[Congressional Record Volume 146, Number 78 (Tuesday, June 20, 2000)]
[Extensions of Remarks]
[Pages E1059-E1060]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NEW TRIAL FOR GARY GRAHAM

                                 ______
                                 

                          HON. EDOLPHUS TOWNS

                              of new york

                    in the house of representatives

                         Tuesday, June 20, 2000

  Mr. TOWNS. Mr. Speaker, I rise today to raise an issue of great 
importance to society's guarantee of due process and fairness to all of 
our citizens. As you all know we are less then two days away from 
executing a potentially innocent man, Gary Graham. There is a great 
weight of evidence, still unheard by a Texas court, that could 
establish his innocence. The evidence that he had an inadequate lawyer 
is so overwhelming that to put this man to death, without consideration 
of the evidence that could exonerate him, would be a travesty of 
justice.
  Last week, 34 of my colleagues in the Congressional Black Caucus sent 
a letter to the Texas Governor, appealing to him to grant Mr. Graham a 
conditional pardon and the right to a new trial. Mr. Speaker, I insert 
a copy of this letter into the Record at this point. Were the relief we 
requested granted, Mr. Speaker, the Texas Court would be able to 
consider this important evidence that could exonerate Mr. Graham.
  In a new trial, Mr. Graham's counsel would be able to effectively 
challenge the only evidence that was used to convict Mr. Graham--the 
testimony of a single witness. With the assistance of effective 
counsel, the court would hear that the witness initially failed to 
identify Mr. Graham at a photo spread the night before she picked him 
out of a lineup of four people. The Court would also hear that the .22 
caliber gun found on Mr. Graham at the time of his arrest was 
determined by the Police Crime Lab not to be the weapon used in the 
murder. Further, the Court would hear from four other eyewitnesses 
mentioned in the police report who said that Mr. Graham was not the 
shooter.
  In addition to this evidence available in the first trial that 
defense counsel failed to present, the Court would also benefit from 
``new'' evidence obtained after the first trial concluded. The court 
would need to hear this evidence, consisting of statements from at 
least six eyewitnesses to the incident who affirmed under oath that Mr. 
Graham did not commit the crime for which he may soon pay the ultimate 
price. Because prior Texas court rules give persons convicted of a 
crime only 30 days after their trial to present ``new'' evidence, these 
exonerating testimonies could not be presented to the Appellate Court 
for consideration.
  Mr. Graham may not be innocent, but as we stand here today we know 
that he has not been proven guilty beyond a reasonable doubt. We are 
talking about a man's life, one that cannot be brought back once we 
have taken it away. If we execute this man without a fair trial it will 
be an obvious contradiction to everything this country stands for and a 
dark day in our history.
  Mr. Speaker, we have a choice today: we either hold strong to our 
principles and show that we are truly a nation of justice, or we allow 
a man to die in the face of strong evidence of his innocence. I urge my 
colleagues to join me in support of justice, to show that a human life 
can never take a back seat to politics. In two days we will show that 
we are truly the greatest country of all time, or we will put our heads 
down in shame in the realization that a great country, a just country, 
and a truly democratic country does not yet exist.

                                Congress of the United States,

                                    Washington, DC, June 13, 2000.
     Hon. George W. Bush,
     Governor, the State of Texas,
     Office of the Governor.
     Re Request for Stay of Execution, Grant of Clemency for Shaka 
         Sankofa, formerly known as Gary Graham
       Dear Mr. Governor: As you are aware, time is quickly 
     running out before the June 22, 2000, scheduled execution of 
     Gary Graham, also known as Shaka Sankofa. Based upon our 
     understanding of the facts and merits of the case, as well as 
     the ineffective counsel Mr. Sankofa received at trial, we 
     believe that it would be a severe miscarriage of justice for 
     his execution to proceed. Therefore, we are writing to 
     request that you grant an immediate stay of Mr. Sankofa's 
     execution, as your predecessor, Governor Ann Richards, did in 
     1993.
       We feel strongly that it is altogether appropriate for you 
     to grant the stay of execution for Mr. Sankofa to give your 
     office and the Texas Board of Pardons and Paroles time to 
     approve Mr. Sankofa's clemency petition. As is clear from 
     reviewing the history of this case, which is set forth in 
     detail in Mr. Sankofa's clemency petition, Mr. Sankofa 
     received grossly ineffective counsel at his two-day capital 
     trial. Throughout the recent history of Texas capital cases, 
     there is perhaps no situation like this, where a young man is 
     sentenced to die based entirely upon the testimony of one 
     witness--with absolutely no corroborating evidence. We must 
     not ignore the fact that officers investigating the shooting 
     never recovered any physical evidence or corroborating 
     witness testimony linking Mr. Sankofa to the shooting.
       Whether Mr. Sankofa received ineffective assistance of 
     counsel is hardly a dispute. Mr. Sankofa's trial lawyer 
     failed to use any of the key witnesses who were available at 
     the trial to rebut the testimony of the prosecution's only 
     witness--indeed, their only evidence--to tie him to the 
     crime. A reasonably competent attorney would have called 
     witnesses, like Ronald Hubbard, who would have directly 
     rebutted the prosecution's evidence by testifying that Mr. 
     Sankofa did not resemble the gunman. Had Mr. Hubbard's 
     testimony been received into evidence, the jury or a later 
     appeals court would have had a factual basis, at the very 
     least, to determine that Mr. Sankofa should not be executed.
       Furthermore, at trial, Mr. Sankofa's attorney did not even 
     seek to impeach the testimony of the prosecution's lone 
     witness, Bernadine Skillern. Mr. Sankofa's lawyer was 
     negligent in not pointing out to the trier of fact that Ms. 
     Skillern failed to positively identify Mr. Sankofa in a photo 
     array shown to her the night before she finally identified 
     him in a lineup with four different men in the lineup. Mr. 
     Sankofa's lawyer did not introduce a police report saying 
     that Ms. Skillern focused on Mr. Sankofa's photo but declined 
     to positively identify him, saying the shooter had a darker 
     complexion. A competent attorney would have used this 
     information to establish a foundation for impeaching Ms. 
     Skillern's testimony--the only evidence of any kind linking 
     Mr. Sankofa to the murder.
       In fact, a reasonably competent attorney would have 
     realized that Mr. Hubbard's testimony alone would have 
     seriously undermined a finding that the prosecution met its 
     burden to present clear and convincing evidence establishing 
     guilt beyond a shadow of a doubt with the scant evidence it 
     offered. Clearly, directly conflicting witness testimony 
     raises a legally significant doubt about a person's guilt. 
     Mr. Sankofa's counsel's failure to offer this evidence is 
     inexcusable neglect. As the clemency petition shows, there 
     are many other instances of ineffective assistance of 
     counsel, which do not need to be set forth again here. The 
     pattern of negligence of Mr. Sankofa's trial lawyer is well 
     established, and Mr. Sankofa should not pay with his life for 
     his attorney's many mistakes.
       Unfortunately, simply failing to call important witnesses 
     to testify at trial was not the end of Mr. Sankofa's lawyer's 
     negligence. Because prior Texas court rules gave persons 
     convicted of a crime only 30 days after their trial to 
     present ``new'' evidence, Mr. Sankofa's subsequent counsel, 
     retained in the mid-1990s, were not permitted to offer 
     exonerating testimony to appellate courts. Specifically, 
     these attorneys obtained statement from at least six 
     witnesses to the incident who affirmed under oath that Mr.

[[Page E1060]]

     Sankofa did not commit the crime for which he may soon pay 
     the ultimate price. Therefore, Mr. Governor, we request you 
     to weigh all the evidence that is available to you, which 
     could not be considered by the courts, and ensure that 
     justice is done by preventing his execution and granting him 
     a conditional pardon and the right to a new trial.
       Mr. Governor, what we have here is a very compelling case 
     for granting Mr. Sankofa clemency. Unfortunately, we are 
     concerned that the merits of his petition may get overlooked 
     in the current atmosphere of your candidacy for the Office of 
     the President of the United States. The life of an innocent 
     man may be at stake, and politics must not be allowed to 
     cause a miscarriage of justice that can never be undone. For 
     the foregoing reasons, we respectfully request you to grant 
     an immediate stay of Mr. Sankofa's execution, and work with 
     the Texas parole board to approve his petition for clemency.
       Thank you for your consideration of this request. Please 
     feel free to contact Jeffrey Davis, Legislative Counsel, in 
     Congressman Towns' office should you need any additional 
     information.

     

                          ____________________