Tuesday, July 13, 2010

The Shaky Case of the Despicable Gary Graham

When I try to imagine the shakiest case for a capital murder conviction, I think of a conviction based solely on the testimony of a snitch who sold his story for a get-out-of-jail-free card. The shaky case of  the despicable Gary Graham is not quite that bad. Close, but not quite.

Graham, who changed his name to Shaka Sankofa while on death row, was convicted solely on the identification of a single eyewitness. Though at least eight people witnessed the crime, only one identified Graham as the criminal. In Texas, that's enough to get you the needle.


For a moment, let's make you the ninth eyewitness to that crime. It's Wednesday night, May 13, 1981. You're in a Safeway parking lot, in Houston, attentive for anything that might happen. You check your watch. It's 9:35 PM. It's dark, but the parking area is well lit, particularly right outside the store, right where the crime is going to take place.

There's a teenage male leaning against column near the store entrance. He's been there for about half  an hour so far. Take a good look at him. It will be important later that you not make a mistake. It's so easy to mis-identify someone.

Black, slender build, medium height, closely cropped afro, no facial hair, white coat, dark pants.

See the male employee collecting free-range shopping carts. That's Ron Hubbard, one of the Safeway box boys. He walks right past the leaner, looks directly at him, and even says something to him. Make a mental note: Ron's a half-foot taller than the leaner.

Look inside the store, through the glass. See the cashier? Her name is Sherian Etuk. She's noticed the leaner as well, glanced at him a couple times during the last half hour.

Look around the lot. There's Wilma Amos loading groceries into the  back of her van. That's Leotis Wilkerson sitting in the car over there with a couple of his friends, waiting for his dad. Leotis is 12 years old. And there's Daniel Grady, parked not far from the entrance, not far from the leaner.

Pay special attention to Bernadine Skillerine. That's her in the car, the black, middle age, middle class lady with the two young kids in the back seat. She's thirty to forty feet from where Grady is parked. It looks like she's waiting for someone. She keeps looking towards the store entrance.

That's the victim coming out the door now. At least he will soon be the victim.  Right now, he's got a bag of groceries in his hand. He walks right past the leaner. He's taller than the leaner, isn't he?

The leaner falls in behind his victim, almost as if he were waiting for him to come out. He walks up behind him, puts his hand in the guy's back pocket. The guy drops his groceries and resists. The leaner pulls a gun and holds it to the guy's head. You're frozen in fear and astonishment as the murder unfolds right before your eyes. Skillerine, however, isn't frozen. She's blowing her horn, you can hear her yelling from inside her car: "Don't, don't, don't."

The leaner turns and looks at her, for just a second or two, literally, then hesitates no longer. He turns his attention back to the business at hand and fires a .22 caliber round directly into the guy's chest. He doesn't take anything, doesn't rob the man, doesn't search for a wallet. He just pops the guy and leaves.

The victim slumps onto the hood of Daniel Grady's car, but somehow gets back up and staggers back into the market. He collapses face down on the floor. He's dead.

The shooter goes for a quick exit from the scene on foot. He passes right by Sherian Etuk. She doesn't get a good look at his face.

Skilleren must be crazy because she actually pursues the shooter in her car, with her kids in the back seat. She'll chase him for a minute or so, getting a good look at the back and side of his head, but not at his face really. After a bit, the screams from the back seat convince her to stop.

Nice work. You caught much of what happened. Not most of it, but a fair amount. Time to promote you to lead investigator.


The victim is Bobby Lambert. He's a 53-year-old white male. He was a pilot from Tucson and he trafficked in drugs. The feds caught him flying a load of coke and Quaaludes into an airstrip near Oklahoma City and they flipped him. He's supposed to testify against some of his colleagues in three months, but he'll probably miss that court date. He's got $6000 in his back pocket, three shotguns in his van, all legal, and some fake ID.

The forensics and crime scene guys give you zilch. No gun. No blood from the perp. No photo ID accidentally dropped. Zero. Zip. Nada.

You talk to each of the eyewitnesses, most of them at least.

Daniel Grady was parked so close that the victim fell on his hood. He didn't get a good look at the guy's face. He was mesmerized by the gun.

Sherian Etuk was loading groceries into her van and the guy ran right by her. She didn't get a good look at his face, but he wasn't much taller than she was. She's 5'2".

Leotis the 12 year old doesn't actually come in. He relays his observations, and those of his friends, through an adult relative. The shooter was shorter than the guy who got shot. The shooter kinda looked like an adult he knows, Curley Scott. You'll check Scott out, but he's clean.

Wilma Amos was finishing work and headed for her van when it all broke out. She didn't see the shooter's face, but she gives the same general description. Slender black male, short afro, clean shaven, white shirt, dark shorts, medium height.

The box boy did better. Ron Hubbard passed the guy, looked right at him, said something to him. He can ID him. That's good. He provides the standard description.

Bernadine Skillerine is better. He looked right at her, at least once, maybe a second time when she nearly cut him off as he was trying to get out of the parking lot.  She's confident she'll be able to identify him. For now, she gives the standard description.

You have the witnesses talk to the sketch artist and you end up with a sketch. It's something, but you're going to need a break. You get that break a week later.

On May 20, you learn that you may have the shooter in custody. It's some 17 year old punk named Gary Graham. He went on a crime spree starting about a week ago. The crime spee ended just recently when his latest victim, a rape victim gets his gun and holds him at gunpoint as she calls the cops. Lisa Blackburn, a 57 year old taxi driver, says that Graham abducted her at a gas station, took her to some vacant area and repeatedly raped her. Then they went to her house where he fell asleep. During the 5 hour ordeal, Graham kept telling her "I've killed three people, and I'm going to kill you."

"When I knew he was going to rape me I told him I was 60 years old. He then hit me in the face and said 'don't lie.' He said 'I'm going to fuck you in the ears and the eyes and every place else.' He raped me until I couldn't stand it any longer and I screamed and he stopped. He then attempted anal sex. I was screaming and crying and shaking very, very hard ... I was in great pain at that moment, great pain."

Blackburn was just the last in a long string of victims. Graham is good for 20 armed robberies, 3 kidnappings, 1 rape, and 3 attempted murders. There are 28 known victims of this crime spree, and 19 eyewitnesses pointing the finger at Gary Graham. One victim was shot in the neck and another in the leg. It seems like the leg couldn't be saved.

Eleven previous cases were cleared because of Graham's arrest. Graham's gotta be good for the Lambert shooting. So you bring Killerine into the station. You show her a set of five pictures, making sure that Graham stands out. He's the only one with short hair, a thin face, and clean shave. The others all have bushy Afros, moustaches or beards, and full faces.

“That looks the most like him. But the person I saw had a darker complexion and thinner face."

That's close enough for police work. You organize a lineup for the next day. You make sure that Gary Graham is the only guy in the lineup who was in the photo array the previous day. "That's him," she says. As she's being driven home, she tells the officer she identified the man “in the photo” that she had seen the previous day. Not to worry though. Her identification will grow stronger and stronger as time pases.

That's good, because neither Ron Hubble nor Daniel Grady were able to identify Graham when they looked at the lineup.

So nice job with the investigation. Looks like you've got your man. Time to promote you to DA.

They won't let you enter information about all Graham's other crimes until the penalty phase, so you'll focus mostly on Skilleran's testimony. She's uwavering now that she saw Graham. And she'll be a good witness, as honest and sincere as you could hope. A mother and a school teacher too. Perfect.

You'll not call Ron Hubbard, the box boy. He actually saw the guy and talked to him, but he already refused to identify Graham. He can take a hike. Same too with Sherian Etuk. Each time she describes the shooter, he gets shorter. By the time she's on the stand, she'll have the shooter looking up to Billy Barty. Graham is 5'9" or 5'10", thereabouts.

You'll call Daniel Grady instead. He's the guy who focused on the gun. He'll give details of the shooting, but you won't ask him to identify Graham. You'll also call Wilma Amos, the cashier. You won't ask her either to identify Graham.

You have that physical evidence problem too, as in not having any. You do have some, actually, but it's not good. You recovered 10 of Graham's weapons, and one of them was a .22 pistol, but it wasn't the murder weapon. That's what the ballastics report says. It doesn't look like Graham was in the habit of getting rid of his weapons, but he doesn't have the murder weapon. Maybe it would be best if you just kind of hold on to the ballistics report until it will be too late for the defense to do anything about it.

If you're lucky, you'll get one of the standard defense hacks the state appoints for these things. Guilt phase shouldn't take long; two days, tops.

You've done a nice job with the trial preparation. Now it's time for your final promotion, to the most lofty position of all, that of juror.


It's a short trial, at least the penalty phase is. The State has an eyewitness, and a darn good one at that: Bernadine Skillerin. He looked right at her. His face is burned into her memory. She'll never forget it.

The defense calls no witnesses, and barely cross-examines the State's witnesses. During closing argument, Graham's attorney even praises Skilleren. He tells you she should get a standing ovation for bravery.

It's an easy vote. You find him guilty beyond a reasonable doubt.

The vote on the death penalty is even easier. It made your stomach turn listening to what he told the victims of his crime spree.

"I've killed six people already, if you want to be number seven do something stupid."

"I'll kill you, too. Blowing away another white mother fucker don't mean nothing to me."

"After I kill you, I am going back (to your broken down car) to kill your fiancée and her parents so they can go with you to 'honky hell'. Before I kill your fiancée, I'm going to rape her." 

You decide he's a definite threat to society. You vote for death.


After his conviction, Gary Graham changed his name to Shaka Sankofa, "took responsibility" for a bunch of his crimes, and became a spokesperson for white injustice against blacks. He always denied shooting Bobby Lambert. He became a cause celebre, attracting the support of people such as Coretta Scott King, Al Sharpton, Jesse Jackson, Desmond Tutu, Danny Glover, Lionel Richie, Harry Belafonte, Ruby Dee, and Bianca Jagger. Twenty-two hundred people attended his funeral. He is frequently listed among the Pantheon of those wrongfully convicted.

I'm not so sure. I score him at 58 on my Actual Innocence Scorecard. I think the single eyewitness testimony is really shaky grounds for a death penalty conviction. I don't doubt Skillerin's integrity or sincerity. It's just that we all now know how shaky eyewitness testimony can be, and Skillerin's shows the tendency of progressing from "close but not him" to "absolutely, positively him" as time progresses.

Also, I think there may be something to Lambert's involvement with drug trafficking. It might indeed have been a hit. Anyway, I give Gary Graham a slightly greater chance of being factually innocent than factually guilty.


I include Gary Graham / Shaka Sankofa in the list of possibly innocent people whose execution I have reviewed. I provide the list as it now stands below. If you add the scores, you will see that I claim to have so far identifed 6.27 people that Texas has wrongfully executed. They are somewhere in the list below, more likely near the top than the bottom. For those of you confused by my use of decimal counting rather than binary counting, read here.

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