Gary Graham and the death penalty - 4 June 1993

Just before dawn last Thursday, a young 29-year-old black man was to be executed in Houston, Texas, for the murder of a businessman in a robbery case. The defendant's name is Gary Graham, his arrest, trial and conviction happened 12 years ago.

In other words, he was found guilty of the crime when he was 17. There was only one witness to testify against him, a woman who was in her car about 40 feet away says she had a fleeting glimpse of the murderer and assured that it was Gary Graham. There was no corroborating witness.

There have been long years of waiting and appealing, the highest court in Texas, the Court of Criminals Appeals, rejected a reprieve. All the Roman Catholic bishops of Texas – there are 17 of them – believe Graham to be innocent, so does Amnesty International. More to the point, 11 witnesses including five who swear to alibi on Graham's behalf all say he could not possibly have been the killer. Various groups filed petitions of reprieve right up to Wednesday night.

Some of you remembering many an American movie will wonder about the initiative of the governor of the state. Well, in Texas, the governor can order a stay, a 30-day stay of execution, which governor and Richards did in April. She could have granted clemency only with the assent of the Texas State Pardons Board, which was reconsidering Graham's case right up to the end.

The case has aroused sympathetic protests around the world. I myself have had letters from Britain urging somebody on the outside to do something, which is a little difficult. And you have to admit that on the face of it, it appears to be a gross miscarriage of justice or if you like, a judgement of guilt on the slenderest conceivable evidence the testimony of one eye witness who thinks the 17-year-old Graham must be the man.

What about the 11 witnesses who swear he could not possibly be the man? Well, they gave their testimony in affidavit since the trial and that is why their protests have no weight in Texas law. Need I say again that every state has its own laws even its own criminal code and Texas law rejects the relevance of any evidence presented later than a month, 30 days to be specific, after a conviction. This must sound very odd indeed to non-Texans.

At the end of April, Governor Richards received an open letter signed by several judges both federal and state protesting this rule. And a commission of the Texas State Bar Association some months ago published a stinging condemnation of another element of the system namely the fact that Texas is one of only eight of the 50 states that does not finance the defence of poor people in capital cases. Of course, such cases more than most take for ever to resolve and only if a defendant is very lucky indeed is he going to get a lawyer who is both competent and, well, noble to the extent of giving his talents for perhaps months at a time for nothing. This lack of good defence talent is true also of the process of appeals.

The Texas Bar Commission's report minced no words at the end, it concluded, "we believe in the strongest terms possible that Texas has already reached the crisis stage in capital representation and that the problem is substantially worse than that faced by any other state with the death penalty". Which brings us to one of those political issues, which are also moral issues that never seem to get settled in the United States as they do in other democratic societies, two issues in particular that both challenge the idea of the sanctity of human life: abortion and capital punishment. Why do they never seem to get resolved? I think the answer is because of the written United States Constitution, which is to the life of American society far more controlling than the Bible, the Koran, the Talmud or any other holy guide to conduct.

The United States Constitution written in the summer of 1787 was said, by no less towering a statesman than Prime Minister William Ewart Gladstone, to be the most wonderful work ever struck off at a given time by the brain and purpose of man. It is also the most wonderfully vague document of any that a great nation has chosen to be governed by. All or most of the great questions of government were anticipated in the constitution, but none of them gets a positive once for all answer. The constitution says nothing about for instance child labour or the right to strike or what is the proper length of a railway train or is it right to play music in a public bus, yet these things have come up as burning issues. And the nine justices of the Supreme Court have ingeniously found some phrase in the Constitution that covers them.

Once the Constitution gave small children the right to work all through the night, some years later the court decided that in fact the Constitution specifically forbade child labour through the night.

Take a simple famous phrase in the constitution, "cruel and unusual punishments shall not be inflicted". what did the authors mean by that phrase? For a hundred years the court had no doubt what it meant, it meant torture, such old fashioned atrocities as burning at the stake, being broken on the wheel. In 1890, it decided that hanging and electrocution were usual and not cruel, not until 1910 did the court come up against an unusual punishment used in the western territory that had not yet become a state, a Spanish punishment, "cadena temporal" – being sentenced to 12 to 20, chained in prison. This had been imposed on a man who made a false statement in a public record and the court unearthed that phrase where it had laid buried in the 8th Amendment and ruled that the punishment did not fit the crime, that it was indeed cruel and unusual.

In that 1910 case, the court's opinion carried a sentence that has been a godsend to all succeeding courts it said, "a principle, to be vital, must be capable of wider application than the mischief which gave it birth". And ever since, even though some justices on the court will always split hairs and tease the history books to tell us what the founding fathers really meant. That blessed sentence written in 1910 really means, forget the founding fathers what can the phrase be made to mean to us today, by now cruel and unusual punishment might well be claimed by a man who wasn't given maternity leave until his wife was in labour.

"The equal protection of the laws" is another famous original, which is being cited and claimed to mean that there should be an equal number of black managers of baseball teams as white and that homosexuals of either sex have a constitutional right to marry and share in all the property, inheritance, insurance and other legal rights that are given to heterosexuals.

But the prohibition against cruel and unusual punishment has had a particular application to the death penalty. Not until 1972 though, when the court by a divided vote concluded that the death penalty for rape and murder was freakish and so arbitrarily imposed throughout the states that it might be considered cruel and unusual.

Four years later, 1976, the court ruled that the death penalty as such – what does that mean – as such was not cruel and unusual but it would be if it were made compulsory for murder, that's to say an automatic penalty in any state law. The court has not yet got around to deciding whether the death penalty is cruel and unusual for other crimes than murder – espionage, treason for example. So what we have with capital punishment is what we have with other issues that are controversial, the thing is left to the laws, the legislatures of each of the 50 states. The Supreme Court comes in to it only when somebody decides that his death sentence can be interpreted under the 8th Amendment to be cruel and unusual. We go case by case with due or undue respect paid to the laws and how their applied of 50 states. At present, the death penalty is legal in 38 states.

In the meantime, the great debate goes on and I suppose passionate people both for and against the death penalty will work in their own states to get a law passed that satisfies them then the opposition will challenge it on constitutional grounds. And that one case will go up to the Supreme Court, which does not then propound the general rule, it decides whether in this case these circumstances the death penalty is or is not constitutional. Next month, next year another case slightly different circumstances, another subtle qualified judgement, which won't satisfy one side or the other. At their best the justices are enlarging their view of American life according to what one of the great ones called "the felt necessities of the time" at their worst they love an intellectual game and so of course do the lawyers.

Well now in Texas, the criminal appeals court at the last minute has granted that extra 30 days, but what for? The law stands that refuses to consider the new evidence and there is no Texas forum to hear it. Texas law is certainly a law unto itself. I remember following a murder case long ago in a small town in West Texas in the foothills of the Rockies, an army officer came home from a long stretch of service to hear that his wife had had an affair with the local bartender. An affair, incidentally, never proved. The officer went after him, shot and killed him. The jury brought in murder in the first degree. In Texas, then anyway, the jury also delivered the sentence; it was a tough one "life imprisonment in the state penitentiary". The judge routinely asked, "have you anything more to say?" "Yes, your honour," said the foreman, "sentence suspended."

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