get. Of course, the fact that Justice Suitor is one of those would have voted to stay the execution is significant for lawyers as they study opinions. Getting away from the real seriousness and practical affect of what's going on right now in Texas. What lawyers will study for many years to come is the fact that Justice Suitor, who was appointed by the governor's father and who many people thought would vote more consistent with what governor's father thought in terms of death penalty, is the one who voted tonight to stay execution. So certainly, from a theoretical and a historical viewpoint, it's interesting. But as a practical matter, 5-4 is as close as you can get.

CHEN: From either one of you -- I guess, Greta, maybe you can help me with this. Is the appeal, the appeal made by the Texas lawyers on behalf of Graham, does that detail specific new information about his case, things they would have liked to have presented? Or is it more of a pro forma, here's the legalese what we're trying to do here?

VAN SUSTEREN: It is almost a plea for mercy at this point, Joie. I mean this is the last effort, this is the last door of hope. This is the only place they could go for hope. And what they say to the court is, look, this is not the case where someone should be executed. They had don't say the death penalty is a bad thing; what they say this particular case is one that does not warrant going forward tonight, please stay it because there are important issues. The lawyers have said from day one, they have said that their client is innocent. They have also said that their client had an ineffective lawyer, that this trial only took a couple days down in Texas, a capital case that took less than a week to try, and that the lawyer himself at trial didn't call any witnesses on Gary Graham's behalf, and thought Gary was guilty himself. So the cards were stacked against Gary Graham from the very beginning. They have said since that point, they have wanted to bring forth eyewitnesses to the crime and that they have been shut down at every single opportunity.

So basically it's a plea of mercy to United States Supreme Court, because when you litigate something over 17 years, there isn't a whole lot left when you get to that final last plea to United States Supreme Court. But I'll tell you one thing, Joie, I'm actually surprised it was this close, 5-4. This has not been a particularly sympathetic Supreme Court to please from lawyers on behalf of those who are on death row and who are facing a ticking clock.

BIERBAUER: Joie, could I add something to this, because this court did indeed just the other day grant a stay in case in Virginia, and just other week overturned a death penalty conviction in the state of Virginia, and largely based on incompetent counsel. So it may not be particularly sympathetic, but it does read very carefully the law here.

A couple of footnotes. A month ago, Mr. Graham was also denied a stay by the U.S. Supreme Court, so this is not particularly surprising. And as for Justice Suitor, yes, it is probably more a footnote, because he has fairly consistently voted with this particular group known as somewhat the liberal wing of their court. No one is particularly surprised by the court's decision in this case.

VAN SUSTEREN: You know, Joie, one of the problems that the defense lawyers have had from this case is that Gary Graham has been -- is a horrible man. He's committed a lot of crimes, and that makes it very difficult to persuade anyone to spare a life.

CHEN: All right, Greta Van Susteren, Charles Bierbauer, for us in our Washington bureaus, as well as CNN's Charles Zewe for us Huntsville, Texas. We're looking there at live pictures from Huntsville, Texas, as a clock ticked down on the life of Gary Graham, we understand, as well as the protests outside the penitentiary in Huntsville.

Again, the Supreme Court in this hour has turned down Gary Graham's appeal calling for a safe execution and has turned down appeal for the court to hear his case, again.

CNN's coverage will continue after a short break here. We'll turn to "CROSSFIRE" and its assessment and analysts. We hope you stay with us for more coverage as we bring you the latest details from Huntsville, Texas.

UNIDENTIFIED MALES AND FEMALES: No justice, no peace! No justice, no peace! No justice, no peace! No justice, no peace! No justice, no peace!


CHEN: Hello, I'm Joie Chen at the CNN Center in Atlanta. We've been bringing viewers live coverage from Huntsville, Texas, getting the very latest as the clock down toward the execution of Gary Graham. In the last hour, the U.S. Supreme Court turned down Graham's appeal for a stay of execution, as well as an opportunity to have his case heard at the Supreme Court level. You see there the protesters, as we understand, several hundred protesters, have gathered outside the prison at Huntsville, Texas and have broken through about 35 minutes ago a police line there, trying to show their displeasure at the execution of Gary Graham.

CNN's live coverage continues now with our "CROSSFIRE" host Bill Press and Mart Matalin in Washington.

UNIDENTIFIED MALE: Brothers and sisters, listen up!



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