Texas Department of Criminal Justice

Texas Attorney General News Release

June 14, 2000 - From Attorney General John Cornyn regarding the execution of Gary Graham:

"The people of Texas can be assured that Gary Graham is guilty of capital murder and that he has received the due process our American system guarantees. The incredible brutality and raw violence of Gary Graham forever will haunt the memories of Texans. The capital murder of Bobby Lambert started Gary Graham's rampage of crime in 1981. During the period May 14 through May 20 of that year, Gary Graham robbed some 13 different victims at nine different locations, in each instance leveling either a pistol or a sawed-off shotgun on the victim. Two of the victims were pistol-whipped, one being shot in the neck; a 64-year old male victim was struck with the vehicle Graham was stealing from him; and a 57-year old female victim was kidnapped and raped. "Not even Gary Graham can cast doubt on these crimes: he pleaded guilty to and was sentenced to 20-year concurrent prison sentences for 10 different aggravated robberies committed May 14, 15, 16, 18, 19, and 20, 1981. During the armed robbery of one victim, Richard B. Sanford, Gary Graham boasted of having killed six other people already.

"The only crime for which he claims to be falsely convicted is the murder of Bobby Lambert. In 1981, Gary Graham was convicted by a Harris County jury which concluded that "beyond a reasonable doubt" he was guilty of capital murder based on eyewitness testimony. Then in the sentencing phase of his trial, the jury heard evidence of Gary Graham's violent criminal history and sentenced him to death for the murder of Mr. Lambert.

"Gary Graham has repeatedly put forth the names of alleged new witnesses who either purport to provide an alibi for Graham or allege he was not the shooter. Evidence from all such witnesses that Gary Graham has produced since the trial, years afterward, has been considered by the courts and found to be not credible. "Both state and federal courts have been involved in hearing and reviewing his case. Gary Graham has had at least 20 appeals and his claims have been heard and rejected by at least 33 different judges.

"Each death penalty case in Texas receives the highest degree of scrutiny in our criminal justice system and the attention given Gary Graham's case in state and federal appellate courts, including the United States Supreme Court, demonstrates that his constitutional rights have been respected. This has been a long, extensive process with proper deliberation by the courts. "Gary Graham is not the innocent victim in this case, he is the convicted murderer. For 19 years, Graham's victims and their families have had to live with the consequences of his crimes. It is now time for them to have the closure and the justice our system provides."

ProDeathPenalty.Com

On the night of May 13, 1981, Graham accosted Bobby Grant Lambert in the parking lot of a Houston, Texas, grocery store and attempted to grab his wallet. When Lambert resisted, Graham drew a pistol and shot him to death. Five months later, a jury rejected Graham's defense of mistaken identity and convicted him of capital murder. An eyewitness who identified Graham had followed him through the parking lot in her car for a short time after the murder. Lambert was killed during a crime spree the rest of which seventeen-year old Graham confessed to, including 10 other armed robberies, two shootings and a rape.

Texas Execution Information Center by David Carson

Gary Graham, 36, was executed by lethal injection on 22 June in Huntsville, Texas for the murder of a 53-year-old man outside a supermarket. On 13 May 1981, Bobby Lambert was coming out of a supermarket when an assailant reached into his pockets and shot him with a pistol as they scuffled. The robber got away with the change from a $100 bill.

Gary Graham, then 17, was arrested a week later (20 May) for the rape and robbery of a taxi driver. Lisa Blackburn said that Graham abducted her at a gas station, took her to a vacant place and repeatedly raped her. Then, they went to her house, where he took her valuables, shot up the walls, got undressed, and fell asleep. Blackburn then took Graham's gun and called police, who arrested him at the scene. Blackburn said that during the 5-hour ordeal, Graham kept saying to her "I've killed three people, and I'm going to kill you." Police linked 22 crimes that occurred from 13 to 20 May to Graham. On 16 May, Gary Spiers was robbed and shot in the thigh with a sawed-off shotgun. From a hospital bed, he identified Graham as the shooter to police. Spiers said that Graham saw he was having car trouble and offered to give him a lift, and attempted to rob him after he got in Graham's car. Graham was also identified by Greg Jones as the man who shot him in the throat and left him for dead. In all, Graham was suspected in 19 aggravated robberies -- including the shootings of Spiers and Jones and the rape of Blackburn -- two auto thefts, and Lambert's murder. He pleaded guilty to ten of the robberies.

On the night of Bobby Lambert's murder, Bernadine Skillern was sitting in her car in the parking lot. She said that when a man put a pistol to Lambert's head, she blew her horn, and the gunman turned to look at her. There was a pop, Lambert dropped his bag of groceries, and the other man fled. She followed him in her car until her screaming children made her stop. Skillern said that she got a good look at the killer for about a minute and a half. After Graham was arrested, Skillern picked his mug shot and chose him from a police lineup. She identified him at trial and has continued to do so ever since.

Graham has admitted responsibility for the other crimes, but says he did not kill Bobby Lambert and that Skillern's identification of him is mistaken. Two other eyewitnesses, though they could not identify the killer because neither saw his face, nevertheless said it could not have been Graham, because he is 5'10", while the assailant they saw was between 5'3" and 5'6". Graham also faults his attorney, who did not call the other two eyewitnesses to testify and did not cross-examine Skillern.

Most capital murder cases are decided without any eyewitnesses. A number of criminal defense attorneys have stated that they prefer when there is an eyewitness because it gives them a chance to create reasonable doubt. Harris County defense attorney Robert Morrow said, "I see there's an eyewitness and I see an opportunity." Another local defense lawyer, Floyd Freed, said, "it certainly gives me more hope at trial" if the prosecutors present an eyewitness. Death penalty cases are usually decided on confessions, physical evidence, and/or circumstantial evidence. In Graham's case, there was no confession or physical evidence, and circumstantial evidence was weak, so the prosecutors had to base most of their case on Bernadine Skillern's testimony.

At his trial, Graham gave no alibi for his whereabouts on the night Bobby Lambert was killed. His lawyer said Graham told him only that he had spent the evening with a girlfriend whose name, description, and address he could not remember. On appeal, four witnesses came forward to offer alibis for Graham, but when two of them -- one was his wife -- were called to testify before a state district judge, they contradicted themselves and each other and were deemed not credible.

Graham's case attracted national attention from the media, anti-death-penalty groups, and even Hollywood. As the date drew nearer, each side offered new evidence to support their positions. Graham's attorneys presented signed affidavits from three jurors who said they had a change of heart because they did not know about the other two eyewitnesses when they sentenced him to death. Harris County prosecutors filed an affidavit signed by the bailiff who escorted Graham from the courtroom after his death sentence, who heard him say, "Next time, I'm not going to leave any witnesses." A prosecutor filed an affidavit stating that the bailiff related the comment to him within minutes of the time it was allegedly made. Harris County District Attorney Johnny Holmes noted that Graham's case was reviewed 35 times by the courts and that his conviction was never overturned. The Supreme Court rejected Graham's appeal in May.

Graham, who called himself Shaka Sankova since 1995, was in the top 25 in Texas death row seniority and had seven prior execution dates. In January 1999, he called for violence and asked his supporters to go to Huntsville armed with AK-47 rifles to stop his execution. New Black Muslim Movement leader Quanell X urged young blacks to take out their anger against whites in wealthy neighborhoods if this execution was carried out. And recently, Graham reiterated his intention to "stop this thing by any means necessary."

Many Huntsville businesses closed early Thursday because of safety concerns. The Walker County courthouse closed at noon and city officials advised business owners to clear the area. Prison workers who live in about 30 houses near the Walls Unit, where all Texas executions are performed, were told to leave and staffers in the administrative offices were given the day off. Police set up barricades Wednesday night and set up two protest areas on opposite sides of the Walls Unit, one side for Graham's supporters and the other side for the Ku Klux Klan. At noon on Thursday, the Texas Board of Pardons and Paroles denied Graham a 120-day reprieve by a 14-3 vote. The board also voted against commuting his punishment (12-5) and against a pardon (17-0). Later in the afternoon, the Texas Court of Criminal Appeals and the U.S. Supreme Court, both of which had turned down Graham's appeals in the past, did so again. The Supreme Court's vote fell 5 to 4. Graham's lawyers' final move was to file a civil suit against the Texas parole board. A federal judge rejected that suit and Graham's attorneys did not appeal that ruling. The execution, scheduled for 6:00 p.m., was delayed for over two hours because of the last-minute appeals and lawsuit.

Though under Texas law the governor has the power to grant one 30-day stay of execution per prisoner, that option was not available to Governor George W. Bush because his predecessor, Ann Richards, used it on Graham in 1993. Even if that option was available to him, however, it is a given that Bush, who said he supported the execution, would not have used it. Outside the Walls Unit, a small fight broke out when some of Graham's supporters snuck into the Klan demonstration area, but a riot team from the Texas Department of Public Safety quickly moved in to stop it. After the Supreme Court's decision was announced, Graham supporters broke through police lines and six were arrested.

Graham resisted and fought the guards who took him from death row in Livingston to the Walls Unit in Huntsville Wednesday evening. He refused meals that night and on Thursday. Extra restraints were used to strap him to the gurney, where he made a long, defiant final statement in which he said he was being lynched and that the death penalty was a "holocaust for black people in America." Gary Graham, a.k.a. Shaka Sankova, was pronounced dead at 8:59 p.m.

Gary Lee Graham Last Statement

I would like to say that I did not kill Bobby Lambert. That I'm an innocent black man that is being murdered. This is a lynching that is happening in America tonight. There's overwhelming and compelling evidence of my defense that has never been heard in any court of America. What is happening here is an outrage for any civilized country to anybody anywhere to look at what's happening here is wrong.

I thank all of the people that have rallied to my cause. They've been standing in support of me. Who have finished with me. I say to Mr. Lambert's family, I did not kill Bobby Lambert. You are pursuing the execution of an innocent man.

I want to express my sincere thanks to all of ya'll. We must continue to move forward and do everything we can to outlaw legal lynching in America. We must continue to stay strong all around the world, and people must come together to stop the systematic killing of poor and innocent black people. We must continue to stand together in unity and to demand a moratorium on all executions. We must not let this murder/lynching be forgotten tonight, my brothers. We must take it to the nation. We must keep our faith. We must go forward. We recognize that many leaders have died. Malcom X, Martin Luther King, and others who stood up for what was right. They stood up for what was just. We must, you must brothers, that's why I have called you today. You must carry on that condition. What is here is just a lynching that is taking place. But they're going to keep on lynching us for the next 100 years, if you do not carry on that tradition, and that period of resistance. We will prevail. We may loose this battle, but we will win the war. This death, this lynching will be avenged. It will be avenged, it must be avenged. The people must avenge this murder. So my brothers, all of ya'll stay strong, continue to move forward.

Know that I love all of you. I love the people, I love all of you for your blessing, strength, for your courage, for your dignity, the way you have come here tonight, and the way you have protested and kept this nation together. Keep moving forward, my brothers. Slavery couldn't stop us. The lynching couldn't stop us in the south. This lynching will not stop us tonight. We will go forward. Our destiny in this country is freedom and liberation. We will gain our freedom and liberation by any means necessary. By any means necessary, we keep marching forward.

I love you, Mr. Jackson. Bianca, make sure that the state does not get my body. Make sure that we get my name as Shaka Sankofa. My name is not Gary Graham. Make sure that it is properly presented on my grave. Shaka Sankofa. I died fighting for what I believe in. I died fighting for what was just and what was right. I did not kill Bobby Lambert, and the truth is going to come out. It will be brought out. I want you to take this thing off into international court, Mr. Robert Mohammed and all ya'll. I want you, I want to get my family and take this down to international court and file a law suit. Get all the video tapes of all the beatings. They have beat me up in the back. They have beat me up at the unit over there. Get all the video tapes supporting that law suit. And make the public exposed to the genocide and this brutality world, and let the world see what is really happening here behind closed doors. Let the world see the barbarity and injustice of what is really happening here. You must get those video tapes. You must make it exposed, this injustice, to the world. You must continue to demand a moratorium on all executions. We must move forward Minister Robert Mohammed.

Ashanti Chimurenga, I love you for standing with me, my sister. You are a strong warrior queen. You will continue to be string in everything that you do. Believe in yourself, you must hold your head up, in the spirit of Winnie Mandela, in the spirit of Nelson Mandela. Ya'll must move forward. We will stop this lynching. Reverend Al Sharpton, I love you, my brother.

Bianca Jagger, I love all of you. Ya'll make sure that we continue to stand together. Reverend Jesse Jackson and know that this murder, this lynching will not be forgotten. I love you, too, my brother. This is genocide in America. This is what happens to black men when they stand up and protest for what is right and just. We refuse to compromise, we refuse to surrender the dignity for what we know is right. But we will move on, we have been strong in the past. We will continue to be strong as a people. You can kill a revolutionary, but you cannot stop the revolution. The revolution will go on. The people will carry the revolution on. You are the people that must carry that revolutionary on, in order to liberate our children from this genocide and for what is happening here in America tonight. What has happened for the last 100 or so years in America. This is the part of the genocide, this is part of the African (unintelligible), that we as black people have endured in America. But we shall overcome, we will continue with this. We will continue, we will gain our freedom and liberation, by any means necessary. Stay strong. They cannot kill us. We will move forward.

To my sons, to my daughters, all of you. I love all of you. You have been wonderful. Keep your heads up. Keep moving forward. Keep united. Maintain the love and unity in the community. And know that victory is assured. Victory for the people will be assured. We will gain our freedom and liberation in this country. We will gain it and we will do it by any means necessary. We will keep marching. March on black people. Keep your heads high. March on. All ya'll leaders. March on. Take your message to the people. Preach the moratorium for all executions. We're gonna stop, we are going to end the death penalty in this country. We are going to end it all across this world. Push forward people. And know that what ya'll are doing is right. What ya'll are doing is just. This is nothing more that pure and simple murder. This is what is happening tonight in America. Nothing more than state sanctioned murders, state sanctioned lynching, right here in America, and right here tonight. This is what is happening my brothers. Nothing less. They know I'm innocent. They've got the facts to prove it. They know I'm innocent. But they cannot acknowledge my innocence, because to do so would be to publicly admit their guilt. This is something these racist people will never do. We must remember brothers, this is what we're faced with. You must take this endeavor forward. You must stay strong. You must continue to hold your heads up, and to be there. And I love you, too, my brother. All of you who are standing with me in solidarity. We will prevail. We will keep marching. Keep marching black people, black power. Keep marching black people, black power. Keep marching black people. Keep marching black people. They are killing me tonight. They are murdering me tonight.

Shaka Sankora / Gary Graham Justice Coalition

Abilene Reporter-News Online

HUNTSVILLE, Texas (AP) — Gary Graham, subject of the most contentious Texas death penalty case since Gov. George W. Bush began running for president, was executed Thursday night for a 1981 murder he said he did not commit. Graham, 36, received a lethal injection for the killing of a man in a holdup outside a Houston supermarket. The state parole board and appeals courts rejected his arguments that he was convicted on shaky evidence from a single eyewitness and that his trial lawyer did a poor job. Graham, who had vowed to “fight like hell” on the trip to the death chamber, put up a struggle. He was strapped to the gurney around his wrists and across his head — more restraints than are normally used in Texas executions.

He made a long, defiant final statement in which he reasserted his innocence, said he was being lynched and called the death penalty a holocaust for black Americans. He asked to be called Shaka Sankofa to reflect his African heritage. “I die fighting for what I believed in,” Graham said. “The truth will come out.”

Bush said he supported the execution and pointed out that Graham's case had been reviewed by 33 state and federal judges. “After considering all of the facts I am convinced justice is being done,” Bush said after final appeals were denied. “May God bless the victim, the family of the victim, and may God bless Mr. Graham.” Graham's supporting witnesses included the Rev. Jesse Jackson, the Rev. Al Sharpton and Biana Jagger, representing Amnesty International. Witnesses said Jackson and Graham prayed and Graham looked at Jackson just before he died. Also present were some of the victims of Graham's other crimes, and Bobby Hanners, the grandson of Bobby Lambert, the man he was convicted of killing.

“My heart goes out to the Graham family as they begin the grieving process. I also pray Gary Graham made peace with God. But I truly believe justice has been served,” Hanners said. Outside the Huntsville prison, hundreds of Graham supporters gathered in stifling heat and humidity near the brick building where 222 executions have now been carried out since capital punishment resumed in Texas in 1982. The total is by far the highest in the nation. When the Texas parole board, made up of 18 Bush appointees, refused to block the execution, that left the Republican governor with no options. The single 30-day reprieve a Texas governor may unilaterally give a condemned inmate was issued to Graham by Bush's predecessor in 1993. The parole board, which has spared a prisoner only once during Bush's tenure, could have granted a 120-day reprieve, a commutation to a lesser sentence, or a conditional pardon.

“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,” board chairman Gerald Garrett said, hours before the execution. The Supreme Court, a federal judge and state appeals court also turned down Graham's last-minute appeals, which delayed the execution for more than two hours.

The nation's high court turned down Graham's appeal on a 5-4 vote along its conservative-liberal ideological fault line. Chief Justice William H. Rehnquist and Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas voted to reject the appeal. Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer voted to order the execution postponed, presumably to give the court more time to consider his appeal. Graham was convicted of killing 53-year-old Bobby Lambert in a holdup outside a Houston supermarket one night in 1981. He pleaded guilty to 10 robberies around the same time but said he was innocent of the murder.

No physical evidence tied Graham to the killing, and ballistics tests showed that the gun he had when he was arrested was not the murder weapon. But the witness who identified him, Bernadine Skillern, has never wavered. Skillern, who was waiting in her car outside the supermarket while her daughter ran inside, saw the holdup from about 30 feet away. She said the lighting in the parking lot was adequate for her to see Graham. “I don't feel joy and I don't feel sadness,” she said after the execution. “I only feel relief. I hope to get back to my privacy, put this incident behind me and now move on.”

Graham also argued that his lawyer during the trial, Ron Mock, should have introduced other witnesses who would say he was not the killer. But those witnesses initially told police they couldn't identify the killer, and prosecutors said they were not actual eyewitnesses. During Bush's 51/2 years in office, 133 men and two women have been executed. He said he would treat Graham's case no differently than any other he has considered. Two years ago, Bush told the parole board to review the case of serial killer Henry Lee Lucas because of questions about Lucas' conviction. His death sentence eventually was commuted to life. This month, Bush granted a condemned man a 30-day reprieve so he could pursue DNA tests. The debate over Graham's case came amid growing questions about the death penalty. Illinois Gov. George Ryan has placed a moratorium on executions, and Bush and Vice President Al Gore have been forced to address the issue as they campaign for president. Graham's case brought the loudest protests since pickax killer Karla Faye Tucker was executed in 1998, the first woman put to death in Texas since the Civil War era. “I recognize there are good people who oppose the death penalty,” Bush said. “I've heard their message and I respect their heartfelt point of view.”

The execution was witnessed by supporters that included the Rev. Jesse Jackson, the Rev. Al Sharpton and Amnesty International representative Bianca Jagger. Leading up to the execution, Graham refused meals but met for about an hour with Jackson, who said he and the inmate talked and prayed. “He was amazingly upbeat,” Jackson said. “There were no tears shed. He had a sense of inner peace. He feels he was being used as a kind of change agent to expose the system. With every passing hour ... there is mass education around the world about what is happening in Texas.” Outside the prison, eight people were arrested for breaking through police lines and a juvenile was arrested for throwing a plastic bottle at a prison administrator, who was not hurt. Other activists burned American flags. Another 150 people protested outside the governor's mansion in Austin. Protests were also held as far away as San Francisco and Northampton, Mass. In both cities, death penalty opponents were arrested for blocking traffic.

Abilene Reporter-News Online
"Civil Rights Group Wants Justice Department Review of Gary Graham Case" (August 26, 2000)

Abilene Reporter-News Online
"Executed Killer Graham Praised at Packed Memorial Service" (June 29, 2000)

Abilene Reporter-News Online
EDITORIAL - "Graham’s Execution Justified" (June 26, 2000)

Abilene Reporter-News Online
"Prosecution Plans to Ask For Execution Date for Gary Graham" (November 19, 1998)

CNN.com

(CNN) - In an online interview, Texas death row inmate Gary Graham tells CNN Legal Analyst Greta Van Susteren that he is innocent of the 1981 murder of Bobby Grant Lambert outside a Houston Safeway. He says his court-appointed trial lawyer failed to present a "mountain of evidence" during his two-day trial.

Graham, who is also known as Shaka Sankofa, admits to 10 aggravated robberies during the week of the murder, including shooting and seriously wounding at least one victim. But he says he is scheduled to be executed June 22 for a murder he did not commit.

Graham's life is now in the hands of Gov. George W. Bush and the Texas pardons board. According to a Bush spokesperson, Bush can accept or refuse a recommendation from the board to commute Graham's sentence or delay his execution, but if the board votes to carry out the execution, the governor "has no options" to stop it.

CEDP FACT SHEETS: GARY GRAHAM

"The odds and the danger that we face in our struggle for justice is great but even greater is the power of the people." -Gary Graham

Gary Graham is Innocent! Bobby Lambert was tragically murdered in a Safeway grocery store parking lot on May 13, 1981. Gary was miles away from the grocery store with at least four people when the crime occurred. Those four witnesses have all taken polygraph tests and passed, stating Gary was with them the night of the murder. He Was Convicted By A Mistaken Identification!

Eight crime scene witnesses have been identified who saw the assailant the night of Bobby Lambert's murder. Only one of them, Bernadine Skillern, later identified Mr. Graham as the assailant. None of the others identified Mr. Graham. Out of the eight eyewitnesses, Ms. Skillern had one of the poorest views of the assailant. She testified that she had a frontal view of the assailant's face for only two or three seconds, at night, from a distance of 30 to 40 feet.

Problems With The Identification: Nearly two weeks after the crime, Bernadine Skillern could not pick Gary's picture out of a photo line-up. She told the officer that "the photo of Gary Graham looked like the suspect [she] saw on the night of the offense except the complexion of the suspect [she] saw was darker and his face thinner." She said she could not say that the man in the photo was the suspect. The day after she saw Mr. Graham in a photo array, Ms. Skillern saw Mr. Graham again in a live lineup. He was the only person who had been in both a photo array and the lineup, and not surprisingly, she picked out Mr. Graham. She candidly admitted to the police that she had seen him in the photo array the night before. There Is No Physical Evidence Linking Graham To The Crime!

Weapon: Mr. Graham was arrested with a .22 caliber pistol a week after the murder. The victim of the murder, was killed with a .22 caliber pistol. The police firearms examiner determined that Mr. Graham's weapon could not have fired the fatal bullet. No Other Evidence: There are no fingerprints, ballistics or informant information linking Mr. Graham to the murder. Only the word of a single eyewitness that saw the assailant's face for two or three seconds at night from a distance.

Other Eyewitnesses Say It Was Not Gary Graham That Killed Bobby Lambert! One of the eyewitnesses was standing in the supermarket checkout line next to the killer. She undoubtedly had the best look at the person. She emphatically says that Gary Graham is the wrong man. At trial she was never asked if Gary Graham was the suspect. Eyewitness Ronald Hubbard saw the same live lineup with Bernadine Skillern and did not see the person he recalled as the assailant in the lineup. Of the six living crime scene witnesses other than Ms. Skillern, all describe the assailant as shorter than Bobby Lambert, who was 5'6". Mr. Graham was 5'9".

Mr. Graham's Trial Lawyers Thought He Was Guilty And Conducted No Pre-Trial Investigation! Graham had a court appointed lawyer, who failed to investigate his case. This lawyer has since admitted that he believed Graham was guilty and therefore did nothing to find proof otherwise. None of the other witnesses were called on to testify, and no investigation was done into the lack of physical evidence. Bush has already indicated that he would not grant clemency to Gary Graham.

Graham Has Been Close To Execution Five Times And Time Is Running Very Short! His execution has been stayed each time. Despite this, Graham still has not had a new trial in which the substantial evidence of his innocence could be introduced. The denial of a new trial at the state and federal level has been based on a Texas rule which bars court review on any evidence of innocence brought forward more than 30 days after the trial conviction. Graham's current lawyers started looking at his case 12 years after his conviction. His appeals have also been hampered by the 1996 Anti-Terrorism and Effective Death Penalty Act, which greatly restricts federal appeals by death row inmates.

Graham's appeals are exhausted. His lawyers have filed a writ of certiorari with the U.S. Supreme Court. This writ is currently pending. If this is denied, only Governor George W. Bush and the Board of Pardons and Paroles, which he appoints, stand between Graham and state murder. A large and vocal movement is the only thing that can make a difference. We need people to get involved in activism around this case, and to do everything possible to let the state of Texas know that they can't execute an innocent man.

ProDeathPenalty.com / Justice For All

HOLLYWOOD, MURDER AND TEXAS - DEATH ROW INMATE GARY GRAHAM AND THE ANTI-DEATH PENALTY MOVEMENT: A CASE STUDY OF LIES, HALF-TRUTHS AND INTIMIDATION

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

HOW THE GARY GRAHAM CASE BECAME A WORLDWIDE CAUSE CELEBRE'

1) JUSTICE FOR ALL believes this has been the most extensive and expensive campaign ever conducted by anti-death penalty forces for any one case. Amnesty International has sponsored rallies for Graham in many cities around the world. It is our understanding that Amnesty International (USA) solicited extra funds, from their membership, for their operating budget, because of a deficit created by their work on the Graham case. We have not been able to confirm this.

2) Religious, academic and political leaders from around the world have come to Graham's aid.

3) Many media sources have eagerly fallen for this fraudulent campaign (e.g. The New Yorker, New York Times, Washington Post, Nightline, LEAR's, Village Voice, etc.), some in spite of knowledge to the contrary.

4) Presented by Texas Sen. Royce West, Danny Glover stated his belief in Graham's innocence in an appeal to a session of the 1993 Texas Legislature. For his tireless efforts against the death penalty, in general, and on behalf of Graham, in particular, Glover was awarded "Man of the Year" by the National Coalition to Abolish the Death Penalty. Additional Hollywood stars have made public appeals on Graham's behalf: Ed Asner on "Good Morning America", Mike Farrell on "The Maury Povich Show", etc. Had they been lied to or did they just not care about the truth?

5) Graham advocate Susan Dillow has made appeals on Graham's behalf throughout the world, including a presentation to the British Parliament. As a direct result of that presentation, Member of Parliament Gerald Kaufman authored two letters on Graham's behalf and sent them to Texas Gov. Ann Richards. Those letters were co-signed by 38 additional members of Parliament.

6) Rep. John Lewis (D-GA) presented an appeal on Graham's behalf to a session of the U.S. House of Representatives in 1993.

7) Organizations such as Amnesty Intl. and individuals such as Danny Glover have earned the right to be highly respected in the civil and human rights struggles. Their dedication and contributions are recognized and admired by JFA. In viewing Graham Coalition material, it is highly probable that Glover, and maybe others, were originally lied to about this case. By the time they became aware of the lies of Graham and others, the case had become a worldwide cause celebre', thus making it difficult to back away from: The cost to the anti-death penalty movement would just be too great. There cannot be any excuse for those Graham supporters who continued their support after this fraud was exposed. Ignorance and aversion to the truth was strictly voluntary.

8) Former Texas Governor Ann Richards stated that she granted the stay of Graham's execution based on questions about the case. She would not say what those questions were, nor would she state if those questions were ever resolved. She further stated that she did not want to publicly discuss this case, fearing that she may improperly influence future decisions (Governor Richard's letters.) We find it strange that Governor Richards had no problem commenting publicly on another high profile Texas death penalty case, that of Vermont native Robert Drew. JUSTICE FOR ALL and Graham's Coalitions agree on one thing: Hollywood's involvement in Graham's case was crucial to Governor Richard's stay.

9) JFA makes sure that all known Graham supporters receive our information on this case. Conversely, those supporting Graham will not give us any of their material. Why do you think that is? Specifically, any complete investigation of this worldwide fraud should include all published material produced by Graham supporters including Amnesty Intl., NCADP, all GGC flyers, all ENDEAVOR Newspapers, all Graham Legal Defense Fund Newspapers, all films about this case, a complete NEXIS search for all articles about this case. Based upon our limited research, the amount of false and misleading information produced by Graham supporters and irresponsible journalists will be staggering.

10) The six wealthiest known supporters (?) of Graham are collectively worth over $1,000,000,000. Why are Graham's Coalitions constantly holding fund raisers in Houston (and we presume elsewhere) when 1/10 of 1% interest on $1,000,000,000 is $83,000/month or $1,000,000/year? We believe that many Graham supporters have withdrawn their support because they have learned, from JFA, that they were lied to.

11) JUSTICE FOR ALL believes that the anti-death penalty movement will have injured their credibility for years, WHEN the media fully investigates the case and the way it was orchestrated by that movement. 12) In the event that Graham's campaign is either successful in overcoming the integrity of the judicial process or he is ultimately executed, Graham's coalitions will likely continue to use their false claims. The end will always justify the means.

I. SUMMARY

On May 13, 1981, at 9:35pm, Bobby Grant Lambert was robbed and murdered in a Safeway parking lot in north Houston, Texas. Four out of the original five witnesses described the murderer as a young, thin black male, from medium height to tall. On May 27th, 17-year-old Gary Graham, a 5'9", 145 lb. black male, was positively identified as Mr. Lambert's murderer by Bernadine Skillern, the one eyewitness who clearly saw the killer's face. Five months later, Graham was convicted of the murder and sentenced to death. Graham had been previously arrested on May 20th for a crime spree that included at least 22 criminal episodes, which involved 20 armed robberies, 3 kidnappings, 1 rape, and 3 attempted murders; a crime spree which was later found to include the murder of Mr. Lambert. There are 28 known victims of this crime spree, resulting in 19 eyewitnesses who have positively identified Graham.

Twelve years later, the tireless efforts of Susan Dillow, Graham's California pen pal, and actor Danny Glover began to publicize what they originally believed to be the pending execution of an innocent man. Their efforts resulted in a worldwide campaign to free Gary Graham. There are, primarily, three reasons why this campaign has been so successful:

(1) Those initial efforts stimulated the interest of media, of additional well-meaning individuals and of anti-death penalty forces. As some of Graham's supporters began to learn the true facts of the case, their voices grew silent. Other, more high profile supporters, who have tied their reputations to Graham will not disentangle themselves from this dishonorable fraud. Are they afraid of looking even more foolish? Some, like Kenny Rogers, are honorable enough to publicly withdraw their support (2/5/94 TV Guide). Many others have quietly withdrawn.

(2) The coalition of anti-death penalty individuals and organizations will use any means necessary to achieve their goals, regardless of the guilt or fabrications involved. All of Graham's support comes from those who are either ignorant of the case facts or from those dishonorable enough to ignore the facts altogether. Orchestrated through Amnesty International and public relations firms in New York (Riptide) and Texas (Steven Hall), this campaign has invested millions of dollars, worldwide, to promote Graham's false claims. JFA believes that this has been the most extensive and expensive propaganda campaign ever conducted by anti-death penalty forces, for any one case.

(3) With no evidence of investigative journalism, some members of the worldwide media, notably Nightline, the New Yorker (8\16\93), The New York Times (Injustice in Texas, 6/3/93 and Dead Man Walking, 5/26/93), The Washington Post (5/29/93, 8/1/93 and 8/18/93) and LEAR's (3/94), have contributed to this fraud - with some intentionally disregarding known facts. (Reviews upon request.) Fortunately, the thorough investigative work of Susan Warren (Houston Chronicle , A Compelling Case for Murder, 7/4/93, etc.) and Gregory Curtis (editor, Texas Monthly Magazine, Graham-standing, 10/93) has provided conclusive evidence that Graham's claims have no merit. Curtis states, "In every case they (the witnesses supporting Graham) are changing their stories, often fairly abruptly, from what they said or testified to twelve years ago..... New witnesses have materialized out of thin air..... My prediction is that as the case goes on, thrill seekers like this will continue to appear." The Texas Attorney General's Office agrees, calling the new evidence and revised witness statements "stone-cold manufactured evidence".

The pro-Graham movement is a cynical fraud wherein lies, half-truths and intimidation have come together in an attempt to free the guilty and punish the law abiding. This movement has nothing whatsoever to do with the guilt or innocence of Gary Graham. If not for the death penalty, few people outside the immediate scope of the Graham murder case would have heard of Gary Graham. The pro-Graham movement is mounting an assault by death penalty opponents to abolish the death penalty in Texas and throughout the United States. But for most Texans, it is more than that. It is an attack on our safety. In Gary Graham they have picked the wrong person and, clearly, the wrong case.

Note: JUSTICE FOR ALL, a criminal justice reform organization, produced this report in order to challenge a world wide fraud perpetrated by Gary Graham's Coalitions (GGC) and the anti-death penalty movement. Should you require any supporting documentation, we are at your service. JFA enthusiastically welcomes all challenges to this report.

II. THE DIRECT APPROACH: LIES AND GARY GRAHAM'S COALITIONS

INTEGRITY should be the building blocks of all just causes, particularly one involving a death row inmate whose supporters claim was wrongfully convicted. Unfortunately, Gary Graham's Coalitions ("GGC") and their many participants (including, Susan Dillow, Danny Glover, Amnesty International, The Texas Resource Center, The National Coalition to Abolish the Death Penalty, etc.) need to be much more careful in their statements of "fact". Each of the following paragraphs begins with GGC statements, usually followed by a bold False, indicating the falsehood of that statement, then followed by the factual information, as per the record. Most of the literature is taken directly from GGC material and/or Texas Resource Center attorneys' statements, and is not taken out of context.

FALSE CLAIM 1 - Bobby Lambert was shot in a dimly lit parking lot.

False. Bernadine Skillern, the unwavering eyewitness had no problem identifying Graham. Stated Skillern, "You can see very clearly." Other witnesses and three policemen testified that there was adequate lighting to make an identification. Wilma Amos testified that the lighting "was good." (Trial Testimony.) Furthermore, GGC often state that there were only two lights in the entire parking lot. Half-Truth, Misleading. What GGC doesn't say is that there were at least two light posts with a total of four lights and that all four lights were close to the murder scene. Two of the lights were within two parking spaces of the murder and thereby directly illuminated the murder scene (crime scene photos). Furthermore, Ms. Skillern's car was facing the murder scene from 26-37 feet away and her car's headlights further illuminated the murder scene and Graham's face. Graham, then walked within 10 feet of Ms. Skillern. (Crime scene evidence and trial testimony.)

FALSE CLAIMS 2, 3, 4 & 5

Graham was convicted and sentenced (2) to death by the questionable (3) identification of a single witness who saw the suspect for a "split second" (4) from a distance of approximately 35-44 feet. False 5. In her second viewing of mug shots (Graham's picture wasn't part of the first photo spread.) Ms. Skillern immediately picked out Graham, noting that his features, with the exception of skin tone, were the same. The shade of the skin in the photograph wouldn't allow her to make a positive identification and she stated she would need to see a live "line-up". She made an immediate, unequivocal, positive identification of Graham at the line up(F3). (Police and Trial Testimony.) Ms. Skillern testified that she saw the killer "full-face" three times, for 2 to 3 seconds, and had observed him for 60 to 90 seconds(F4), at distances ranging from a car length (10 feet) to 33 to 44 feet(F5). Graham was found guilty on the testimony of Ms. Skillern, but was sentenced to death because of the testimony of ten (10) additional Graham victims, other witnesses and the careful consideration of 12 jurors who felt that Gary Graham was a vicious killer who posed a continuing threat to society(F2). (Trial testimony and jurors statements.)

"For the people to say I'm tragically mistaken is an insult because I saw that man (Graham) and nothing will ever change that. He knows that I saw him (kill Bobby Grant Lambert) and I know that I saw him, and the Lord knows. I am not responsible for Mr. Graham's fate. He is." (Bernadine Skillern, Houston Post, August 15, 1993.)

Obviously, the jury agreed. The multi-racial jury voted 12-0, on the first ballot, for guilt in the guilt/innocence stage. The vote was 12-0 for death, on the second ballot, in the punishment phase. (10-2 on the first ballot.) All ballots were secret. (Juror Statements and Trial Records.)

FALSE CLAIMS 6, 7, 8 & 9

Four other crime scene witnesses did not identify Graham as the gunman and stated that the gunman was approximately 5'5" tall. False 6. Four out of the original five witnesses described the killer as a young, thin black male, from medium height to tall. Graham, a 17 year old black male, was 5'9", slim, 140-150 lb. Skillern stated he was 5'9" to 6', slender, 145 to 150 lbs. Dan Grady said he was tall and slim. Ron Hubbard said he was 5'5" to 5'6". Leodis Wilkerson described the killer as shorter than Lambert. Lambert was 5'9". According to GGC flyers, the killer must have been 5'8". Wilma Amos told police he was of medium height but that she couldn't remember how the killer looked. Incredibly, twelve years later, in April 1993, after speaking to The Texas Resource Center, Amos says it wasn't Graham and that the killer was 5'5". In videotaped testimony, aired at a mock(ery) trial in August, 1993, orchestrated by The Texas Resource Center, Ms. Amos stated that, "He (the killer) was no taller than me." Amos is 5'2". (The Texas Resource Center Videotape.) False 7 (see previous police statement). Amos also stated that, "...when I saw him standing there with that gun, I just closed my eyes." "...he just stopped for a second not far from the back of my car and then he took off..." (Trial and Videotape.) Amos (or Etuk) told defense investigator, Mervin West, "She thought he (Graham) had a similar build to the guy who did the shooting." (West's Affidavit) The newest witness discovery by The Texas Resource Center is Sherian Etuk who was working at the supermarket at the time of the killing. It is claimed that as of July, 1993, Etuk has looked at photographs of Graham, taken at the time of the murder, and is sure Graham was not the killer. Only one catch. At the time of the murder, Etuk's statement False 8. to police reveals that she never saw the man's face or the murder. The witnesses who could not identify Graham either did not see the killer's face, couldn't remember it, only saw a black man (the killer, an accomplice, anyone, who knows?) running through the parking lot or didn't see a gunman because they didn't see the crime. It is important to note that all of the witnesses describing the killer as of medium height to tall saw the killer standing. The other witnesses, including Hubbard, saw a black man of 5'5" to 5'7" running through the parking lot. A 5'9" running man would lose at least 4" in height due to bent ankles, knees, back and neck, which is the posture of a person in the act of running. (Trial, etc.) Hubbard originally told police he possibly could I.D. the killer. Later, at the live line-up, he told police and Graham's attorney's that he never saw the killer's face and couldn't I.D. anyone. (Police File, via GGC.) Leodis Wilkerson, who was 12 years old at the time of the shooting, witnessed Lambert's murder. His account of the crime scene, and that of two of his friends, in the car with him, was relayed to police by an adult relative. The statement was that they had seen a man running in the parking lot who they thought looked like Curley Scott, the boyfriend of Mrs. Brown's daughter. Scott, a 5'11", thin black male, was cleared of any involvement. (Graham's Legal Defense Committee Report, Winter, 1994). Half Truth, False 9 Dan Grady was unable to identify Gary. Grady couldn't identify anyone. He stated he could, maybe, I.D. the gun, but not the killer's face. (Trial). Bobby Lambert was wrongfully listed at 5'6" by the coroner. His height was correctly established at 5'9" in March 1994.

THE WILMA AMOS REVIEW

JUSTICE FOR ALL agrees with Graham supporters that Ms. Amos is the single most credible witness for Graham's defense. The following reviews the ever-changing testimony of Ms. Amos. Each point compares statements she has made regarding specific events. The comparisons are not taken out of context. 1) I never saw the gun vs. I saw the gun; 2) I went home (after the shooting) and drank a half a fifth of vodka vs. "I don't keep no vodka" vs. "I took a valium"; 3) the assailant was medium height (5'9") vs. 5'5" vs. 5'2"; 4) I saw the assailant twice vs. I saw the assailant 3 to 4 times; 5) I saw the assailant leave (the Safeway) before Bobby Grant Lambert vs. after; 6) Just as I got out of the store, I heard a shot vs. I left the store and went to my van, I saw the two men struggle and then I saw the man get shot; 7) the assailant stood 3 or 4 feet in front of my face vs. we were face to face vs. I was standing in the middle of my van and he was at the back of my van vs. I was at the front of my van and the assailant wasn't far from the end of my van; 8) the assailant stood there for a few minutes vs. a second; 9) I forgot how he (the assailant) looked vs. it is not Gary Graham; and 10) Amos doesn't remember being cross examined by defense attorney Ron Mock vs. there are over 15 pages of trial testimony, with well over 200 questions and answers involving Mock's cross examination of Amos. (Sources: Trial Testimony, Houston Press, GGC, The Texas Resource Center videotape, and Police File, via GGC.)

FALSE CLAIM 10

Two new witnesses (Malcolm and Lorna Stephens), unknown to prosecution and defense, have come forward, and said Graham was not the killer. One claims not only to have seen the actual murderer in 1982, 1983 and 1985 but also to have spoken with him. Half-Truth, Deemed unreliable. These witnesses have come up with conflicting and incredible statements, some totally contrary to the actual crime scene evidence, twelve years after the murder and after speaking with The Texas Resource Center. They both stated that they intentionally left the scene without approaching the police to give statements and now state that the man they saw could have been anyone. (review of statements and Houston Chronicle, July 4, 1993.)

FALSE CLAIM 11

Almost all the witnesses who have evidence and testimony that prove Gary Graham's claim of innocence have never been heard in a court of law or in impartial hearings. Totally false. None of those witnesses prove Graham's claims of innocence. Furthermore:

A. (1) Alibi-Witnesses: The affidavits of four purported alibi witnesses were presented in Graham's writ of habeas corpus (ineffective assistance of counsel claim) in 1987, six years after the original trial. Mr. Doug O'Brien, Graham's appellate attorney, presented two of the four witnesses at the writ hearing in 1988, where District Judge Don Shipley deemed them not credible. Their hearing testimony was truly incredible. In order not to injure Graham's case any more, O'Brien chose not to present the two other purported alibi-witnesses, one being Loraine Johnson. Furthermore, the judge determined that no one ever came forward, prior to the original trial date, as an alibi witness, and that Graham never submitted alibi witnesses to Ron Mock or Chester Thornton, co-counsels for Graham's defense, with the exception of a girlfriend that Graham said he was with the night of the murder, a girlfriend whose name, face and address he couldn't remember. (Hearing Record and False Claims 12 & 22 and pages 8-9, Paragraph A.2.b.) Funny that Graham couldn't remember his girlfriend, Mary Brown, who later became his wife. Maybe Graham is lying? Funny that Ms. Brown didn't come forward in 1981, but later came forward in 1986 as an alibi witness. Maybe it was another girlfriend? Funny that Graham said he was alone with a girlfriend the night of the murder and now we have four (five?) people who say they were with him. Funny we have two completely different stories from Graham and the alleged alibi-witnesses.

(2) Polygraph tests orchestrated by The Texas Resource Center are daily trumpeted by Graham's backers as proof that the four alibi witnesses are telling the truth. However, the head polygrapher for Texas' Department of Public Safety and Eric Holden, President of the American Polygraph Association, both conclude that the tests are not valid and are worthless. (Houston Chronicle, July 4, 1993.)

(3) Isn't anybody curious as to why none of these alibi witnesses came forward in 1981, knowing that Graham's life was on the line. They have all stated that none of them came forward on their own, that it was Graham's grandmother that got them together so they could give alibi statements to say Graham was with them. Defense attorney Thornton tried to get Graham's family members and friends to come forward to testify on Graham's behalf in 1981! Graham's family knew Thornton because he was also Graham's juvenile attorney (KPFT, 90.1 FM, Houston). Funny, no alibi-witnesses came forward then. Three of the four alibi witnesses are Graham's relatives and when asked why they did not come forward in 1981, they say "No one asked me." One of the alibi witnesses was Graham's girlfriend, Mary Brown, who later became his wife. If a relative (or lover and future spouse) of yours was on trial for murder, and you knew that they were with you the night in question, would you wait 5 years until someone asked you to come forward? (See page 9., 2.b.)

B. Crime Scene Witnesses: Virtually all of the crime scene witnesses offered prosecution, not defense, testimony, in 1981, if they offered any thing at all. Even Doug O'Brien, Graham's 1986-88 appellate attorney, intentionally did not present any crime scene witnesses at the 1988 court hearings. He didn't call them because they had nothing to offer for the defense. Only 12 and 13 years after the murder, has some of their testimony changed enough to be of use to the defense. (See False Claims 1-10 and page 8, Paragraph A.2.a.)

"In every case they (the witnesses supporting Graham) are changing their stories, often fairly abruptly, from what they said or testified to twelve years ago..... New witnesses have materialized out of thin air....." My prediction is that as the case goes on, thrill seekers like this will continue to appear." (Gregory Curtis, Editor, Texas Monthly, October 1993.)

C. (1) Gary Graham's defense claims have been reviewed 9 times by the Texas Court of Criminal Appeals (the highest criminal court in Texas), 2 times by the Texas Supreme Court, 4 times by the U.S. Supreme Court and in a total of thirty-three (33) judicial or executive proceedings. (Houston Post, July 29, 1993 and subsequent events, as of 9/8/96.)

(2) a. Federal District Court Judge David Hittner ruled that all of Graham's new evidence is not sufficient to entitle him to a federal hearing and refused Graham a hearing or a stay of execution. He also stated that several of Graham's new witnesses were not credible. (Houston Post, August 16, 1993 and Houston Chronicle, August 14, 1993.)

b. After a thorough review of all the "new evidence", by himself and his staff, Texas Attorney General Dan Morales stated, "...that none of that new information is credible. There is no new evidence. Graham is stalling for time." The "new evidence" and "revised" witness statements are ""stoned-cold manufactured evidence." (Houston Chronicle, August 15, 1993, Houston Sun August 16, 1993 and The Texas Observer, August 20, 1993.)

c. On April 26, 1993 after a thorough review of the "new evidence" the Texas Board of Pardons and Paroles voted: (Houston Post, August 13, 1993.); 12-5 Against a hearing on new evidence.12-1 Against recommending commutation of Graham's sentence to life.10-7 Against a stay of execution.13-0 Against a conditional pardon.The Board found that there is "no credibility to any of the alleged new information". (Houston Post, August 14, 1993.)

d. The Houston Post agrees that the new evidence is not credible. (Houston Post, August 13, 1993.)

FALSE CLAIM 12

Mervin West, a former police officer and private investigator for Gary Graham's defense lawyers in a sworn affidavit (dated 1993) swears "...we assumed Gary was guilty from the start, we did not give his case the same attention we would routinely give a case. Gary Graham gave Ron Mock a list of alibi witnesses. I did not talk to any of Gary's alibi witnesses." Half Truth and Contrary to the Evidence. The same affidavit states that West, "Recently found the 'lead sheet' from Gary's case. It had only two individuals on it." These two individuals were crime scene witnesses. There were no alibi witness names in the file. The "lead sheet" is where West kept the names of witnesses in his case investigations. "The black female was helpful even though she could not identify Gary as the shooter. She thought he (Gary) had a similar build to the guy who did the shooting." In a later affidavit, April 22, 1993, West stated, in recalling events twelve years ago, that his memory "could be faulty as hell due " to being "without oxygen for a long, long, time, resulting in some brain cell destruction and significant memory loss." "I am totally aware of the fact that I have before recalled an event one way when it in fact occurred an entirely different way, and that there are holes in my memory." (April 22, 1993 Affidavit.) West's own file notes, revealed in the first affidavit, support the prosecutor's case. West's recollections, in the first affidavit, are not only contradicted by the hard evidence in his file, but are made void by his second affidavit. Furthermore, defense attorneys Mock and Thornton both met extensively with Graham prior to the 1981 trial. They have both stated that Graham never mentioned alibi witnesses, with the exception of a girlfriend whose name, face and address Graham could not remember. (See False Claim 11 and Paragraph A.2., pages 8-9)

FALSE CLAIMS 13, 14 & 15

(Regarding the gun and ballistics report) the Prosecutors gave jurors a false impression that Gary Graham was guilty. False 13. The gun was not introduced until after Graham had been found guilty. A medical examiner testified at the trial that the victim, Bobby Lambert, was killed by a .22 caliber bullet. Later, a Houston Police officer testified that a .22 caliber pistol was recovered from Graham at the time of his arrest. Half-Truth, Misleading. The police officer did not testify until the punishment phase, after Graham had been found guilty. Yet the D.A. had in its possession a ballistics report (withheld from the defense) that concluded that the fatal bullet was not fired by Mr. Graham's gun. False 14 & 15. The defense also had a copy of the ballistics report, but did not challenge the gun issue. Had defense counsel brought it up, that would have opened the door to Graham's nine (9) other weapons and their attendant crimes and 27 additional victims, none of which or whom was introduced in the guilt/innocence stage of the trial. (Trial Testimony and Houston Chronicle, August 19, 1993.) JUSTICE FOR ALL contends the bullet was fired by Graham's gun, just not one of the 10 in his possession.

FALSE CLAIM 16

Ashanti Chimurenga, Amnesty International lawyer, has repeatedly stated that Graham victim Greg Jones (attempted murder, aggravated robbery) told Gary Graham's son, Gary, Jr., that he (Greg) wanted his father (Gary) dead. (1590 AM, Houston, Rev. Boney's radio show) Cruel, Slanderous and False. This encounter was witnessed by a dozen people and was reported in the press as follows: Greg Jones said to Gary Jr., "I don't have any ill will towards you and hope that you have a good life." Stated Jones, "(Graham's children) are just fighting for their father's life and I think they should do that." (Houston Chronicle, Oct. 2, 1993). Greg Jones personally called Rev. Boney, the Houston leader for Graham's Coalitions, and asked him to correct these false and slanderous statements. No correction was aired. Ms. Chimurenga persists. The Houston Chronicle called that brief meeting between Jones and Gary, Jr. "a gesture of peace." Note: Ms. Chimurenga has spoken to many groups on behalf of Amnesty International and GGC. Her speeches reflect much of the FALSE material from GGC and some of those speeches have been filmed.

And the question remains, "Why is it necessary for Graham and his supporters to consistently lie about the case if he is innocent?" For the past twelve years, the only witnesses whose testimony has remained steadfast and unerring have been that of Bernadine Skillern, the ten (10) victims and witnesses who testified against Graham during the punishment phase of the trial and the additional victims of Gary Graham.

III. THE CYNICAL APPROACH: GARY GRAHAM AND THE "ENDEAVOR"

GARY GRAHAM is a founding editor and writer for the Endeavor newspaper, an anti-death penalty, death row inmate publication, funded by Amnesty International and the National Coalition to Abolish The Death Penalty, among others. It does, however, seem to be a propaganda rag which appears to slander a witness and to lie to support Gary Graham's defense. What do Endeavor and Gary Graham have to say about the case? The Endeavor material is taken directly from the newspaper and is not taken out of context.

FALSE CLAIMS 17 & 18

Graham was convicted solely on the fabricated testimony of one witness (Bernadine Skillern) who was coerced into identifying Graham. Graham ponders: What relationship did Skillern have with Bobby Grant Lambert (the murder victim)? Did Skillern have a criminal record? If any, what kind of deals were made in exchange for her fabricated testimony? (Endeavor, Summer 1992 and Spring 1992.) Slanderous and False. Absolutely no evidence has been brought forward by either side to support any of this.

FALSE CLAIM 19

"... it was reported that (defense attorney) Mock and Skillern had been acquainted for a number of years. Perhaps that explains why Mock was reluctant to discredit Skillern's testimony..." (Endeavor, Spring 1992.) Slanderous and False. Absolutely no evidence has been brought forward by either side to support this.

FALSE CLAIMS 20 & 21

Graham wrote that he had robbed six or seven people but that, fortunately, none of those were seriously injured, physically. (Endeavor, Spring 1992.) Outrageously False. Graham pled guilty to ten aggravated robberies, wherein he attempted to murder two victims, one was shot in the neck and the other in the leg. Reportedly, the leg could not be saved. One victim, a 57 year old woman, was kidnapped and repeatedly raped. Pistol whippings and terror were common tools of Graham's trade. Eleven (11) additional cases have been cleared with the identification of Graham's involvement. In one of those cases, David Spiers became another man shot in the leg. He nearly lost his leg and his life. Both David and his fiancée positively identified Graham. It was two years before the victim could walk unaided. And, of course, Bobby Lambert was murdered. (Houston Post, 5/23/81, etc. and Police file information released as per Open Records request by the Texas Resource Center, 1993.)

FALSE CLAIM 22

Graham states that he had the four alibi witnesses sign affidavits. JFA believes that he did in fact do that. Graham further states that his two alibi witnesses who testified in the 1988 hearing, "...both attested to the fact that prior to my trial I had informed them that my state appointed lawyer (Mock) would be calling them to testify." (Endeavor, Winter 1993.) Totally False. The opposite was true. Both witnesses testified that they had never heard from Graham prior to the trial. (1988 Hearing Testimony.)

FALSE CLAIM 23

Characteristically, in the kidnap, rape and robbery case, Graham actually accuses the victim of robbing him. (Endeavor, Spring 1992.) False. Graham pled guilty to aggravated robbery in the case. After Graham passed out in her apartment, the rape victim testified to getting her money, and some of Graham's, from his wallet. She also testified that: "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." (Trial Testimony.)

FALSE CLAIM 24

Graham further states that he knows he never killed anyone, and he simply cannot understand how or why someone would claim otherwise. (Endeavor, Spring 1992.) False. Graham told one robbery victim, Rick Sanford, that he had killed six people already and if the victim wanted to be seven to do something stupid (Trial Testimony). To the 57 year old rape victim, Lisa Blackburn, Graham stated, "I have already killed three people and I'm going to kill you. You don't mean nothing to me bitch." (Trial Testimony and CBS, Channel 11 News, Houston, 10:00pm, July 29, 1993.) In addition, to Ms. Blackburn Graham stated "I don't have nothing to lose. I don't plan to get caught. If I get caught, I burn, and I'm not getting caught." (Trial Testimony.) To one of the shooting victims, David Spiers, Graham said, after I kill you, I am going back (to your broken down car) to kill your fiancé and her parents so they can go with you to "honky hell". Before I kill your fiancé I'm going to rape her. (From David Spiers' letter.) Michael LeRoy Breazeale was arrested for attempted murder in January 1982 and was put in a cell next to Graham at the Harris County Jail. Graham told Breazeale that, not only did he shoot this guy from Arizona (Lambert), but that he enjoyed it and that he had shot other people and that we are all prey out there. Graham stated "I've already killed a tourist and I'll kill you too. You're just a tourist in jail." (Public News, Houston, July 9, 1993.) After making victim Richard Carter, Jr. kneel down and after putting a shotgun in his mouth, Graham stated, "I'll kill you, too. Blowing away another white mother fucker don't mean nothing to me." (Trail Testimony). For four (4) consecutive days after the trial, Carter received phone calls, calls he believes were from Graham, where the following was said, "I'm going to kill you when I get out. I'll hunt you down and kill you before I die". (Richard Carter Statement.) After the death sentence was imposed, court bailiff Larry Pollinger escorted Graham to a holding cell. Graham stated, "Next time, I'm not leaving any witnesses." Pollinger reported the incident the same day to Assistant Harris County District Attorney Carl Hobbs, who confirms the account. (Newsweek, August 9, 1993.) Truly, it was only providence that saved the many intended murder victims above.

DAMAGE BY THE ENDEAVOR

As the founder of and writer for the ENDEAVOR, and as the President of THE ENDEAVOR PROJECT, Graham's lies and distortions taint every story by all death penalty abolitionists, including death row inmates, who write for any publication. This seems to be of little concern to those who support the anti-death penalty movement and the ENDEAVOR. Those participants in Graham's Coalitions and in THE ENDEAVOR PROJECT who stand by and do nothing when fraud becomes an integral part of strategy have become a source of betrayal and distrust that has an adverse affect on that movement. Those who actively participate in the lies and distortions, if allowed to continue, will cause grievous harm. The abolitionist movement has squandered millions of dollars and man-hours on fraudulent cases. As lies, half-truths and intimidation continue to be the foundation of these worldwide causes celebre', the abolitionist movement will continue to loose credibility. It happened to the Shepherd Boy who cried wolf and it will happen to these frauds as well.

Note: The Endeavor ceased publication for most of 1994. JUSTICE FOR ALL believes that occurred because the lies finally caught up to them. In the Winter 1995 Endeavor, Graham did not mention one word about his case. Maybe Graham and his fellow Endeavor writers and editors will attempt to stop lying or, at the very least, limit their tales to half-truths. Graham's well documented lies and distortions have been so blatant that, should Graham somehow get any opportunity to testify, his attorneys would have to advise him to keep quiet. (JUSTICE FOR ALL). "In short, Gary Graham is a liar, a fact that should trouble those who are staking their time, effort and reputations on his claims of innocence. Even worse, his writings reveal him to be cold enough to be a killer after all." (Texas Monthly, October 1993.)

IV. INADEQUATE COUNSEL? AND THE TEXAS CRIMINAL JUSTICE SYSTEM

Pro-Graham supporters have consistently attacked Graham's attorneys' defense and the State of Texas, both of which, they say, contributed to a terrible miscarriage of justice. Let's look at the facts.

A. Inadequate Counsel: Graham supporters have specifically targeted Ron Mock, one of Graham's 1981 attorneys. Somehow Chester Thornton, Graham's 1981 co-counsel, and Doug O'Brien, Graham's first appellate attorney, have escaped their wrath. Thornton knew Graham's family because he was also Graham's juvenile attorney. Thornton contacted Graham's family members for the trial in 1981, hoping to get them to come forward on Graham's behalf. Funny, no alibi witnesses came forward then. Thornton was equally responsible for Graham's defense. Doug O'Brien had every opportunity to present all of Graham's known alibi and crime scene witnesses at Graham's 1988 hearing. Why didn't he? See 2.a. & 2.b., below.

1) Target Mock - The GGC has made a mission of ruining Mock's reputation, to destroy him professionally, economically. Why?

a. Make Mock Capitulate - Graham supporters believe that if enough damage is done to Mock's professional, economic life, that Mock may assist them in their efforts. To a small degree that pressure may be getting to Mock. States Mock, "...when you're talking about killing somebody on the testimony of one eyewitness, it bothers me." This was the first time in 12 years that Mock publicly expressed this concern. Conversely, over the past 12 years Mock has repeatedly stated his confidence in the trial. (Houston Press Feb. 16, 1994. JFA's reviews of Houston Press articles regarding this case are available upon request.) (See False Claims 2-9.)

b. Mock's Capital Trial Record - Graham's supporters have repeatedly attacked Graham's attorneys' competence, based upon the fact that 12 of Mock's 16 capital case clients have ended up on death row. What they don't tell you is that Harris County (Houston) juries sentence murderers to death in 75% of those cases where the District Attorney's Office, the Penal Code, the crime and the evidence deem capital punishment appropriate (see Page 9, Paragraph C.) Mock's capital trial record is identical with the sentencing record of Harris County juries. Furthermore, Ron Mock is noted as consistently taking the worst of the worst cases, cases often turned down by other attorneys. Mock does, however, have a mixed reputation (Houston Press, 2/16/94) . His handling of the Graham case is under attack, however, because, 1) that is part of the agenda to free Graham and 2) Graham's supporters argue that another trial strategy would have exonerated Graham. Although that is FALSE 25 (see A.1.c. and A.2. and 3., below), it is easy propaganda fodder.

c. Ineffective Assistance of Counsel claims are almost standard in death row appeals. However, to prove this claim, Graham's new attorneys must prove that Mock's and Thornton's trial strategy (see A.3., below) was not sound strategy. Not surprisingly, in Graham's case, all state and federal courts have, so far, rejected this claim. "That Graham's attorneys kept their client's myriad armed robberies and shootings from the jury is a fact conveniently overlooked by those so critical of the conduct of the trial." (Texas Monthly, October 1993.)

2) Lack of Investigation - Graham supporters claim that the defense's lack of investigation is what led to Graham's conviction. What did the defense team know in 1981?

a. Eyewitnesses - In 1981, Amos, Hubbard, Etuk, Wilkerson and Grady couldn't identify the killer as Graham, or as anyone else. Nor could they, or did they, say it wasn't Graham. Skillern positively identified Graham. Skillern, Grady, Amos and Wilkerson all identified the killer as a young, thin black male, from medium height to tall. Graham was 5'9", 145 lbs. Amos (or Etuk) described the killer as having a similar build to Graham. Malcolm and Lorna Stevens did not come forward until 1993. (See False Claims 6-10 and 12).

b. Alibi-Witnesses - Loraine Johnson (one of the 4-5 purported alibi witnesses) states, in 1993, that she told Mock or Thornton, at the 1981 trial, that she was an alibi-witness. Not only do Mock and Thornton both deny being told that, Doug O'Brien, Graham's appellate attorney (from 1986-88) also denies being told that. O'Brien even refused to put Ms. Johnson on the stand in the 1988 appeals hearing. Ms. Johnson curiously forgot to mention that purported 1981 conversation in her 1987 affidavit. She decided to wait twelve years before swearing to this purported incident. The purported alibi-witnesses first came forward in 1986, five years after Graham's trial. (See False Claims 11, 12, & 22.)

c. The Single Eyewitness - Because of Graham's voluminous criminal pursuits, it was mandatory that defense counsel prevent Graham's criminal rampage from entering the guilt/innocence stage of the trial. Counsel knew that Graham's only chance to avoid life imprisonment or the death penalty was to get a verdict of innocent. Therefore, defense strategy consisted of challenging the single eyewitness in an attempt to create "reasonable doubt" in the minds of the jury. This is precisely what Mock and Thornton told jurors when the trial was over (Jurors' statement). Had defense counsel allowed any testimony into the trial which opened the door to Graham's other "similar crimes", then charges of inadequate defense counsel would be justified. (See False Claims No. 20, 21 & 24, & Chapters VI & VII.) 1981 Presiding Judge Richard Trevathan, who has served in numerous murder trials as either prosecutor, judge or defense attorney, called Bernadine Skillern: "...The most impressive and believable witness (I) had encountered in twenty (20) years of courtroom experience." (Human Events, September 4, 1993.) (See full bold paragraph on page 15.)

d. The Gun Issue - (See False Claims 13, 14 and 15).

3) The Victim: GGC have relentlessly attacked the character of Graham murder victim Bobby Lambert. They state that Lambert was the victim of a professional hit because of Lambert's alleged cons and drug activities. (GGC public access video, other publications.) LUDICROUS. Even the testimony of GGC prize witness, Wilma Amos, rebuts such an assumption. GGC further states that Lambert's roommate mysteriously disappeared and was never questioned in the murder. FALSE 26. Even one of Graham's attorneys, Robert Jones, stated that the roommate had been questioned. He was released because he was not a suspect. (Rev. Boney's radio show, KYOK 1590 AM, Houston). Ashanti Chimurenga (Amnesty International) states that Lambert's van contained illegal weapons. FALSE 27. Lambert was moving from his home in Arizona. As such, his van was full of his belongings, including 3 legal shotguns. A small amount of marijuana was found in the glove compartment. This red herring goes on and on and on.

B. Perjury and Threats Against Witnesses: We call on the Harris County District Attorney, the Texas Attorney General and the U.S. Justice Department to investigate the ever changing testimonies of Graham's new and old witnesses and the involvement of The Texas Resource Center and other attorneys, therewith. Furthermore, such investigations should review the threats and acts of intimidation against Bernadine Skillern and the other victims/witnesses who have or would testify against Graham.

C. The Texas Criminal Justice System:

1) The Texas Death Penalty - Request JFA’s Death Penalty and Sentencing Information report.

2) The 30-Day Rule - Texas had a rule whereby new evidence must be introduced within thirty (30) days of conviction to be considered. However, the thirty (30) day rule existed in Texas, and fourteen (14) other states, precisely because of the kind of fraudulent claims presented in the Graham case. The search for evidence generally takes place for four (4) months to a year or longer before trial--then an additional thirty (30) days after trial. Graham's attorneys have, however, presented his voluminous record every step of the way, one review involving a hearing, with witness testimony. This evidence was heard and/or ruled upon many times over the past 15 years. Did the thirty (30) day rule affect the 1988 hearing or the additional thirty-two (32) case reviews up through 9/1/96? No. The important question is, "Have judges and district attorneys rejected a hearing on compelling, credible evidence of innocence in Graham's case?" The answer is, again, no. HEARINGS ARE NOT ORDERED ON THE BASIS OF NOT CREDIBLE EVIDENCE.

3) Racism - a. The Texas Criminal Justice System. Graham supporters consistently refer to the Texas Criminal Justice System as racist. Let us review the actions of that system, in Graham's case: seven (7) stays or delays of execution over the past fifteen (15) years; thirty-three (33) judicial or executive reviews of Graham's claims, twenty of which were state reviews, including complete reviews of all of Graham's evidence as presented by Graham's attorneys (as of 9/1/96). All courts of jurisdiction that have reviewed the evidence, as presented by Graham's attorneys, have deemed it not credible. The U.S. Supreme Court (4 times), and all other Federal Appellate Courts, have denied Graham's appeals, after complete reviews of all the evidence presented by Graham's attorneys. (See Chapter V and request JFA’s Death Penalty & Sentencing Report).

b. Imposition of the Death Penalty in Harris County (Houston) Texas. A thorough examination of the death penalty, as imposed by Harris County (Houston) juries, since 1982, found that there was no pattern of discrimination. The death penalty was imposed on white and black murderers in proportion to the capital offenses committed by those race classifications. (The Houston Post, 10/16/94) (See Chapter V and request JFA’s report DEATH PENALTY AND SENTENCING INFORMATION in the United States)

4) The Texas Board of Pardons and Paroles - The Parole Board has some problems, namely Kenneth McDuff, Raul Meza, Michael Blair, and James Granberry among many others. However, any problems the Board might have are not involved in their handling of the Graham case. The Board recognized, as did the Texas Attorney General's office, that the "new evidence" and "revised" witness statements are "stone-cold manufactured evidence". (Texas Observer, August 20, 1993.)

Highly respected U.S. Congress Member Rep. John Lewis (D-GA) was so compelled by the false and misleading material presented to him by GGC that he spoke on Graham's behalf before the House of Representatives. (Aug. 1993). Representative Lewis has since been sent 2 copies of this report. The Congressional Black Caucus (CBC) had announced plans to come to Texas on Graham's behalf in the fall of 1993. After many CBC members received this report, that trip was canceled.

V. THE CASE FOR RACISM AND INTIMIDATION

JUSTICE FOR ALL contends that the charges of racism have been used, repeatedly, and will continue to be used by the pro-Graham movement in an attempt to intimidate Texas State officials and opponents of that movement and to give the false impression that Graham's death sentence was the result of racial bias. The endless, unsubstantiated claims of racism in this case have done nothing but further erode the credibility of Graham's Coalitions and the anti-death penalty movement. Let's look at the facts.

A) Graham's trial jury was multiracial. Their verdict and sentencing unanimous.

B) Ron Mock and Chester Thornton, Graham's co-counsel for Graham's defense are black.

C) Bernadine Skillern, the unwavering and courageous eyewitness to the murder of Bobby Grant Lambert, is black. Ms. Skillern has repeatedly stated that: "This is not a black and white issue, it is a right and wrong issue."

Pro-Graham supporters passed out flyers throughout Ms. Skillern's neighborhood and elsewhere, identifying her by name, falsely, as the sole, questionable eyewitness who was sending an innocent man to his death. Only one reason exists for such an effort - that fear and intimidation will subject a witness to such distress that she would recant her testimony. As a result of those flyers, Graham followers repeatedly egged Ms. Skillern's house and car. She received threats of physical harm and lives in fear for her life. She was forced to get an unlisted phone number. She had to hire an attorney to protect her rights and she became a virtual recluse and prisoner in her own home and was ultimately forced to move from her home. All for doing her civic duty and coming forward with the truth. She did not, however, succumb to this dishonorable and cruel treatment. Her testimony remains unshakable. "If the police had placed 100 photographs of people matching the description which I gave of the killer and among those 100 photographs there was 1 photograph of Gary Graham, I, absolutely, would have selected his picture. Graham killed Bobby Lambert and I saw him do it." (Bernadine Skillern.) See bold paragraph, page 15.

D) The majority of Graham's victims were white. Graham repeatedly used racial slurs against his victims. However, JUSTICE FOR ALL doesn't believe Graham was anything more or less than a remorseless predator, seeking prey. We believe that he was an equal opportunity felon. To our knowledge the victims did not care that Graham or his accomplices were black. They cared that he was a vicious criminal intent on harm. "Never have we found the pain of a parent of a murdered child connected to the race of the killer. Victims are overwhelmingly 'Loss-Conscious', not 'Race-Conscious'." (JFA) Society, individual victims and survivors paid a heavy price for the carnage wreaked by Graham. A price rarely, if ever, acknowledged by Graham or his supporters.

E) After a complete review of the "new evidence", as presented by Graham's defense team, in April 1993, the Texas Board of Pardons and Paroles voted, overwhelmingly, against Graham's request for an evidentiary hearing, finding the "new evidence" insufficient and not credible. The Board is multiracial.

F) Texas Attorney General Dan Morales has been accused by the pro-Graham movement of being racist and immoral because he found Graham's "new evidence" not credible and is, therefore, pursuing his execution. Morales is Hispanic. (Houston Chronicle, August 14, 1993.) All who know Morales find these claims totally ludicrous. Those who reviewed the case in the multi-racial Attorney General's office concluded that Graham's attorneys have presented "stone-cold manufactured evidence." (Texas Observer, August 20, 1993.)

G) Graham supporters consistently refer to the Texas Criminal Justice System as racist. Let us review the actions of that system, in Graham's case: seven (7) stays or delays of execution over the past fifteen years; thirty-three(33) judicial or executive reviews of Graham's claims, twenty (20) of which were state reviews, always including complete reviews all of the evidence as presented by Graham's attorneys. Hardly a racist rush to the gallows. In addition, JUSTICE FOR ALL estimates that Graham could file 6-10 additional appeals, lasting through 2007 resulting in a full 26 years on death row. However, JUSTICE FOR ALL believes that The Texas Resource Center's latest argument, that lengthy stays on death row violate the constitutional prohibition against cruel and unusual punishment, will significantly speed up the execution of Graham and many other death row inmates in the United States. (see Lackey vs. Texas and Burdine vs. Texas, U.S. Supreme Court, March, 1995.)

H) Members of Graham's Coalitions accused victims' rights groups of forming a "white lynch mob" for supporting the state's capital murder case and for opposing the retrial of death row inmate Gary Graham. "That's the way it needs to be characterized because that's what it is..." said Susan Dillow, the white California accountant who is Graham's pen pal and major supporter. (Houston Chronicle June 24, 1993.) Mrs. Dillow was referring to rallies held in downtown Houston. Pam Lychner, herself a victim of violent crime, and an active victim's advocate, organized those rallies to show support for the many victims of Gary Graham and to counter Graham's Coalitions' fraudulent publicity campaign maintaining his innocence. In addition to victims of Graham, there were numerous members of Parents of Murdered Children, and other victims of violent crime present. Petitions were signed to fight the parole of Coral Eugene Watts and to protest the Court of Criminal Appeals decision ordering retrials in the murder cases of defendants Lionelle Rodriguez and Ernest Jenkins, the murderers of children Tracy Gee and Mark and Kara Kelley, respectively, and other cases. JUSTICE FOR ALL was an outgrowth of those rallies, which occurred in June of 1993. JUSTICE FOR ALL, a criminal justice reform organization, was founded in mid-July, 1993. Numerous people came to the rallies with posters calling for the executions of Gary Graham, Kenneth McDuff and others. That is a free speech issue, not a racial one. We will not distance ourselves from those who call for the execution of violent criminals, nor from those who condemn capital punishment. We hope to avoid those like Susan Dillow, whose comments stem from ignorance and insensitivity and whose motives, at least in this case, seem to be to fan the flames of division.

I) Members of Graham's Coalitions have stated that the criminal who attacked Pam Lychner was black. False 28. He is white. Rev. Boney has, reportedly, also said this on his radio show. Graham's Coalitions would like to portray Pam Lychner and JUSTICE FOR ALL's involvement in this case as racially motivated, a portrayal easier to manipulate if Pam Lychner's attacker was black. As other falsehood's have come back to haunt GGC, this one also has.

J) Ashanti Chimurenga, of Amnesty International, has stated that JUSTICE FOR ALL's involvement in the Graham case stems from our outrage that Hollywood would come to the aid of a black man in Texas. FALSE 29 and, we believe, intended to foster racial tension. As we have told all Graham's Hollywood supporters, in writing and on Good Morning America, The Maury Povich Show, etc. we welcome and support their work on behalf of civil and human rights. They should, however, have learned more about this case before becoming involved. In fact, it is Graham's Hollywood supporters who are outraged at being misled and lied to by Graham's Coalitions. (See False Claim 16.)

K) Fear and intimidation have been used repeatedly by pro-Graham supporters in an effort to stifle opposition. Remarks about the "consequences" and "unrest in the streets" if Graham is executed or not given a new trial have been made by Rev. James Dixon and Rev. Jew Don Boney. (Houston Post, August 16, 1993 and Houston Chronicle June 24, 1993.) The Rev. Dixon further warned the public that riots, similar to those in Los Angeles, could occur in Houston if Gary Graham is executed. (Endeavor Spring/Summer 1993.) THESE COMMENTS ARE HIGHLY INFLAMMATORY, TOTALLY IRRESPONSIBLE AND POTENTIALLY VERY DANGEROUS. JUSTICE FOR ALL calls for the peaceful employment of free speech, assembly and protest. Both men have contributed to Graham's fraudulent claims by distributing Graham Coalition literature to their congregations and followers. We call upon both men to distribute this letter to their congregations/supporters, as we have their claims to our membership. If the pro-Graham movement really believes in Graham's innocence why have lies, half truths and intimidation become the foundation upon which the movement has been built?

L) Update - Since JUSTICE FOR ALL's initial involvement in exposing the lies of Graham and his coalitions, we have been subjected to intimidation and harassment. From Nov. 94 - July 95, the harassment increased dramatically, to the extent we have had to get the Houston Police Department and Southwestern Bell involved. The timing of the increased harassment coincides with our mailings to British Parliament, the London Press, many Houston ministries and to all anti-death penalty organizations. While the Graham case makes up only a small percentage of JUSTICE FOR ALL's work, we feel it likely that our success in exposing this worldwide fraud of Graham's Coalitions has been the source of the intimidation and harassment. No harassment has occurred since July of 1995, coincidentally, the same time Graham’s Coalitions abandoned this fraud.

M) "If a disproportionate number of death row inmates are black, it is because a disproportionate number of criminals are black. Blame poor backgrounds, weak families, mean streets, bad schools, no jobs, or just plain bad people, whatever. A disproportionate number of criminals are black, Hispanic and other minorities. It is not lawless or racist to acknowledge that. It is honest." "Graham is not the victim here, his punishment is well-deserved and the execution, long overdue." "...each time (his trial and appeals) have failed, not because (Graham) is black or racially persecuted, but because he is thoroughly guilty." (Lori Rodriguez, Hispanic Columnist, Houston Chronicle, August 14, 1993.)

N) In USA Today (August 16, 1993), Danny Glover states that the Graham case "...like so many others, represents a growing pattern on the part of the 'justice' system to criminalize black youth." Mr. Glover and others don't understand that victims and other citizens believe Gary Graham was criminalizing the State of Texas. Some individuals are determined that those who commit violent acts should be known as the victims. JUSTICE FOR ALL demands that those who violently destroy the lives of others be held responsible. Tragically, black teen males are 9 times more likely to commit murder than their white counterparts, and are murdered 8 times more often. (U.S.A. Today, 4/25/94.) In 84%-94% of all murders, the killer and the victim are of the same race. Who do you think is the victim?

As racism is part of the world, so too is it present in the Texas criminal justice system. However, do not use the false claim of racism to support the ill conceived and dishonest effort to free a guilty man. (JUSTICE FOR ALL.)

VI. THE SAYINGS OF GARY GRAHAM

Most of the following Gary Graham quotes are from 1981 and are recounted by those who Graham victimized, noted in parentheses. (See False Claim 24, Page 7)

A. "I've killed six people already, if you want to be number seven do something stupid." (From kidnap/robbery victim Rick Sanford, 1981.)

B. "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." (From kidnap/attempted murder victim David Spiers, 1981.)

C. "I'll kill you, too. Blowing away another white mother fucker don't mean nothing to me." (From robbery victim Richard Carter, 1981.)

D. "I'm going to kill you when I get out. I'll hunt you down and kill you before I die." (From calls that Richard Carter received for four days after the trial, calls he believes were from Graham, 1981.)

E. "I have already killed three people and I'm going to kill you. You don't mean nothing to me bitch." (From the kidnap, rape and robbery victim, 1981.)

F. "I've already killed a tourist (Bobby Lambert) and I'll kill you, too. You're just a tourist in jail." (From Harris County Jail neighbor Breazeale, 1981.)

G. "(Murder victim) Lambert had an extensive criminal record and was known to the police as a 'con artist and a drug dealer'." 1992 This sounds surprisingly like "He (she) deserved it", the heinous defense used against rape victims. JFA (See page 9, A.4.) According to GGC, at the time of the murder, Mr. Lambert was, reportedly, under subpoena by a federal grand jury regarding drug activity.

H. "I'm just a hustler." (From robbery/attempted murder victim Greg Jones, 1981, just prior to smiling at Jones and putting a bullet through his neck.)

I. "When I knew Graham was going to rape me, I told him I was 60 years old. He then hit me in the face and then he said 'don't lie'. He said 'I'm going to fuck you in the ears and the eyes and every place else.'" (From the kidnap, rape and robbery victim who spent 5 terrifying hours with Graham, 1981.) (See False Claim 23.)

J. "I robbed six or seven people. Fortunately, none of those victims were seriously injured, physically." 1992. TOTALLY FALSE. (See False Claims 20 & 21.)

K. "I don't have one thing to lose. I don't plan to get caught. If I get caught, I burn and I'm not getting caught." (From kidnap, rape and robbery victim, 1981.)

L. "Next time, I'm not leaving any witnesses." (Right after Graham was sentenced to death, from court bailiff Larry Pollinger 1981.)

WHILE THE COVER HAS CHANGED, THE BOOK REMAINS THE SAME. - JFA

JUSTICE FOR ALL believes that Gary Graham has confessed to the murder of Bobby Grant Lambert and others. Although Graham's admissions of the number he killed varied and may reflect "macho" exaggerations, all of his victims were convinced of the authenticity of his admissions and his threats, a belief which is strongly supported by the proven cases of three attempted murders and one murder. In the event a hearing or new trial is ordered, JUSTICE FOR ALL looks forward to the above individuals, and many others, testifying.

VII. CONCLUSION

Consistently lying to sway public opinion and to fool Graham's well-meaning believers and the media has become a trademark of Gary Graham and some of his most outspoken supporters.

FALSE CLAIM 30 Graham states; "It was because of the other crimes that I had committed, that led to my conviction in this case because everyone automatically assumed I was guilty." (CBS, Channel 11 News, Houston, 10:00pm, August 3, 1993.) False. The jury knew nothing of the other crimes. Only after Graham was found guilty were the additional crimes presented for the punishment phase of the trial.

Gary Graham shows total disregard for the truth throughout his writings and interviews. More revealing, though, is the total lack of remorse which he exhibits for his many victims. Prophetically, Graham sarcastically reveals, "We make celebrities out of deranged killers while ignoring the needs of their victims." (Endeavor, Spring 1992.) Not once has Graham or his coalitions offered any assistance to Graham’s victims.

Danny Glover states that his high profile support of Gary Graham is based upon details sent to him by Graham backers. "The information provided me gave me the feeling that this man was innocent of the crime." (Newsweek, 8/9/93.) For Glover to base his involvement on feelings and propaganda, and not on factual considerations, is consistent with the immature, irresponsible support offered by Hollywood's crusaders for Graham. It should be noted that at least six JUSTICE FOR ALL presentations of the Graham case have been sent to Mr. Glover. Just one week after the 8/9/93 Newsweek article, Glover stated that the issue is not Graham's innocence (People, 8/16/93). Maybe he read this report after all. No Graham supporter has ever called us to question the material or asked us to supply verifying data. When Mr. Glover was in Houston in August, 1993, we tried to hand him another package. He rejected it. However, JUSTICE FOR ALL did deliver one to his driver.

JUSTICE FOR ALL does not reject information on this or any other case. Only those willing and eager to remain ignorant reject additional information on those subjects which they reportedly care about. Specifically, we request that Mr. Glover, Ms. Dillow, and all members of Graham's Coalitions send all their flyers, all Endeavor publications and any new witness statements to our offices. To date, they have not done so. Why do you think that is? How has JFA responded to this total lack of cooperation? JFA has supplied, and will continue to supply, all available information to Graham’s Coalitions as it becomes available. No request is required.

Susan Dillow, the tireless California pen pal of Graham states, regarding the supporters of Graham, "They care, they really, deeply care whether a black man in Texas, who comes from the 5th Ward in Houston, gets justice or not." Mrs. Dillow, we care about justice anywhere for anyone, regardless of color. We care that Mrs. Dillow is a contributor to Gary Graham's newspaper and to Graham's Coalitions, both of which consistently lie and tell half-truths about the Graham case and the frequency and brutality of his crimes. We care that Susan Dillow called the victims of Gary Graham a "white lynch mob". (Houston Chronicle June 24, 1993.) According to Mrs. Dillow, Rev. Jew Don Boney (co-founder, Gary Graham Justice Coalition) had previously turned down requests to help Graham and continued that reluctance until she said, "Okay, Jew Don, what's it going to take?" After she pledged $5,000, he began his efforts on the Graham case (Houston Press, September 9, 1993.) We agree with Rev. William Lawson's philosophy that what a preacher says from his pulpit really should come from some higher source than a paymaster.

We strongly support the presentation of any new credible evidence of guilt or innocence in all cases. We also support the victims of violent crimes, which includes all of society. We support witness Bernadine Skillern who has been threatened by Graham supporters, whose house and car have been pummeled with eggs, and who had become a virtual prisoner in her own home and was eventually forced to move. We care that this case may affect future victims' and witnesses' willingness to come forward.

We care that it is people like Gary Graham and those who support violent criminals who cause all of us, including those in Houston's 5th Ward, to live with the fear that keeps us prisoners in our own homes. We care that The Texas Resource Center's involvement in the Gary Graham case shows frightening similarities to the Black/Deckard fiasco, wherein Gary Deckard later reversed his trial testimony in Robert Black's murder trial after working with Eden Harrington, executive director of The Texas Resource Center and that, after said reversal, Deckard was indicted for perjury. Bond for Deckard's release was posted by Harrington and then Harrington took the Fifth Amendment when questioned in Deckard's perjury trial. (Houston Post May 23, 1981 and August 1, 1993.) We care that an inmate/witness has stated that The Texas Resource Center attorneys have asked him to perjure himself. (Houston Post, July 29, 1993.) We care that The Texas Resource Center attorneys are acting as federally funded P.R. liaisons for GGC, reciting falsehoods from GGC literature, as well as creating new lies on their own. We care that much of the "evidence", so publicly displayed by The Texas Resource Center, is part of their major public relations effort and, as such, is so fraudulent that they would never present it to a judge. We care that on August 14, 1993 the Texas Resource Center held a mock trial which demonstrated the level to which Graham's attorneys would sink. This public propaganda display used evidence and videotapes produced at taxpayer expense, in violation of the Resource Center's charter. With no cross examination and no review of prior, conflicting testimony, this mock(ery) trial violated legal codes of ethics and presented an excellent case for totally revamping the management of the Texas Resource Center. Eden Harrington was, soon thereafter, replaced as executive director of the Texas Resource Center (Houston Chronicle, 11/7/93). Update - We care that the systematic lies and abuses of The Texas and National Resource Centers caused all federal funding for these organizations to be terminated on September 30, 1995. We care that the tactics of The Texas Resource Center and the lies and abuses of the anti-death penalty groups, the Endeavor and the pro-Graham movement may have a long term, negative affect on those death row inmates who have credible claims of innocence.

We care that Graham's Coalitions have presented to our children that millions of dollars and dozens of celebrities can be used to support a truly vicious and remorseless criminal.

We care that... In all, nineteen (19) victims/eyewitnesses have identified Gary Graham as the car thief, kidnapper, robber, rapist, attempted murderer or murderer in twenty-two (22) separate criminal incidents involving a total of twenty-eight (28) victims. Graham has pled guilty to ten (10) aggravated robberies. Eleven (11) additional cases were cleared wherein eyewitnesses have made positive identification of Graham or where physical evidence or overwhelming circumstantial evidence tied Graham to the case. In one case, the murder of Bobby Lambert, he was found guilty. Every aggravated case involved the use of either a pistol or shotgun. Pistol whipping was not uncommon and many of the crimes involved an assortment of accomplices. The methods of operation for Gary Graham's crime spree are very similar, if not identical, in the vast majority of the cases, including the murder of Bobby Lambert. (Houston Post, May 23, 1981 and August 14, 1993, Houston Chronicle, August 15, 1993 and numerous other issues and Graham's crime spree report, released via The Texas Resource Center's open records request.) This litany of destruction does not include Graham's juvenile record, which is confidential.

Most importantly (for those who question the reliability of a "single eyewitness", such as Bernadine Skillern), 10 of the 22 cases involve a single eyewitness positively identifying Graham as the perpetrator. He pled guilty in 7 of those single eyewitness cases; cases 8 and 9 were cleared with the positive identifications of Graham; the 10th case is the murder of Bobby Lambert, the only capital case and, not surprisingly, the only case challenged by Graham. Even without the Lambert case, single eyewitness identification has a 90% success rate with Graham victims; with the Lambert case, it is 100%.

Everything in here is true and part of the record. Most importantly, EDUCATE YOURSELF! We challenge GGC or The Texas Resource Center to dispute these facts. In addition, you can verify this report through JUSTICE FOR ALL (we have all sources) or through Bernadine Skillern's attorney Rusty Hardin, or ask Gary Graham. Maybe Graham will tell you what he told Greg Jones just before he shot Greg in the throat.

"I'm just a hustler..."

To the Media and Graham supporters: You have been misled by Graham's Coalitions and the anti-death penalty movement once. Please, be thorough in your investigations and cautious in the future.

1) The false claims of Graham's Coalitions also appear in Graham's Endeavor newspaper. Example: False Claims 1 and 2 appear in the Spring/Summer 1993 Endeavor.

2) Gary Graham's Coalitions are known by a variety of names, such as: The Gary Graham Legal Defense Committee, The Gary Graham Justice Coalition, Gary Graham Defense Council, The Gary Graham Justice Campaign, The Endeavor Project, The Gary Graham Coalition, Among others. It seems that the actions of the Gary Graham Justice Coalition have so discredited the Pro-Graham Movement that they changed their name to the Gary Graham Legal Defense Committee, which carries on the tradition of false and misleading material.

Active participants in the Pro-Graham Movement are: Amnesty International, The National Coalition to Abolish the Death Penalty, The Texas Resource Center, NAACP Legal Defense Fund, The Texas Conference of Churches.

3) The continuing campaign of misinformation by Graham's supporters could not be completely addressed, herein. Should you desire reviews of: The Graham Coalitions' rebuttal to this letter; The Winter, 1994 Gary Graham Legal Defense Committee Report; Graham's "Don't Execute an Innocent Man"; Other fraud filled articles, publications, films or flyers; and/or if you have any additional questions, please call or write.

"Graham did get a fair trial precisely because he was convicted of a crime that one can believe without a reasonable doubt he committed. His trial was fair because, if he were retried and his dubious evidence admitted, he would still be convicted." (Texas Monthly, October 1993.)

Graham v. Texas Bd. of Pardons and Paroles, 913 S.W.2d 745 (Tex. App. 1996)

Following affirmance of his conviction for capital murder and sentence of death, 671 S.W.2d 529, denial of certiorari on state habeas corpus challenges, 508 U.S. 945, 113 S.Ct. 2431, 124 L.Ed.2d 651, affirmance of denial of federal habeas corpus petition, 506 U.S. 461, 113 S.Ct. 892, 122 L.Ed.2d 260, and denial of second federal habeas petition, 829 F.Supp. 204, defendant sought declaratory judgment and injunction requiring Board of Pardons and Paroles to hold hearing to consider his petition for executive clemency. The District Court, Travis County, 299th Judicial District, Peter M. Lowry, J., denied relief. Defendant appealed. The Court of Appeals, Kidd, J., held that: (1) although due process clause of State Constitution guaranteed right to hearing on claim of actual innocence, such right was satisfied by habeas procedure previously fashioned for defendant, and (2) defendant was not entitled to clemency hearing under Administrative Procedure Act (APA). Affirmed.

KIDD, Justice.

Appellant Gary Graham, a death-row prisoner, sued in district court for a declaratory judgment and injunction that appellees FN1 (collectively “the Board”) were required to hold a hearing to consider his petition for executive clemency. The district court denied all relief, and Graham now appeals. We will affirm the district-court judgment. FN1. Appellee Lynaugh is the Executive Director of the Texas Department of Criminal Justice. The remaining individual appellees are the members of the Texas Board of Pardons and Paroles.

BACKGROUND

In October 1981, appellant Graham was convicted of capital murder and sentenced to death. The Court of Criminal Appeals affirmed Graham's conviction and sentence. Graham v. State, 671 S.W.2d 529 (Tex.Crim.App.1984). Graham did not seek certiorari from the United States Supreme Court, and the convicting district court set Graham's execution for July 1987. Graham unsuccessfully brought a series of state habeas corpus proceedings on several grounds, including a claim of actual innocence, and the Court of Criminal Appeals denied relief on each occasion.FN2 Graham also brought an unsuccessful federal habeas corpus petition arguing that the statutory special issues used in his sentencing were unconstitutional because they failed to allow full consideration of his mitigating evidence.FN3 After Graham had been denied relief on these challenges, the convicting court reset Graham's execution for April 29, 1993. Graham then sought habeas corpus relief in federal court a second time, based in part on his claim of actual innocence supported by newly discovered evidence. The petition is still under consideration by the Fifth Circuit.FN4

FN2. See Ex parte Graham, 853 S.W.2d 565, 566 (Tex.Crim.App.1993), (detailing Graham's state habeas corpus challenges). FN3. Graham v. Collins, 506 U.S. 461, 466-467, 113 S.Ct. 892, 897, 122 L.Ed.2d 260, 269 (1993). FN4. Graham v. Collins, No. 93-2614 (5th Cir. docketed Aug. 15, 1993). The federal district court denied Graham's petition. Graham v. Collins, 829 F.Supp. 204, 209 (S.D.Tex.1993).

The United States Supreme Court recently discussed the due process considerations surrounding a death-row prisoner's claim of actual innocence based on newly-discovered evidence in Herrera v. Collins, 506 U.S. 390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). Herrera was a Texas death-row prisoner who had unsuccessfully challenged his murder conviction by applications for state and federal habeas corpus. Ten years after his conviction, Herrera brought a second round of state and federal habeas corpus petitions claiming that he was actually innocent of the murder, making his execution violative of the Fourteenth Amendment's Due Process Clause. Id. at 393-394, 113 S.Ct. at 856-857, 122 L.Ed.2d at 212; see U.S. Const. amend. XIV, § 1. The Court of Criminal Appeals denied relief. Ex parte Herrera, 819 S.W.2d 528 (Tex.Crim.App.1991), cert. denied sub nom. Herrera v. Texas, 502 U.S. 1085, 112 S.Ct. 1074, 117 L.Ed.2d 279 (1992). In the federal proceeding, the Supreme Court affirmed the Fifth Circuit's determination that Herrera was not entitled to relief because a claim of actual innocence does not entail a constitutional violation upon which federal habeas corpus relief may be grounded. Herrera v. Collins, 506 U.S. at 397-400, 113 S.Ct. at 859-860, 122 L.Ed.2d at 215-216.

The Supreme Court found that Texas did not violate Herrera's constitutional rights by imposing a 30-day time limit for filing a claim of actual innocence based upon newly discovered evidence. Id. at 410-411, 113 S.Ct. at 865-66, 122 L.Ed.2d at 223. The Court noted that due process “does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” Id. at 399, 113 S.Ct. at 860, 122 L.Ed.2d at 216 (quoting Patterson v. New York, 432 U.S. 197, 208, 97 S.Ct. 2319, 2326, 53 L.Ed.2d 281 (1977)). The Supreme Court noted that it would only invalidate state criminal-law procedures that offend deeply rooted and fundamental traditions of justice because the states have a particular expertise in criminal procedure grounded in centuries of common-law tradition. Id. at 407-408, 113 S.Ct. at 864, 122 L.Ed.2d at 221. In a survey of English and state common-law practice, the Court found a strong tradition limiting motions for new trial based on newly discovered evidence to a short time after conviction. Id. at 410-411, 113 S.Ct. at 865-866, 122 L.Ed.2d at 223. Based on that tradition and the fact that numerous states today require that such claims be made within 60 days of judgment, the Court found that Texas' procedure did not violate the Due Process Clause because it did not transgress fundamental and deeply rooted principles of fairness and justice. Id. at 410-411, 113 S.Ct. at 865-866, 122 L.Ed.2d at 223.

In support of its holding, the Court stressed that the existence of clemency in Texas was important to its due process analysis. Id. at 411-413, 113 S.Ct. at 866-867, 122 L.Ed.2d at 224. The Court noted that clemency is the usual vehicle for addressing claims of actual innocence: “the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.” Id. at 417, 113 S.Ct. at 869, 122 L.Ed.2d at 227. Clemency buttresses the process given in the criminal courts by acting as a “fail safe” in the criminal justice system. Id. at 415, 113 S.Ct. at 868, 122 L.Ed.2d at 226.

In the wake of Herrera, Graham filed a petition for executive clemency in 1993, asking for a hearing, a reprieve, a conditional pardon, or a commutation of sentence. Graham based his petition on the claim of actual innocence he had made in his second round of habeas corpus petitions. The Board denied his petition on all counts, voting 12 to 5 against holding a hearing, 10 to 7 against a reprieve, 12 to 1 against a commutation, and 13 to 0 against a conditional pardon. The Board did not hold a hearing on Graham's petition or convene as a body; each individual member received the petition and faxed a voting sheet to the Board's headquarters.

In July 1993, Graham filed the instant cause against the Board in Travis County district court. Graham sought a temporary and permanent injunction requiring the Board to give him a “due course of law” hearing FN5 on his clemency petition and sought a declaratory judgment that the Board was required to accord him such a hearing under the Texas Constitution and the Administrative Procedure Act. The district court granted a temporary injunction in favor of Graham, requiring the Board to hold a due course of law hearing on Graham's petition for clemency before the execution date. The Board then appealed the temporary injunction to this Court, and Graham sought a stay of execution pending resolution of the appeal. We issued a temporary injunction to protect our jurisdiction over the cause, which had the effect of staying Graham's execution. Texas Bd. of Pardons & Paroles v. Graham, No. 3-93-421-CV (Tex.App.-Austin 1993, no writ) (not designated for publication).

FN5. As defined by appellant and the trial court, a due course of law hearing includes the following elements: 1. A hearing before an impartial officer; 2. The right to confront evidence and witnesses through cross-examination; 3. The right to present evidence and witnesses, secured by Board subpoena if necessary; 4. The right to a written summary of the findings and decision of the hearing officer; 5. The right to representation by counsel; 6. The right to have the hearing transcribed by a court reporter; 7. The right to adequately prepare for the hearing; and 8. Upon Graham's request, the right to have the hearing be open to the public.

The Board and the Harris County District Attorney sought leave from the Court of Criminal Appeals to file a petition for writ of mandamus to set aside our temporary injunction. On November 9, 1993, the court granted leave to file mandamus. Texas ex rel. Holmes v. Court of Appeals for the Third Dist., 885 S.W.2d 386, 386 (Tex.Crim.App.1993, orig. proceeding [leave granted] ). In April 1994 the Court of Criminal Appeals held that this Court lacked jurisdiction to issue a temporary injunction that had the effect of staying Graham's execution. Texas ex rel. Holmes v. Court of Appeals for the Third Dist., 885 S.W.2d 389, 396 (Tex.Crim.App.1994, orig. proceeding) (hereinafter “ Holmes ”). The court therefore conditionally granted the Board's writ of mandamus. Id. at 392.

The Court of Criminal Appeals also addressed, at the Board's request, Graham's ability to bring his claim of actual innocence by means of a state habeas corpus proceeding. Id. Graham argued that he was pursuing a civil appeal on his clemency petition because controlling precedent prohibited the use of state habeas corpus for claims of innocence supported by newly discovered evidence. See Ex parte Binder, 660 S.W.2d 103, 106 (Tex.Crim.App.1983). The court revisited the rationale for Binder and held that state habeas corpus is the appropriate remedy for a prisoner in Graham's situation. Holmes, 885 S.W.2d at 397. The court held as a “sound and fundamental principle of jurisprudence” that “the execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution.” Id. (citing Herrera, 506 U.S. at 419, 113 S.Ct. at 870, 122 L.Ed.2d at 228 (O'Connor and Kennedy, JJ., concurring), 506 U.S. at 429, 113 S.Ct. at 875, 122 L.Ed.2d at 235 (White, J., concurring), and 506 U.S. at 430, 113 S.Ct. at 876, 122 L.Ed.2d at 235 (Blackmun, Stevens, and Souter, JJ., dissenting)). Accordingly, the court held that Graham could present his claim via state habeas because he alleged a cognizable deprivation of constitutional rights: that his actual innocence would make his pending execution unconstitutional. Id. at 397-98 (overruling Ex parte Binder, 660 S.W.2d 103 (Tex.Crim.App.1983)).

The court set out standards for implementation of the new state habeas procedure it created. Id. at 398-99. The court first set a threshold standard for determining whether a claim of actual innocence based on newly discovered evidence amounted to a constitutional question, holding that a habeas applicant must “demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict sufficient to undermine the confidence in the verdict and that it is probable that the verdict would be different.” Id. at 398. After meeting this threshold requirement, the applicant is entitled to a hearing on the newly discovered evidence. However, to obtain habeas relief, the applicant's burden at the hearing is to show that, “based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt.” Id. at 399; see also Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560 (1979). The court declined to assume original habeas jurisdiction and resolve the merits of Graham's claim. Id. at 399.

The Holmes decision reflects current doubts about the efficacy of executive clemency as a “fail-safe” for death-row prisoners. Though the United States Supreme Court in Herrera was certainly correct in its conclusion that clemency has traditionally served as the fail-safe, that tradition is subject to serious criticism. For example, the clemency power has been notoriously susceptible to abuse by governors. See Daniel T. Kobil, The Quality of Mercy Strained: Wresting the Pardoning Power from the King, 69 Tex.L.Rev. 569, 573, 607 (1991). Such abuse may take the form of corruption FN6 or political reaction to strong public opinion.FN7 Texas split its clemency power between the governor and the Board following charges that Texas governors abused the power early in this century. See Tex. Const. art. IV, § 11 interp. commentary (West 1984). Twenty-five other states have also lodged some measure of clemency power in an executive agency. Kobil, supra, at 605 n. 233, 605 n. 234. Though such measures have undoubtedly reduced clemency abuses, the clemency process is still greatly affected by public opinion and political pressures. Furthermore, the gathering and legal analysis of evidence, which is required to effectively dispose of a claim such as Graham's, lies in the special province of the judiciary. Trial courts specialize in conducting evidentiary hearings, and habeas corpus is a well-defined mechanism for challenging the validity of a criminal conviction. The executive branch, in which the clemency power resides, lacks the judiciary's expertise and experience in evidentiary reexamination of criminal convictions. Given these shortcomings of executive clemency, the Holmes decision marks a sound move to let the judicial branch of government act as the “fail-safe” for actual innocence claims by means of well-established habeas corpus procedures.

FN6. See Kobil, supra, at 607 (discussing the 1923 impeachment of Oklahoma governor J.C. Walton for selling pardons). FN7. See Kobil, supra, at 607-611 (noting numerous instances of clemency granted on the basis of public opinion or political pressure without regard to merits of the case).

On remand in Holmes, we complied with the Court of Criminal Appeals' opinion by vacating our injunction and dissolving the temporary injunction granted by the trial court. Texas Bd. of Pardons & Paroles v. Graham, 878 S.W.2d 684, 685-86 (Tex.App.-Austin 1994, no writ). However, we declined as improper a review of the merits of Graham's case because the Board's appeal had been taken only as an interlocutory review of the trial court's temporary injunction. Id. Accordingly, the district court proceeded to trial on the merits of Graham's suit against the Board. In October 1994, the district court rendered judgment that Graham was not entitled to a permanent injunction or declaratory relief because the state habeas procedure fashioned for Graham by the Court of Criminal Appeals in Holmes accorded him all the process he was due. Graham now appeals the district-court judgment denying him declaratory and injunctive relief.

DISCUSSION AND HOLDINGS

Graham grounds his claim on the “due course of law” provision of the Texas Constitution.FN8 Tex. Const. art. I, § 19.FN9 We begin our analysis by noting the well-settled proposition that our state constitution may provide greater protection for individual rights than the United States Constitution. City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 293, 102 S.Ct. 1070, 1076, 71 L.Ed.2d 152 (1982); PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 2040, 64 L.Ed.2d 741 (1980). The federal constitution serves as a floor of protection for individual rights that state courts must respect. Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 369-72, 110 S.Ct. 2430, 2439-40, 110 L.Ed.2d 332 (1990); Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824, 826, 17 L.Ed.2d 705 (1967); LeCroy v. Hanlon, 713 S.W.2d 335, 338 (Tex.1986). Both high courts of this state have insisted that the Texas judiciary interpret our constitution in a manner that ensures its independent vitality. See, e.g., Davenport v. Garcia, 834 S.W.2d 4, 11-19 (Tex.1992); LeCroy, 713 S.W.2d at 338; Bauder v. State, No. 1058-94, slip op. at 2, ---S.W.2d ----, ---- [1995 WL 713030] (Tex.Crim.App.1995); Heitman v. State, 815 S.W.2d 681, 685-89 (Tex.Crim.App.1991). “By enforcing our constitution, we provide Texans with their full individual rights and strengthen federalism.” LeCroy, 713 S.W.2d at 339 (quoted in Davenport, 834 S.W.2d at 13). The very first section of the Texas Constitution urges a vigorous “preservation of the right of local self-government....” Tex. Const. art I, § 1. Our state policy is in full accord with that of the United States Supreme Court, which has long stressed the important role of independent state constitutional jurisprudence in our federal system. See, e.g., Massachusetts v. Upton, 466 U.S. 727, 735, 104 S.Ct. 2085, 2089, 80 L.Ed.2d 721 (1984) (Stevens, J., concurring); Minnesota v. National Tea Co., 309 U.S. 551, 557, 60 S.Ct. 676, 679, 84 L.Ed. 920 (1940); Murdock v. City of Memphis, 87 U.S. (20 Wall.) 590, 635-36, 22 L.Ed. 429 (1875).

FN8. Graham also contends that the “open courts” provision of the constitution entitles him to a clemency hearing. See Tex. Const. art. I, § 13. This argument has no merit. The open courts provision applies only to courts. Id.; see also LeCroy v. Hanlon, 713 S.W.2d 335, 341 (Tex.1986). The Board is not a court, it is a state agency. See Tex. Const. art. IV, § 11; Tex.Code Crim.Proc.Ann. art. 42.18, § 1 (West Supp.1996). Furthermore, the right to a remedy in open court only applies to actions cognizable at common law. Thomas v. Oldham, 895 S.W.2d 352, 357 (Tex.1995). Clemency is an act of grace and not a legal right cognizable at common law. Ex parte Anderson, 149 Tex.Crim. 139, 192 S.W.2d 280, 282 (1946).

FN9. Article I, section 19 provides: “No citizen of this State shall be deprived of life, liberty, property, privileges, or immunities, or in any manner disenfranchised, except by the due course of the law of the land.”

Indeed, the protections afforded by the Texas Constitution may exceed those of the federal constitution even though the phrasing of a provision is the same or similar in both charters. Heitman, 815 S.W.2d at 685. Though the wording of the due course of law guarantee in the Texas Constitution is slightly different from the Due Process Clause of the Fourteenth Amendment, the Texas Supreme Court has held that the two clauses are “nearly identical” and “without meaningful distinction.” University of Tex. Medical Sch. v. Than, 901 S.W.2d 926, 929 (Tex.1995). As a result, the Texas Supreme Court has often followed federal due process jurisprudence in applying the Texas due course of law provision. Id. However, the similar meaning of the two clauses does not mean that they provide the same level of protection: federal due process cases, though persuasive authority, are not binding on the Texas courts. Id.

With this independent vitality of our state constitution in mind, we hold that the due course of law provision in the Texas Constitution guarantees Graham the right to a hearing on his claim of actual innocence. Our reasoning is much the same as that employed by the Court of Criminal Appeals in Holmes: the execution of an innocent prisoner violates the constitution, and therefore a claim of actual innocence by a death-row prisoner based on newly discovered evidence merits a hearing. Holmes, 885 S.W.2d at 397-98. However, we determine that Graham's right to a due course of law hearing on his claim of actual innocence has been satisfied by the habeas corpus procedure fashioned for him by the Court of Criminal Appeals in Holmes. Upon a showing of new evidence that undermines confidence in the jury verdict, Graham will be entitled to an evidentiary hearing in accordance with statutory post-conviction habeas corpus procedures. Holmes, 885 S.W.2d at 398-99. A post-conviction habeas hearing affords the essential requisites of due process: an evidentiary hearing before a district-court judge, the right to counsel, time to prepare for the hearing, transcription of the hearing by a court reporter, and written findings of fact and conclusions of law by the court. Tex.Code Crim.Proc.Ann. art. 11.071, § 9 (West Supp.1996). In addition, the Texas Rules of Criminal Evidence apply to the hearing. Id. at § 10. These habeas corpus procedures suffice to protect Graham's due course of law rights under the Texas Constitution.

Graham nevertheless argues that he is entitled to an additional hearing before the Board on his clemency petition, even if he has the option to seek a hearing by means of an application for habeas corpus. Graham urges that we must consider clemency separately from habeas corpus because the process afforded in the criminal courts does not affect the process required for consideration of a clemency petition. We disagree. The cornerstone of Graham's constitutional right to a due course of law hearing is his claim of actual innocence. Now that the Court of Criminal Appeals in Holmes has created a judicial vehicle for testing such a claim of actual innocence, we hold that the Texas Constitution does not afford Graham an additional, duplicative hearing within the executive-clemency process. By our decision here today we do not mean to imply that Graham is not entitled to meaningful review of his clemency petition by the Board,FN10 but only that the Texas Constitution does not require the Board to grant Graham a due course of law hearing where such a hearing is already provided by way of state habeas corpus procedure.

FN10. Graham argues that the Board's failure to hold a hearing violates his Texas constitutional right of “remonstrance” which provides, in relevant part, as follows: “The citizens shall have the right, in a peaceable manner, to ... apply to those invested with the powers of government for redress of grievances or other purposes, by petition, address, or remonstrance.” Tex. Const. art. I, § 27.

Graham's right of remonstrance guarantees meaningful review of his petition by the Board by requiring that the Board “consider” it. Professional Ass'n of College Educators v. El Paso County Community Dist., 678 S.W.2d 94, 96 (Tex.App.-El Paso 1984, writ ref'd n.r.e.). A government body considers a remonstrance if it stops, looks, and listens to a grievance. Id.

However, the right to have the Board consider his petition does not entitle Graham to any specific due process: “[there is] no requirement that those trusted with the powers of government must negotiate or even respond to complaints filed by those being governed.” Id.; accord Corpus Christi Ind. Sch. Dist. v. Padilla, 709 S.W.2d 700, 704-05 (Tex.App.-Corpus Christi 1986, no writ). We hold that the right of remonstrance does not entitle Graham to a hearing before the Board on his petition for clemency. [13] Finally, Graham argues that he is entitled to a clemency hearing under the Administrative Procedure Act,FN11 with all the process afforded by the Act. See APA §§ 2001.051-.147. The APA affords a party the right to a hearing before an agency “[i]n a contested case....” APA § 2001.051. The APA defines a contested case as “a proceeding ... in which the legal rights, duties, or privileges of a party are to be determined by a state agency....” APA § 2001.003(1) (emphasis added). In a clemency petition, the Board does not determine the prisoner's rights or privileges. Instead, the Board determines whether a prisoner is entitled to clemency as a matter of grace (not right or privilege) notwithstanding the judicial determination that the prisoner has no right to liberty. See Ex parte Anderson, 149 Tex.Crim. 139, 192 S.W.2d 280, 282 (1946). Because the Board does not determine a prisoner's rights or privileges, a clemency petition does not come within the definition of a contested case. Therefore, we hold that Graham is not entitled to a hearing under the APA.

FN11. Tex.Gov't Code Ann. § 2001.001 et seq. (West 1996) (the “APA”).

CONCLUSION

We hold that Graham is not entitled to a hearing on his clemency petition under the Texas Constitution or the Administrative Procedure Act. Accordingly, we overrule Graham's sole point of error and affirm the judgment of the district court.

Graham v. Collins, 950 F.2d 1009 (5th Cir. 1992) (Habeas)

State prisoner under death sentence sought habeas corpus. The United States District Court for the Southern District of Texas, David Hittner, J., denied relief. Petition for probable cause was denied by the Court of Appeals, 854 F.2d 715. The United States Supreme Court vacated, 492 U.S. 915, 109 S.Ct. 3237, 106 L.Ed.2d 585. On remand, the Court of Appeals granted habeas corpus, 896 F.2d 893 and rehearing en banc was ordered, 903 F.2d 1014. The Court of Appeals, Garwood, Circuit Judge, held that Texas death penalty statute adequately allowed for consideration of mitigating factors of defendant's youth and of defendant's respect for his family members and support for his children as they were relevant to the special issue of whether defendant would represent a continuing threat to society.

GARWOOD, Circuit Judge:

A panel of this Court previously affirmed the district court's denial of Gary Graham's habeas corpus petition challenging his Texas capital murder conviction and death sentence. Graham v. Lynaugh, 854 F.2d 715 (5th Cir.1988). Thereafter, the United States Supreme Court, in Graham v. Lynaugh, 492 U.S. 915, 109 S.Ct. 3237, 106 L.Ed.2d 585 (1989), issued a per curiam order that granted Graham's petition for writ of certiorari, vacated the judgment of this Court, and remanded the case to this Court “for further consideration in light of Penry v. Lynaugh,” 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Pursuant to that remand order, a panel of this Court reconsidered the case, and, by a divided vote, vacated Graham's death sentence, the panel majority determining that the Texas capital sentencing system was unconstitutionally applied in Graham's case because the jury at the sentencing phase of his trial, having been given no special instructions, was not able to adequately consider and give effect to Graham's youth as a mitigating factor. Graham v. Collins, 896 F.2d 893 (5th Cir.1990). Having ordered rehearing en banc, id. 903 F.2d 1014 (5th Cir.1990), we have again reconsidered the case in light of Penry and, disagreeing with the panel majority's determination in this respect, we now reinstate our former affirmance of the district court's denial of habeas relief.

Procedural History

Over his plea of not guilty, Graham was convicted by a Texas court jury in October 1981 of the offense of capital murder, the May 1981 intentional killing of Bobby Lambert by shooting him with a pistol while in the course of robbing or attempting to rob him. Texas Penal Code, art. 19.03(a)(2). At the sentencing phase of the trial, the jury answered in the affirmative each of the three special issues provided for in Texas Code of Criminal Procedure, art. 37.071(b), and Graham was accordingly sentenced to death.FN1 On direct appeal, Graham's conviction and sentence were affirmed by the Texas Court of Criminal Appeals in an unpublished opinion. Graham subsequently sought habeas corpus relief in the Texas courts. After holding an evidentiary hearing on Graham's allegations, the convicting trial court recommended denial of relief, transmitting to the Court of Criminal Appeals findings and conclusions rejecting Graham's contentions. The Court of Criminal Appeals thereafter denied relief pursuant to an unpublished opinion.

FN1. The 1988 and 1990 panel opinions in this case erroneously indicated that only the first two issues specified in art. 37.071(b) were submitted. See, id., 896 F.2d at 898 n. 4 and 854 F.2d at 718.

Until 1991, sections (a) through (e) of art. 37.071 provided, as they did also in 1981, as follows: “(a) Upon a finding that the defendant is guilty of a capital offense, the court shall conduct a separate sentencing proceeding to determine whether the defendant shall be sentenced to death or life imprisonment. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Texas. The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death. “(b) On conclusion of the presentation of the evidence, the court shall submit the following three issues to the jury: “(1) whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that the death of the deceased or another would result; “(2) whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society; and “(3) if raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased. “(c) The state must prove each issue submitted beyond a reasonable doubt, and the jury shall return a special verdict of ‘yes' or ‘no’ on each issue submitted. “(d) The court shall charge the jury that: “(1) it may not answer any issue ‘yes' unless it agrees unanimously; and “(2) it may not answer any issue ‘no’ unless 10 or more jurors agree. “(e) If the jury returns an affirmative finding on each issue submitted under this article, the court shall sentence the defendant to death. If the jury returns a negative finding on or is unable to answer any issue submitted under this article, the court shall sentence the defendant to confinement in the Texas Department of Corrections for life.”

The above provisions are the same as when the statute was first enacted in 1973 (except that by 1981 amendment the word “three” was inserted in the opening clause of section (b)).

In May 1991 the Texas Legislature passed two bills amending art. 37.071. S.B. 880, ch. 838, 72nd Leg., R.S.1991, extensively amends the Texas capital sentencing procedure, including art. 37.071, and specifies an effective date of September 1, 1991, but is expressly made applicable “only” to offenses “committed on or after September 1, 1991.” S.B. 880, § 5. The changes made by S.B. 880 § 1 to art. 37.071 include the entire elimination of the former first and third special issues (the former second special issue is retained verbatim in all cases), provision for a new special issue where the jury charge allowed the defendant to be found guilty under the law of parties, and provision in all cases for the following new special issue: “Whether, taking into consideration all of the evidence, including the circumstances of the offense, the defendant's character and background and the personal moral culpability of the defendant, there is a sufficient mitigating circumstance or circumstances to warrant that a sentence of life imprisonment rather than a death sentence be imposed.”

If all issues submitted are answered adversely to the defendant, the sentence is death; otherwise, the sentence is life imprisonment. S.B. 880 was finally passed May 17, 1991, and was filed without the Governor's signature on June 16, 1991. The other bill, H.B. 9, ch. 652, 72nd Leg., R.S.1991, was finally passed May 27, 1991, and was signed by the Governor June 16, 1991. Section 9 of H.B. 9 provides that art. 37.071 “is amended to read as follows” setting it out in full in the same form as it existed previously (or before May 1991) with only minor, technical changes (a new section 1 is added providing that the judge shall sentence the defendant to life imprisonment if the state does not seek the death penalty; the remainder of art. 37.071 is put into its section 2, stated to apply only if the state seeks the death penalty; the only other changes are from “upon” to “on” at the beginning of section 2(a) and using the current designation for the former Texas Department of Corrections in section 2(e)). H.B. 9 specifies September 1, 1991 as its effective date (section 16), and its section 15(a) states: “(a) The changes in law made by Section 1-9 and 11, 12, and 13 of this Act apply to the trial of a capital offense that commences on or after the effective date of this Act, whether the trial is for an offense committed before, on, or after the effective date.”

We merely note these 1991 enactments, and express no opinion with respect to whether, for offenses committed on or after September 1, 1991, the controlling form of art. 37.071 is as provided in S.B. 880 § 1 or H.B. 9, § 9. Graham then brought the present proceedings under 28 U.S.C. § 2254 in the district court. That court denied relief without an evidentiary hearing, and denied stay of execution and a certificate of probable cause. A panel of this Court granted an interim stay, but ultimately denied Graham's application for certificate of probable cause. Graham, 854 F.2d 715. Judge Jolly, in his opinion for the panel consisting of himself and Judges Reavley and King, considered and rejected seriatim each of Graham's several claims. In part IIB of the opinion, the panel dealt with Graham's contention that the Texas statutory special issues, which mandate the death penalty if all are answered affirmatively, see note 1, supra, do not permit the jury to adequately weigh mitigating circumstances when formulating their answers. Id. at 718-20. The factors Graham relied on as mitigating were primarily his youth-he was seventeen at the time of the offense-and certain matters reflected by evidence concerning his childhood.FN2 Id. The panel relied particularly upon Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988), and concluded by holding that “the jury's verdict ... is consistent with the constitutional requirements outlined in Franklin and other precedents.” Id. at 719.FN3

FN2. The panel also, among other things, rejected Graham's contention that the Eighth Amendment prohibited execution for an offense committed when the defendant was less than eighteen years old. Id. 854 F.2d at 717-718.

FN3. The 1988 panel did, however, observe ( id. at 720, n. 8): “We do not suggest that this area of the law is devoid of wrinkles. The Supreme Court has recently granted certiorari in the case of Penry v. Lynaugh, 832 F.2d 915 (5th Cir.1987), cert. granted, [487] U.S. [1233], 108 S.Ct. 2896, 101 L.Ed.2d 930 (1988). In Penry, our court closely scrutinized evidence of Penry's mental retardation and concluded that there was some doubt whether the Texas statute permitted this evidence to be considered in answering the sentencing questions. 832 F.2d at 925.”

Following the Supreme Court's remand for reconsideration in light of Penry, the panel again grappled with this difficult issue.FN4 Judge Reavley, for the panel majority, held that:

FN4. With respect to the other issues in the case, the 1990 panel opinion observed: “In remanding this case, the Supreme Court neither expressed nor suggested disagreement with any part of our prior opinion other than that relating to Graham's argument that the Texas statutory sentencing procedure does not allow the jury to consider fully the relevant mitigating circumstances, which is discussed in section IIB of that opinion. Accordingly, with the exception of section IIB, we reinstate our prior opinion.” Id. 896 F.2d at 894.

We agree, and reinstate this portion of the 1990 panel opinion. For the same reason, we similarly deny relief with respect to Graham's contentions addressed in footnotes 5, 7, and 9 of the 1988 panel opinion. Id. 854 F.2d at 718 n. 5, 719 nn. 7 & 9. “The mitigating evidence that Graham introduced during sentencing included his youth and his difficult childhood. Graham argues this evidence is relevant beyond the scope of the special questions and that, because no additional instructions were given, the Texas statute was unconstitutionally applied in his case. Because of Graham's age, we agree.” Id. at 897. FN5

FN5. The 1990 panel majority, though summarizing the evidence presented by Graham respecting his childhood, id., did not address whether that evidence, of itself, would have required some further instruction or jury submission beyond that given. As to the Penry issue, the panel only addressed “Graham's age.”

Judge Jolly, in his 1990 dissent, concluded that the second special issue adequately encompassed any mitigating aspects of youth that the jury must constitutionally be free to consider, as Graham's youthfulness was such a factor only to the extent his offense was a product of it, and youth was necessarily a transitory condition that the jury could fully take into account “by giving a negative answer to the future dangerousness inquiry of the second special issue.” Id. at 899.

Context Facts

At the guilt-innocence phase of the trial, Graham's defense was essentially only one of insufficient identification. The state presented several witnesses to the shooting, which occurred at about 9:30 p.m. on Wednesday, May 13, 1981, in the parking lot of a Safeway Food Store in Houston, Texas. The perpetrator, a man wearing black pants and a white jacket, bumped into Lambert, who was carrying a sack of groceries out of the store, and attempted to grab Lambert's wallet. Some of the testimony indicated that there was a brief struggle between the two. Lambert pushed at the perpetrator, and each stepped back; the perpetrator produced a pistol, leveled it at Lambert's chest, and shot him in the heart from a distance of about two to three feet. The perpetrator then fled without being apprehended. Lambert staggered back toward the store, fell, and died on the spot. The perpetrator had been observed in the store when Lambert was there, but had left a few minutes before Lambert did. So far as the evidence showed, the perpetrator acted alone. Only one of the witnesses, Mrs. Skillern, was able to identify Graham as the perpetrator.FN6 She ultimately so identified Graham in a May 26 photographic display and in a May 27 police station “line-up,” as well as in her open court trial testimony. Defense counsel attacked Mrs. Skillern's identification, both by vigorous cross-examination and by emphasizing in argument the failure of the other witnesses, at least one of whom was closer to the events in question, to make an identification.FN7 However, no defense evidence was presented. In closing argument defense counsel did not suggest that the evidence failed to show that the offense charged had been committed, but rather that it failed to show that Graham was the one who committed it.

FN6. The other witnesses did not testify to anything suggesting that Graham was not (or did not resemble) the perpetrator, but merely stated that they did not get a good enough look at (or sufficiently recall) the perpetrator's face to make an identification. FN7. The defense also sought to suppress Mrs. Skillern's testimony on the basis that the photographic display and line-up were unduly suggestive. After an extensive hearing out of the presence of the jury, this motion was overruled.

At the sentencing hearing, no evidence was introduced concerning the offense of conviction. The state introduced extensive evidence showing that on five different days during the week following his murder of Lambert, Graham committed robberies at a total of nine separate locations and in each instance Graham leveled either a pistol or a sawed-off shotgun on the victim. The first of these was on May 14, and the last on May 20. These offenses involved some thirteen different victims, including women aged fifty-seven and eighteen and men aged sixty-four, fifty-seven, eighteen, and other ages. With respect to a few of these occasions, the evidence indicated Graham was using marihuana. In addition to money and personal effects, five vehicles were stolen. Two of the victims were pistol whipped, one of them being shot in the neck. These were the only serious physical injuries. Graham glancingly struck another victim, the sixty-four-year-old man, with the vehicle he was stealing, apparently trying to run over him. The fifty-seven-year-old woman was kidnapped and raped, after which Graham fell asleep in her apartment, she contacted the police and he was arrested there, thus bringing his crime spree to an end. On five of these occasions Graham apparently acted alone; on four others an accomplice (not shown to be of a different age from Graham) was present or nearby, but Graham wielded the weapon. At least six of the separate incidents, including that with the sixty-four year old and the two with the fifty-seven year olds, involved Graham practicing initial successful deception on the victim. The state also introduced testimony of a Texas Youth Council employee that she had been familiar since an unspecified time in 1979 with Graham's reputation in the community for being a peaceful and law-abiding citizen, and that it was bad; she gave no elaboration or specifics whatever and did not state how she acquired this information, except that it was not based on her own personal observation. This was the entirety of the state's evidence at the punishment stage.

The only evidence presented by the defense at the sentencing stage consisted of the testimony of Graham's stepfather, Joe Samby, and his grandmother, Erma Chron. Samby testified that he had been married to Graham's mother for about five years, and had known Graham for about five years. He said Graham was fifteen when he (Samby) first met him. Graham lived with his father, and worked with him, but Samby did not know what kind of work Graham did. Graham would come by Samby's house once or twice a week to visit his mother. Graham had “real, real respect for his mother. He cared about his mother. He was real close to his mama.” His mother was present in the courtroom, but Samby explained “she can't do nothing because she is on medication and nervous. She is the nervous type.” Samby stated that he had never known Graham to be a violent person, that Graham had been “real nice, respectable” with him and, when requested to help out around Samby's house, such as by cutting the grass or to “clean up and help his mother,” Graham “would do it and be glad to do it for me.” Graham was one of four brothers, and had no sisters. Samby had three children of his own living in his house. Graham had two children, one four and the other two. Graham would “buy ... clothes for his children and try to give them food.” FN8. There was no evidence as to where Graham's children lived or whether Graham was or had been married.

Chron testified that her grandson Graham began staying with her intermittently, beginning “when he was around three,” because his mother was frequently hospitalized for a “nervous condition” that Chron said was “mental illness.” He would stay with his mother when she was not hospitalized. However, at about age eleven or twelve Graham went to live with his father and “he has been with his father ever since.” Graham's mother had been hospitalized “at least twenty times.” Chron further stated that while Graham was living with her he attended school, “he would go to church all the time and everything. He loved the Lord,” and he didn't give Chron “any problems or trouble.” Chron also testified that Graham never had any weapons, and “he has never been violent.”

Apart from Samby's testimony that he had known Graham about five years and first knew him when Graham was fifteen, which would indicate that Graham was nineteen or twenty when the offense was committed, there was no evidence before the jury as to Graham's age.FN9 Nevertheless, each of Graham's two attorneys, in their closing arguments at the punishment stage, argued to the jury, without prosecution objection, that Graham was seventeen when his offense was committed.

FN9. However, it is undisputed that Graham was in fact born on September 5, 1963, this being reflected in a report of a pretrial psychiatric examination filed in the papers of the case in August 1981, the examination having been ordered by the court on motion of defense counsel. Graham was thus seventeen years and eight months of age when the offense was committed. Records of the late May 1981 line-ups at which Graham was identified, which were not before the jury but were put in evidence only in hearings out of the presence of the jury on suppression motions, also reflect that Graham was seventeen at that time.

The first defense counsel's argument included the following: “We have to make a decision on this young man, Gary Graham. What do we know about Gary Graham? One thing we know about Gary Graham is from May 13 through May 20th he reaped havoc and hell on a lot of people. May 13, 14, 15, 16, 18 and 20th five days. Pure hell. What do we know about Gary Graham? We know that at age 3 he went to live with his Grandmother because his Mother was placed in a mental institution or placed herself in a mental institution. We know he lived on and off with his Grandmother and when she would come out of the hospital he would live with her and when she would go back he would go live with his Grandmother. Draw your own conclusions to that, what type of life he lived. You heard from his Step-father. He stated that Gary Graham would come to his house and visit his Mother every now and then. You heard from his Grandmother, that Gary Graham has 2 children of his own.... Gary Graham is a young man. No doubt about it.... A young man, hasn't even reached 20 years old. Not even 20 years old. He goes on a rage for 7 days, 7 days out of his life. He is not going to ever forget.... I would hope that it was something on the witness stand that you either heard that show some redeeming value. Something in Gary Graham's life to say that possibly he can be rehabilitated. Possibly. And I would urge each and every one of you all that there is a glimmer or a possibility that his life can change, given that opportunity.... Gary Graham, 17 years old, went on a rage for 7 days. What did he do? He harassed people. He stuck guns in their face. He shot an individual and he killed another individual. What was it in response to? Why did he become so aggressive? What makes an individual go on a rage for 7 days? Drugs? Alcohol? Maybe. Life? Maybe....”

Graham's other counsel argued in a similar vein, stating: “... there are only two answers, and that is a choice. Life or death. Life in the penitentiary at the age of 18 years old. What is the meaning of punishment? Why do we punish.... We are all leaving. Everyone here gets to leave but him. He either goes to live for life in the penitentiary or be prepared for death by injection, and when you look at a young man of his age, what do you think about? What do you think about the years when you think about death. You think about finishing the years of your life back when you are at a point in your life when some people have no direction. Some people have no knowledge of where their [sic] going or what they want to do. Some of us are more fortunate. You also have to look at changes in society. Changes in ages. See, because what you are called upon to do is predict whether some time in the future Gary Graham could become a person fit to return to society. At least he is alive. See, when you are 17 or 20, you are young, hot-to-trot. You are going to set the world on fire one way or the other, right or wrong. When people come in their middle 20's and middle 30's, a change a little bit from your more radical stands to a more somewhat upright posture because you have had not only time to think, but to see what is in the world. Most of the crime is committed by young people. By the time you get to 25 or 35, it's different. 35 and above.... because there is something about human nature that not only changes you, but slows you down as you live. If you live. If you live....”

The prosecution's argument did not refer to Graham's age in any way except to once acknowledge “his youth.” The prosecution stressed Graham's killing of Lambert and his other many serious offenses in the following week, stating in part:

“Gary Graham does have direction, and he has shown you that direction. He has shown you that direction in every way that you can possibly look at.... [T]here are certain individuals in our society that we have got to look at. And we have got to realize that are not fit to live with us. The evidence beyond a reasonable doubt shows that Gary Graham is not fit to live in this society, that he will constitute a continuing threat to society. Compassion? They ask for compassion. We ask you for his life.... Rights of the individuals of this society. The life of Bobby Grant Lambert. They say look at his youth. When does a human life taken the way he took that life of Bobby Grant Lambert cease to have meaning? It ceases to have meaning when the terror and the degradation of a man such as him holds that life in his hand.... Compassion? Care? Have you just looked at him? ... Death is the only protection that you, as the jury, and society can protect from people and especially Gary Graham. The seeds of our past are the harvest of the future and what seeds has Gary Graham planted? And where has he sowed those seeds? In the fertile earth? No. He buried Bobby Grant Lambert in the earth. His seeds are death. Pain. Suffering. Humiliation. Degradation. What do those things bring? But one thing tell you what Gary Graham is. You have seen his actions. You have heard from the mouths of these people. Deliberate conduct....”

Neither side made any objections to the other's argument. The court instructed the jury in accordance with article 37.071, including informing them that the sentence would be either “death or confinement in the penitentiary for life,” and that in answering the three special issues they could take into consideration all the evidence submitted both at the guilt-innocence stage and at the punishment stage.FN10 The three special issues called for by art. 37.071(b) were submitted, and each was answered in the affirmative. Neither side objected to the charge or the issues submitted or requested any other or further instructions or issues.FN11

FN10. The jury was also instructed that the state still had the burden of proof, which never shifted to the defendant, and that “each special issue submitted must be proved by the state beyond a reasonable doubt” and none could be answered “yes” unless all jurors were convinced beyond a reasonable doubt that it should be so answered.

FN11. Prior to trial, the court had denied defense counsel's motion to “hold article 37.071 ... unconstitutional and void.” This motion was grounded on the contention that the special issues called for were too “vague and indefinite,” and thus “allow total discretion to a jury to make unfavorable findings against a Defendant, and such findings may be based on any prejudice the jury may have, individually or as a whole.” The supporting memorandum explained that “Article 37.071 leaves with both the judge and the jury a vas[t] residue of discretion which is precisely what the Supreme Court in Furman [ v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ] condemned” and argued that “[c]onsequently, the inquiry [of the article 37.071 issues] is fraught with standardless discretion in the hands of the jury.”

There was no suggestion in the motion or memorandum that defendant complained of insufficient discretion (or an insufficient vehicle to give effect to it) to determine that the defendant would not receive the death penalty, or that the jury was not given an adequate basis to consider or give effect to its conclusions concerning defendant's age or background. The complaint was indeed the reverse.

Discussion

In Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976), the Supreme Court sustained the Texas capital sentencing procedure of art. 37.071. This case requires us to examine what, if anything, remains of Jurek and art. 37.071 after Penry. To provide context for this examination, an overview of some of the other leading decisions of the Supreme Court in this area is appropriate.

Context cases

In Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), the Court effectively struck down all capital punishment statutes then in place. The crucial votes in Furman were those of Justices Stewart and White, who, as Justice Scalia observed in Walton v. Arizona, 497 U.S. 639, 110 S.Ct. 3047, 3061, 111 L.Ed.2d 511 (1990) (concurring opinion), “focused on the infrequency and seeming randomness” with which the death sentence was imposed under the then existing discretionary system. FN12 Following Furman some thirty-five states adopted new capital sentencing statutes that reduced or narrowed the sentencer's discretion in determining whether or not to impose the death penalty. The Supreme Court ruled on five of these statutes on July 2, 1976. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek; Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976). Gregg sustained the Georgia statute, which directed the sentencer to consider listed and unlisted aggravating and mitigating circumstances, but allowed a death sentence only if at least one listed aggravating circumstance were found. The Court observed that “ Furman mandates” that the capital sentencer's “discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action,” id. 96 S.Ct. at 2932, and warned against sentencing standards “so vague that they would fail adequately to channel the sentencing decision patterns of juries with the result that a pattern of arbitrary and capricious sentencing like that found unconstitutional in Furman could occur.” Id. at 2935 n. 46. Gregg goes on to note, however, that “the isolated decision of a jury to afford mercy does not render unconstitutional death sentences imposed on defendants who were sentenced under a system that does not create a substantial risk of arbitrariness or caprice.” Id. at 2939. Proffitt applied the Gregg rationale to uphold the somewhat similar Florida scheme. Woodson, however, struck down the North Carolina statute under which the death penalty was made mandatory for first degree murder, in that case murder during the course of robbery. The Court noted that among the “constitutional shortcoming[s]” of this statute was “its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant,” and that in capital cases the Eighth Amendment “requires consideration of the character and record of the individual offender and the circumstances of the particular offense.” Id., 96 S.Ct. at 2991. Roberts applied the same rationale to invalidate the Louisiana statute under which the death penalty was likewise mandatory for first degree murder.

FN12. Justice Stewart, for example, observed that of those convicted of capital crimes “many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed” and that the Constitution could not tolerate systems that “permit this unique penalty to be so wantonly and so freakishly imposed.” Furman, 92 S.Ct. at 2762-63. Justice White observed that under the statutes at issue “there is no meaningful basis for distinguishing the few cases in which it [the death penalty] is imposed from the many cases in which it is not.” Id. at 2764.

We turn now to Jurek, decided the same day. There seven justices voted to uphold the Texas scheme as embodied in art. 37.071, but no opinion attracted more than three votes. The judgment of the Court was announced in Justice Stewart's opinion, which Justices Powell and Stevens joined, and this opinion has generally been understood as expressing the rationale of the Court's action.FN13 Justice Stewart's opinion summarizes the facts adduced at trial, including evidence that Jurek “22 years old at the time, had been drinking beer in the afternoon” of the offense, and that he “had always been steadily employed since he had left school and that he contributed to his family's support.” Id., 96 S.Ct. at 2954. In describing the Texas sentencing procedure, the opinion states that at the punishment phase the jury is “presented with two (sometimes three) questions, the answers to which determine whether a death sentence will be imposed.” Id. (footnote omitted). It observes that only the first two issues specified in art. 37.071 were submitted, that both were answered yes, “and the judge, therefore, in accordance with the statute, sentenced the petitioner to death.” Id. The opinion then quotes verbatim the full text of the three issues specified in art. 37.071, and continues by stating “[i]f the jury finds that the State has proved beyond a reasonable doubt that the answer to each of the three questions is yes, then the death sentence is imposed.” Id. at 2955.

FN13. Justice White, in an opinion in which then Chief Justice Burger and then Justice Rehnquist joined, likewise found the Texas statute constitutional. Id., 96 S.Ct. at 2959-60. Justice White's opinion quotes the statutory special issues in full and observes that “[t]he statute does not extend to juries discretionary power to dispense mercy, and it should not be assumed that juries will disobey or nullify their instructions.” Id., at 2959. Justice White, joined by then Chief Justice Burger, Justice Blackmun, and then Justice Rehnquist, dissented in Roberts, id., 96 S.Ct. at 3008-3020, and also in Woodson. Justice Blackmun wrote a separate dissent in Woodson and did not join Justice White's dissent there. Id., 96 S.Ct. at 2992-93. In Jurek Justice Blackmun separately concurred in the judgment, with only a brief reference to his Furman dissent. Jurek, 96 S.Ct. at 2960. Justices Brennan and Marshall dissented in Jurek, as well as in Gregg and Proffitt, on the grounds that the death penalty was unconstitutional per se. 96 S.Ct. at 2971-2977. They concurred in the result in Woodson, id., 96 S.Ct. at 2992, and Roberts, id., 96 S.Ct. at 3007, on the same basis. In evaluating the constitutionality of the Texas scheme, Justice Stewart notes that under Woodson and Roberts “[a] jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” Id. at 2956. The opinion then observes that “[t]he Texas statute does not explicitly speak of mitigating circumstances; it directs only that the jury answer three questions,” and “[t]hus, the constitutionality of the Texas procedures turns on whether the enumerated questions allow consideration of particularized mitigating factors.” Id. The Court proceeds to answer this inquiry in the affirmative, but only with regard to the second-the future dangerousness-special issue, because “[t]he Texas Court of Criminal Appeals has not yet construed the first and third questions ... thus it is as yet undetermined whether or not the jury's consideration of those questions would properly include consideration of mitigating circumstances. In at least some situations the questions could, however, comprehend such an inquiry.” Id. at 2956 n. 7. In turning to the second special issue, the opinion notes that “[t]he Texas Court of Criminal Appeals has yet to define precisely the meaning of such terms as ‘criminal acts of violence’ or ‘continuing threat to society.’ ” Id. at 2956. It goes on to state (96 S.Ct. at 2956-57):

“In the present case, however, it [the Texas Court of Criminal Appeals] indicated that it will interpret this second question so as to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show: “ ‘ In determining the likelihood that the defendant would be a continuing threat to society, the jury could consider whether the defendant had a significant criminal record. It could consider the range and severity of his prior criminal conduct. It could further look to the age of the defendant and whether or not at the time of the commission of the offense he was acting under duress or under the domination of another. It could also consider whether the defendant was under an extreme form of mental or emotional pressure, something less, perhaps, than insanity, but more than the emotions of the average man, however inflamed, could withstand.’ [ Jurek v. State ] 522 S.W.2d [934], at 939-940 [Tex.Crim.App.1975].” (emphasis added).

After briefly considering one other Texas Court of Criminal Appeals decision, FN14 Justice Stewart's opinion states “the Texas capital-sentencing procedure guides and focuses the jury's objective consideration of the particularized circumstances of the individual offense and the individual offender before it can impose a sentence of death.” Id. at 2957. The opinion concludes by observing:

FN14. The case considered was Smith v. State, 540 S.W.2d 693, 696-97 (Tex.Crim.App.1976), cert. denied, 430 U.S. 922, 97 S.Ct. 1341, 51 L.Ed.2d 601 (1977), where the Texas court examined the sufficiency of the evidence to support the jury's affirmative answer to the second special issue. Jurek, 96 S.Ct. at 2957. “ By authorizing the defense to bring before the jury at the separate sentencing hearing whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function.... Because this system serves to assure that sentences of death will not be ‘wantonly’ or ‘freakishly’ imposed, it does not violate the Constitution. Id. at 2958 (emphasis added).

Two years later, in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the Court considered an Ohio death sentence imposed for the murder of a pawnshop operator in the course of an armed robbery of his shop while the defendant, an accomplice, waited outside in the getaway vehicle. Under Ohio law, as the Court construed it, the sentencing judge was required to impose the death sentence for the offense unless he found, by a preponderance of the evidence, one of the three statutory mitigating factors, namely (1) that the victim induced or facilitated the offense, or (2) that the defendant committed the offense under “duress, coercion, or strong provocation,” or (3) that it was “primarily the product of” the defendant's “psychosis or mental deficiency.” Id. 98 S.Ct. at 2959, 2966. “No one planned to kill the pawnshop operator in the course of the robbery.” Id. at 2957. The presentence report reflected that the defendant, a twenty-one-year-old female, had committed “no major offenses” and that in the opinion of a psychologist her “prognosis for rehabilitation ... was favorable.” Id. at 2959. The sentencing judge found that the offense was not the product of psychosis or mental deficiency, did not address the other two statutory mitigating factors, and sentenced the defendant to death, stating “that he had ‘no alternative, whether [he] like[d] the law or not’ but to impose the death penalty.” Id. The plurality opinion by Chief Justice Burger, joined by Justices Stewart, Powell and Stevens, held that “[t]he limited range of mitigating circumstances which may be considered by the sentencer under the Ohio statute is inconsistent with the Eighth and Fourteenth Amendments. ... a death penalty statute must not preclude consideration of relevant mitigating factors.” Id. at 2967. The scope of the plurality opinion is unclear. It focuses on the fact that under the Ohio statute the defendant's lack of specific intent to kill “is relevant for mitigating purposes only if it is determined that it sheds some light on one of the three statutory mitigating factors” and that “consideration of a defendant's comparatively minor role in the offense, or age, would generally not be permitted, as such, to affect the sentencing decision.” Id. at 2966-67. Similarly, the plurality notes that the Ohio statute's “constitutional infirmities can best be understood by comparing it with the statutes upheld in Gregg, Proffitt and Jurek,” id. at 2965, and “the statute now before us is significantly different” than those statutes. Id. at 2966.

More broadly, however, the opinion states that: “... a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. ... that risk is unacceptable and incompatible with the command of the Eighth and Fourteenth Amendments.” Id.

If the quoted language concerning “independent” mitigating weight is understood in its most apparent literal sense, the Lockett plurality would seem to be wholly inconsistent with Jurek, for in Jurek it is clear that the Supreme Court understood what the Texas statute so obviously facially provides, namely that although a wide range of evidence concerning the defendant's character and record and the circumstances of the offense is to be considered in determining whether or not to impose the death penalty, the consideration of that evidence is not “independent” of such relevance as the jury may find it has to the special issues. But such a construction of Lockett is not only much broader than the facts there, but is also at war with the plurality's statement that the Ohio statute was “significantly different” than the Texas enactment and that the former's deficiencies “can best be understood by comparing it with” the valid Texas statute.

Justice Blackmun concurred specially in Lockett, “for a reason more limited than that which the plurality espouses,” namely that the Constitution forbids imposition of “the death sentence for a defendant who only aided and abetted a murder, without permitting any consideration by the sentencing authority of the extent of her involvement, or the degree of her mens rea, in the commission of the homicide.” Id. at 2969 (initial emphasis added). Justice Marshall likewise concurred specially, adhering to his view that the death penalty was always unconstitutional, but also observing that the defendant “was sentenced to death for a killing that she did not actually commit or intend to commit” pursuant to “a statutory scheme that precluded any effective consideration of her degree of involvement in the crime, her age, or her prospects for rehabilitation.” Id. at 2972 (emphasis added). Justice White concurred specially, expressly disagreeing with the plurality opinion, but concluding that “it violates the Eighth Amendment to impose the penalty of death without a finding that the defendant possessed a purpose to cause the death of the victim.” Id. at 2983.FN15 Then Justice Rehnquist dissented, and Justice Brennan did not participate.

FN15. A modified version of this view subsequently gained majority support. See Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Tison v. Arizona, 481 U.S. 137, 107 S.Ct. 1676, 95 L.Ed.2d 127 (1987).

The next significant decision in this context is Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982), where the Court struck down a death sentence imposed on a sixteen year old, whom the sentencing judge found posed a continuing threat of violence to society. There, Justice Powell's plurality opinion focused on the fact that the sentencing judge appeared to have determined that “in following the law” he was not permitted to “consider” the defendant's troubled background, the evidence showing the defendant's neglectful and turbulent family environment, excessive physical punishment by his father, that the defendant was emotionally disturbed and his mental and emotional development were at a level several years below his chronological age, and that the offense was a product of these circumstances. Id. 102 S.Ct. at 873 & nn. 1 & 2, 877. The opinion also observed that the Oklahoma Court of Criminal Appeals, in reviewing the sentence, had noted that defendant's contention “ ‘that the killing was in actuality an inevitable product of the way he was raised,’ ” but held that “ ‘the petitioner's family history is useful in explaining why he behaved the way he did, but it does not excuse his behavior.’ ” Id. at 874. The plurality opinion states that under Lockett “the sentencer in capital cases must be permitted to consider any relevant mitigating factor,” id. at 875, and that “the evidence Eddings offered was relevant mitigating evidence.” Id. at 877. The rule of Lockett was violated because the trial judge “found that as a matter of law he was unable even to consider the evidence” and the state appellate court “took the same approach,” id. at 876, so that “it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf.” Id. at 877.

Justice O'Connor did not join Justice Powell's opinion, but specially concurred, stating that “the reasoning of the plurality opinion in Lockett compels a remand so that we do not ‘risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty.’ ” Eddings, at 879 (quoting Lockett ). A remand was necessary for this reason because “it appears that the trial judge believed that he could not consider some of the mitigating evidence in imposing sentence.” Id. Then Chief Justice Burger, joined by Justices White, Blackmun and then Justice Rehnquist, dissented.

In the case sub judice, not only was no evidence tendered by the defense excluded, but the trial court's instructions expressly authorized consideration of all evidence admitted in answering the special issues, and, unlike Eddings, there is nothing to affirmatively indicate that the jury believed they could not consider any of the evidence for that purpose.

The Court applied Eddings in Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986), to reverse a death sentence because at the sentencing hearing the trial judge had excluded as irrelevant the defense's proffered “testimony of two jailers and one ‘regular visitor’ to the jail to the effect that petitioner had ‘made a good adjustment’ during his time spent in jail,” and the prosecutor had nevertheless argued to the jury “that petitioner would pose disciplinary problems if sentenced to prison and would likely rape other prisoners.” Id. 106 S.Ct. at 1670. Justice White's opinion for the Court states that under Eddings the capital “sentencer may not refuse to consider or be precluded from considering ‘any relevant mitigating evidence.’ ” Skipper at 1671 (quoting Eddings ). Justice White went on to hold: “Consideration of a defendant's past conduct as indicative of his probable future behavior is an inevitable and not undesirable element of criminal sentencing: ‘any sentencing authority must predict a convicted person's probable future conduct when it engages in the process of determining what punishment to impose.’ Jurek v. Texas, 428 U.S. 262, 275, 96 S.Ct. 2950, 2958, 49 L.Ed.2d 929 (1976).... [E]vidence that the defendant would not pose a danger if spared (but incarcerated) must be considered potentially mitigating. Under Eddings, such evidence may not be excluded from the sentencer's consideration.” Id. (footnote omitted).FN16

FN16. The opinion concludes that because the excluded evidence was the only evidence from disinterested witnesses tending to contradict the prosecutor's argument, “it appears reasonably likely that the exclusion of evidence bearing upon petitioner's behavior in jail (and hence, upon his likely future behavior in prison) may have affected the jury's decision to impose the death sentence.” Id. at 1673.

Justice Powell, with then Chief Justice Burger and then Justice Rehnquist joined, concurred in the result, conceding that reversal was required on due process grounds because the death sentence had been sought on a factual basis the defendant had not been allowed to rebut, but rejecting the notion that Eddings and Lockett applied. Id. at 1673-1675. Justice Powell-author of the Eddings plurality-concluded that the States retained authority “to determine what particular evidence within the broad categories described in Lockett and Eddings is relevant in the first instance,” that these determinations should be respected provided “they do not foreclose consideration of factors that may tend to reduce the defendant's culpability for his crime,” id. at 1674, and that “States are only bound to consider those factors that are central to the fundamental justice of execution.” Id. at 1675. Nothing in Justice White's opinion appears inconsistent with these general premises.FN17

FN17. Indeed, Justice White's opinion indicates evidence such as that of good personal hygiene practices while in prison might properly be treated as irrelevant. Id. at 1672 n. 2.

In Hitchcock v. Dugger, 481 U.S. 393, 107 S.Ct. 1821, 95 L.Ed.2d 347 (1987), Justice Scalia, for a unanimous Court, reversed a Florida death sentence where the record “could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances.” Id. 107 S.Ct. at 1824. The defendant had requested that there be taken into account “the testimony concerning petitioner's family background and his capacity for rehabilitation,” matters which were not included in the statutory mitigating circumstances. Id. at 1824.FN18 The Court held that “the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid,” citing Skipper and Eddings. Id.FN19

FN18. The Florida statutory mitigating circumstances as set out in the opinion, id. at 1823 n. 3, did not include potential for rehabilitation or lack of future dangerousness or any analogous consideration (nor any general or residual mitigation category). Nor did they include matters such as troubled family history or turbulent upbringing (here, evidence that as a child the twenty-year-old defendant had the habit of inhaling gasoline fumes, as an apparent result of which his mind tended to wander, and that he was one of seven children of a poor family whose father died of cancer), although they did include whether the crime was committed while “under the influence of extreme mental or emotional disturbance” and whether defendant's capacity to appreciate the criminality of his conduct or to conform it to the requirements of law was “substantially impaired.” The opinion contains no discussion whatever of the possible relevance of these latter factors to the “family background” claims of petitioner.

FN19. The opinion observes that no harmless error argument was made.

The next year the Court revisited the Texas statute in Franklin, where it found no constitutional error in the refusal of a requested jury instruction that any of the special issues could be answered negatively “if you find any aspect of the Defendant's character or record or any of the circumstances of the offense as factors which mitigate against the imposition of the death penalty.” Id. 108 S.Ct. at 2325 & n. 4. The only mitigating evidence was that defendant's prison service for several years both before and after the offense was without any disciplinary incident. Id. at 2324. Justice White's plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, observed that “the Texas courts have expressed resolute adherence to Lockett ” in the decade since it was decided, id. at 2326, and rejected the contention, based on the “ ‘independent’ mitigating weight” language of Lockett, that defendant's “prison disciplinary record reflected so positively on his ‘character’ that the instructions ... should have provided the jury with a ‘mechanism through which to impose a life sentence’ even if the jury otherwise believed that both Special Issues should have been answered ‘yes.’ ” Id. at 2329. Justice White also expressly rejected the claim that the Constitution required that the jury, even if it answered the special issues affirmatively, be “still entitled to cast an ‘independent’ vote against the death penalty,” stating that “this submission is foreclosed by Jurek, which held that Texas could constitutionally impose the death penalty if a jury returned ‘yes' answers to the two Special Issues” and that “ Jurek has not been overruled; and we are not inclined to take any such action now.” Id. at 2330. The plurality opinion asserts that “ Lockett does not hold that the state has no role in structuring or giving shape to the jury's consideration of ... mitigating factors,” id., and that “we have never suggested that jury consideration of mitigating evidence must be undirected or unfocused.” Id. at 2331. Recognizing that “two lines of cases”- Eddings and Lockett on the one hand and Gregg and Proffitt on the other-“are somewhat in ‘tension’ with each other,” Justice White notes that nevertheless “the Texas capital sentencing system has been upheld by this Court ... precisely because of the way in which the Texas scheme accommodates both of these concerns.” Id. He continues by stating:

“Doubtlessly this is why this Court originally approved Texas' use of Special Issues to guide jury discretion in the sentencing phase, notwithstanding the fact-expressly averted to in the plurality opinion for the Court-that mitigating evidence is employed in the Texas scheme only to inform the jury's consideration of the answers to the Special Issue questions.” Id. (emphasis added).

Justice Stevens, joined by Justices Brennan and Marshall, dissented, concluding the defendant's evidence of freedom from disciplinary violations during several years of imprisonment was relevant as mitigation in respects other than simply as it bore on his future dangerousness. Such evidence indicated “that petitioner's character was not without some redeeming features” and that he “may have virtues that can fairly be balanced against society's interest in killing him in retribution for his violent crimes,” id. at 2335, and, by suggesting that his commission of the offense was “not in keeping with his ... usual qualities or fruits,” bore on his “culpability” for the offense as well as on his future dangerousness. Id. at 2336. Justice Stevens concluded that absent some special instruction such as the defendant had requested “it is probable that the jury misapprehended the significance it could attach to mitigating evidence that was descriptive of petitioner's character rather than predictive of his future behavior.” Id. at 2337. This in Justice Stevens' view rendered the sentence invalid under Lockett and Eddings and related cases.

Justice O'Connor, with whom Justice Blackmun joined, specially concurred. Id. at 2332-2335. She considered Lockett, Eddings and Hitchcock as standing for the proposition that “punishment should be directly related to the personal culpability of” the defendant, and she concluded that “a state may not constitutionally prevent the sentencing body from giving effect to evidence relevant to the defendant's background or character or the circumstances of the offense that mitigates against the death penalty.” Id. at 2333. In Justice O'Connor's view, the evidence of defendant's good conduct in prison “had no relevance to any other aspect of petitioner's character” than his future dangerousness. Id. Hence, no special instruction was required. Justice O'Connor contrasted “[t]he limited probative value” of that particular mitigating evidence to “[e]vidence of voluntary service, kindness to others, or of religious devotion [which] might demonstrate positive character traits that might mitigate against the death penalty.” Id. Her opinion also states:

“If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its ‘reasoned moral response’ to that evidence. If this were such a case, then we would have to decide whether the jury's inability to give effect to that evidence amounted to an Eighth Amendment violation.” Id. (emphasis added).

However, Justice O'Connor did not expressly proffer an answer to that question.

Penry

At long last, we turn to the crucial decision in Penry. There the evidence showed that the defendant, 22 years old and on parole from a prior rape conviction at the time of the charged offense, “suffered from organic brain damage and moderate retardation, which resulted in poor impulse control and in inability to learn from experience.” Id. 109 S.Ct. at 2941. The brain damage was likely present from birth, “but may have been caused by beatings and multiple injuries to the brain at an early age.” Id. Penry's mother had “frequently beaten him over the head with a belt when he was a child,” and he was “routinely locked in his room without access to a toilet for long periods of time.” He “was unable to learn in school and never finished the first grade.” Until age twelve, Penry “was in and out of a number of state schools and hospitals.” Id. Thereafter, it took him over a year to learn to print his name. Id. at 2942. The two psychiatrists testifying for the State both opined that Penry was sane, but they also acknowledged his “extremely limited mental ability, and that he seemed unable to learn from his mistakes,” one indicating that Penry had “an inability to learn from experience and a tendency to be impulsive and to violate society's norms.” Id. Defense counsel unsuccessfully objected to the sentencing charge on several grounds, including its failure to define “deliberately” as used in the first special issue, its failure to “authorize a discretionary grant of mercy based upon the existence of mitigating circumstances,” and its failure to condition a death sentence on a determination “that any aggravating circumstances ... outweigh any mitigating circumstances.” Id. At sentencing, defense counsel argued, among other things, “that if a juror believed that Penry, because of the mitigating evidence of his mental retardation and abused background, did not deserve to be put to death, the juror should vote ‘no’ on one of the special issues even if it believed the State had proved that the answer should be ‘yes.’ ” Id. at 2950.

In response, the prosecutor noted that the defense counsel had not argued the special issues or shown how the state had failed to meet its burden of proof on them.

The Court, in an opinion by Justice O'Connor, joined in this respect by Justices Brennan, Marshall, Blackmun and Stevens, set aside the death sentence, concluding: “In light of the prosecutor's argument, and in the absence of appropriate jury instructions, a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.” Id. FN20. Justice Scalia, joined by the Chief Justice and Justices White and Kennedy, dissented from this holding. Id. at 2963-68.

Justice O'Connor's opinion also held that the Constitution did not prohibit execution of the mentally retarded, although recognizing that that issue was within the first exception to the doctrine of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), barring retroactive habeas application of new rules. Id. at 2952-2958. All Justices concurred in the Teague aspect of this holding; but Justices Brennan, Marshall, Blackmun and Stevens dissented from the substantive holding, id. at 2958-2963, while the Chief Justice and Justices White, Scalia and Kennedy agreed with it (although disagreeing with a portion of Justice O'Connor's reasoning in this respect). Id. at 2963-64. This aspect of Penry is not implicated in our present consideration of the case sub judice. Justice O'Connor first determined that the rule Penry sought to establish-that where evidence of the defendant's “mental retardation and abused childhood ... is presented, Texas juries must, upon request, be given jury instructions that make it possible for them to give effect to that mitigating evidence”-was not a “ ‘new rule’ ” for purposes of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), “because it is dictated by Eddings and Lockett.” Penry at 2947. The opinion goes on to explain that “ Eddings makes clear that it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence.” Id. at 2947. Quoting her concurring opinion in California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987), Justice O'Connor states that “defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse” and that a capital sentence “ ‘should reflect a reasoned moral response to the defendant's background, character, and crime.’ ” Penry at 2947. Penry's contention is again described as being that the Texas statute was applied in a manner “precluding the jury from acting upon the particular mitigating evidence he introduced.” Id. Yet again, his claim is characterized as follows:

“Penry argues that his mitigating evidence of mental retardation and childhood abuse has relevance to his moral culpability beyond the scope of the special issues, and that the jury was unable to express its “reasoned moral response” to that evidence in determining whether death was the appropriate punishment. We agree. Thus, we reject the State's contrary argument that the jury was able to consider and give effect to all of Penry's mitigating evidence in answering the special issues without any jury instructions on mitigating evidence.” Id.

The opinion goes on to explain this conclusion. Respecting the first special issue, the opinion, though suggesting some doubt about the matter, assumes, arguendo, that “ ‘deliberately’ ” was understood by the jury in this connection to mean “something more than” simply “ ‘intentionally’ ” (which had already been established by the guilty verdict). Id. at 2948. It concedes that “Penry's mental retardation was relevant ... to whether he was capable of acting ‘deliberately.’ ” Id. at 2949. Nevertheless, “[p]ersonal culpability is not solely a function of a defendant's capacity to act ‘deliberately.’ ” A “rational juror” could have concluded “in light of Penry's confession” that he “deliberately killed ... to escape detection.” FN21 However, “that same juror could also have concluded that Penry”-because his “mental retardation” made him “less able than a normal adult to control his impulses or to evaluate the consequences of his conduct,” and “because of his history of childhood abuse”-“was less morally ‘culpable than defendants who have no such excuse,’ but who acted ‘deliberately’ as that term is commonly understood.” Id. Thus, in the absence of a sufficiently broad definition of deliberately “we cannot be sure that the jury was able to give effect to the mitigating evidence of Penry's mental retardation and history of abuse in answering the first special issue.” Id. FN22

FN21. The opinion does not detail the content of the confession. However, it is described in the opinion of the Court of Criminal Appeals on direct appeal, Penry v. State, 691 S.W.2d 636 (Tex.Crim.App.1985), cert. denied, 474 U.S. 1073, 106 S.Ct. 834, 88 L.Ed.2d 805 (1986), as reflecting that Penry “had been planning for months to rape somebody and that in the three weeks prior to the instant offense appellant had focused on the deceased and [another] as possible victims,” id. at 653, that on the morning of the offense when he decided to go to the victim's house (where he forced his way in) and rape her “I knew that if I went over to the chick's house and raped her that I would have to kill her because she would tell who I was to the police and I didn't want to go back to the pen,” id. at 641, 652-53, and that while the victim was lying helpless on the floor following the rape “I came back and sat on her stomach. I told her that I was going to kill her and that I hated to but I thought she would squeal on me.” Id. at 641.

The opinion of Justice Clinton, concurring in the result on the direct appeal, espouses the view that the failure to define “deliberately” was error (the majority held it was not error), but that the error was harmless “due to the fact that the evidence of ‘deliberateness' was uncontested, overwhelming and in large part gleaned from appellant's written admissions.” Id. at 657. FN22. Judge Reavley, writing for the court in our consideration of Penry, observed concerning the deliberateness issue: “Having just found Penry guilty of an intentional killing, and rejecting his insanity defense, the answer to that [the first] issue was likely to be yes. Although some of Penry's mitigating evidence of mental retardation might come into play in considering deliberateness, a major thrust of the evidence of his background and child abuse, logically, does not.” Penry v. Lynaugh, 832 F.2d 915, 925 (5th Cir.1987) (emphasis added), rev'd, Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

As to the second special issue dealing with future dangerousness, Justice O'Connor observes that Penry's mitigation evidence “is relevant only as an aggravating factor because it suggests a ‘yes' answer to the question of future dangerousness.” Id. at 2949 (initial emphasis added). She continues by stating that the evidence of Penry's “mental retardation and history of abuse,” though diminishing his blameworthiness, “indicates that there is a probability that he will be dangerous in the future,” and then quotes with approval from Judge Reavley's opinion for this court in that case, including the following: “ ‘If anything, the evidence made it more likely, not less likely, that the jury would answer the second question yes. It did not allow the jury to consider a major thrust of Penry's evidence as mitigating evidence.’ 832 F.2d at 925 (footnote omitted) (emphasis in original).” Id. at 2950 (initial emphasis added).

Justice O'Connor then turns briefly to the third special issue, concerning whether the killing “was unreasonable in response to the provocation, if any, by the deceased.” Although the opinion recites the evidence supporting the affirmative answer to this issue,FN23 it does not expressly say or even suggest that the mitigating evidence had any relevance to the question (nor does it recite that the State asserted any such relevance). Id. at 2950. FN23. “Penry's own confession indicated that he ... killed her after her struggle had ended and she was lying helpless.” Id. at 2950. See also n. 21 supra (indicating that killing was to avoid detection and was contemplated for this purpose from the beginning).

Justice O'Connor concludes that resentencing is required because “the jury was not provided with a vehicle for expressing its ‘reasoned moral response’ to” the evidence of Penry's “mental retardation and abused background” in “rendering its sentencing decision.” Id. at 2952.

Penry clearly stands for the proposition that merely because the mitigating evidence has any relevance to a negative answer to one of the special issues does not necessarily suffice in all cases to sustain application of the Texas statute. Penry's evidence had some such relevance to the first issue. The more difficult question is whether the Texas statute can operate as written in any case where the mitigating evidence, though all clearly relevant to support a negative answer to one or more of the issues, nevertheless also has any mitigating relevance whatever beyond the scope of the special issues. Penry can fairly be read as precluding use of the Texas statutory scheme in any such situation. But, Penry can also fairly be read as addressing only a situation where some major mitigating thrust of the evidence is substantially beyond the scope of any of the issues. That, indeed, was the case in Penry, where as to the third issue the mitigating evidence was all essentially irrelevant, as to the second issue it was only affirmatively harmful to the defense, and as to the first issue its favorable relevance was essentially minor but its “major thrust” was beyond the scope of the issue (see notes 21 and 22 supra).

We conclude that Penry does not invalidate the Texas statutory scheme, and that Jurek continues to apply, in instances where no major mitigating thrust of the evidence is substantially beyond the scope of all the special issues. That is particularly appropriate in a case such as this, where there is no “major thrust” of any of the mitigating evidence which is not relevant to support a negative answer to the second special issue, the only special issue which Jurek addressed. Any other holding, it seems to us, would effectively render Jurek, and the Texas statutory scheme which it sustained, dead letters.

It is a commonly accepted truism that, just as none of us is all good, so also none of us-not even those who will probably commit criminal acts of violence constituting a continuing threat to society-is all bad. The number of capital crime defendants who have nothing in their background which might tend to reflect a positive character trait-who have never performed any voluntary service or exhibited any kindness to others or supported their family, to mention but three possible examples-must be miniscule at most. And this, of course, has been obvious all along. So too has it always been obvious that many defendants-because of some transitory condition such as relative youth or emotional distress incident to one of life's many crises to which all are subject such as divorce or loss of a loved one or a job-may, when they committed an offense, have been less able than those not so afflicted to control themselves and evaluate their conduct and its consequences. If Penry is read broadly, then in none of these cases can the Texas statutory scheme pass muster. Every one of these cases-the case where a month previously the defendant broke up with his girl friend or lost his job, the case where as a youth the defendant volunteered to mow a neighbor's yard or was in his early twenties when the offense was committed, and all the others-would demand some other system of sentencing trial. The Texas statutory scheme would be essentially meaningless and Jurek would have in substance been overruled.

We doubt that the Supreme Court intended this. Not only has the Court not expressly overruled Jurek, but to the contrary it has cited Jurek with approval numerous times. As an early example, in Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980), the Court noted that Jurek upheld the Texas statutory scheme which “mandates a sentence of death” if the three “statutory penalty questions” are answered affirmatively, id. 100 S.Ct. at 2524 n. 1, and observed that Texas could properly ensure that its capital case jurors “be willing not only to accept that in certain circumstances death is an acceptable penalty but also to answer the statutory questions without conscious distortion or bias,” while nevertheless recognizing that “jurors under the Texas ... procedure unavoidably exercise a range of judgment and discretion while remaining true to their oaths.” Id. at 2527. See also Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980). As we have previously noted, Lockett states that the deficiencies of the Ohio statute “can best be understood” by comparing it to, inter alia, the “significantly different” Texas statute which Jurek upheld. Lockett, 98 S.Ct. at 2965, 2966. While the Eddings plurality does not cite Jurek, many decisions of the Court since then have. We have noted the prominence given to Jurek in Skipper, 106 S.Ct. at 1671. Other post- Eddings decisions citing Jurek with approval include Lowenfield v. Phelps, 484 U.S. 231, 108 S.Ct. 546, 554-55, 98 L.Ed.2d 568 (1988); Sumner v. Shuman, 483 U.S. 66, 107 S.Ct. 2716, 2721, 97 L.Ed.2d 56 (1987); Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 1770, 90 L.Ed.2d 137 (1986); Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 876, 879, 79 L.Ed.2d 29 (1984) (declining to “effectively overrule Jurek ”); California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 3453-54, 77 L.Ed.2d 1171 (1983); Barefoot v. Estelle, 463 U.S. 880, 103 S.Ct. 3383, 3396, 77 L.Ed.2d 1090 (1983); and Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 2742 n. 13, 77 L.Ed.2d 235 (1983). The Franklin plurality relied principally on Jurek and observed that the Texas “method for providing for the consideration of mitigating evidence has been cited repeatedly with favor.” Id. 108 S.Ct. at 2331 (footnote omitted). Neither the Franklin concurrence nor Penry purports to jettison Jurek. Although Penry clearly makes an exception to Jurek, it gives no express indication that the exception made is conceived of or recognized as being vastly broader than the rule itself, or that Jurek and the Texas scheme will thereafter remain valid only in the very rarest of cases.

Since Penry, the Court has continued to cite Jurek with approval. Thus, the Chief Justice's opinion in Blystone v. Pennsylvania, 494 U.S. 299, 110 S.Ct. 1078, 1081-82, 108 L.Ed.2d 255 (1990), joined in by Justices White, O'Connor, Scalia and Kennedy, describes Jurek and the Texas system in a way which obviously would be wholly inappropriate if either were viewed as still valid in no more than a small minority of cases. The same can be said for the opinion of Justice Kennedy, joined in by the Chief Justice and Justices White, O'Connor and Scalia, in Saffle v. Parks, 494 U.S. 484, 110 S.Ct. 1257, 1261-62, 108 L.Ed.2d 415 (1990), the here pertinent language of which is quoted in the margin.FN24 Plainly, Justice Kennedy regards Penry as the exception to Jurek, not Jurek the exception to Penry.

FN24. Justice Kennedy's opinion states: “To the extent that Penry's claim was that the Texas system prevented the jury from giving any mitigating effect to the evidence of his mental retardation and abuse in childhood, the decision that the claim did not require the creation of a new rule is not surprising. Lockett and Eddings command that the State must allow the jury to give effect to mitigating evidence in making the sentencing decision; Penry's contention was that Texas barred the jury from so acting....

“Penry's claim, moreover, did not ask us to apply the reasoning of Lockett and Eddings so much as it required us to apply our decision in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Penry interpreted Jurek as holding that the Texas death penalty statute is constitutional so long as it is interpreted by the Texas courts to permit the jury to consider mitigating circumstances proffered by the defendant.... Having thus construed Jurek, we concluded that resolution of Penry's claim that ‘those assurances were not fulfilled in his particular case,’ 492 U.S., at [318], 109 S.Ct., at 2947 (emphasis in original), did not involve the creation of a new rule.... Penry, ... must be understood in terms of the Court's ruling in Jurek, and its application in later cases. We did not view Lockett and Eddings as creating a rule different from that relied upon in Jurek; rather, we indicated that Lockett and Eddings reaffirmed the reasoning in Jurek....” Id. 110 S.Ct. at 1261-62 (initial emphasis added).

Justice Kennedy goes on to cite Jurek as an example of “our long-standing recognition that, above all, capital sentencing must be reliable, accurate, and nonarbitrary.” Id. 110 S.Ct. at 1262. Moreover, as Justice Kennedy points out in Saffle (see note 24, supra), a broad reading of Penry is inconsistent with Penry 's holding that its result was “dictated by” Lockett and Eddings for purposes of Teague.

Similar considerations require rejection of any notion that a broad reading of Penry is consistent with stare decisis because the Texas courts have not kept the “assurance” of Jurek, or the Texas scheme is really different than it appears on its face or had been described by the Texas courts prior to the Supreme Court's decision in Jurek. The opinion in Jurek-rendered the same day as Woodson required “particularized consideration of relevant aspects of the character and record of each convicted defendant”-explicitly recognizes that the Texas jury is only allowed to answer “yes” or “no” to three statutory questions and that if these are answered “yes” the death penalty is automatic. The exact wording of the questions is reflected in the Court's opinion. The Court holds that the issue is whether these specific “enumerated questions allow consideration of particularized mitigating factors.” Id. at 2956. The Court gives an affirmative answer not on the basis of any assumed special instructions or definitions being given to the jury, but rather entirely on what evidence the Texas courts have said may be brought before and considered by the jury in answering the second (future dangerousness) question. Thus, the Court relies on the Texas court opinion which it describes as interpreting “the second question to allow a defendant to bring to the jury's attention whatever mitigating circumstances he may be able to show.” Id. (emphasis added). The Court next quotes the Texas court's language in which it says “the jury could consider” various items of evidence-including matters such as presence or absence of past criminal conduct, “age of the defendant” and “mental or emotional pressure”-“ [i]n determining the likelihood that the defendant would be a continuing threat to society. ” Id. (emphasis added). The Supreme Court then says “[b]y authorizing the defense to bring before the jury ... whatever mitigating circumstances relating to the individual defendant can be adduced, Texas has ensured that the sentencing jury will have adequate guidance to enable it to perform its sentencing function.” Id. at 2958 (emphasis added). This “assurance” has not been broken or even slightly bent, but on the contrary has been fully performed. Texas has continued to interpret its sentencing statute just exactly as the Supreme Court in Jurek assumed it would.

The Supreme Court's opinion in Jurek reflects that the defendant there was twenty-two years old, had been drinking beer earlier in the day of the offense, and had been steadily employed and contributed to his family's support. Id. at 2954. At the very least, Jurek must stand for the proposition that these mitigating factors-relative youth and evidence reflecting good character traits such as steady employment and helping others-are adequately covered by the second special issue. Penry cannot hold otherwise and at the same time not be a “new rule” for Teague purposes. The decisions in Eddings and Lockett do not justify a contrary conclusion, as Saffle says “[w]e did not view Lockett and Eddings as creating a rule different from that relied upon in Jurek; rather” these cases “reaffirmed the reasoning in Jurek.” Saffle at 1262.

We believe that what Penry represents is a set of atypical circumstances of a kind that, quite understandably, neither the Texas Court of Criminal Appeals nor the Supreme Court in Jurek had in mind, namely circumstances where the defense's mitigating evidence would have either no substantial relevance or only adverse relevance to the second special issue. Typically, evidence of good character, or of transitory conditions such as youth or being under some particular emotional burden at the time, will tend to indicate that the crime in question is not truly representative of what the defendant's normal behavior is or may become over time, and that the defendant may be rehabilitable so as not to be a continuing threat to society. The core of Jurek-which we cannot conclude has been abandoned-is that the mitigating force of this kind of evidence is adequately accounted for by the second special issue. But in Penry the Court was faced for the first time with a wholly different type of mitigating evidence. Not evidence of good character, but of bad character; not evidence of potential for rehabilitation, but of its absence; not evidence of a transitory condition, but of a permanent one; but nonetheless evidence which was strongly mitigating because these characteristics were due to the uniquely severe permanent handicaps with which the defendant was burdened through no fault of his own, mental retardation, organic brain damage and an abused childhood. There was no way this type of evidence could be given any mitigating force under the second special issue. To recognize that, as Penry did, is not necessarily to deny the validity of Jurek as it applies to the more typical case.

We conclude that the core of Jurek remains intact, and we now apply it to the circumstances sub judice.

Youth

The primary mitigating factor which Graham urges was not adequately encompassed in the special issues is his youth. We disagree.

For at least five years before Graham's trial, it was established Texas law that the jury, in answering the second special issue, could consider “the age of the defendant.” Jurek v. State, 522 S.W.2d 934, 940 (Tex.Crim.App.1975), aff'd sub nom. Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Since then, the Texas decisions have consistently followed this rule. For example, in Roney v. State, 632 S.W.2d 598 (Tex.Crim.App.1982), the Court of Criminal Appeals, noting that the defendant was seventeen and that “the age of the defendant” was “relevant in deciding the second punishment issue,” id. at 601, held that considering the entire record, including the defendant's “young age,” the evidence was insufficient to support the jury's affirmative answer to the second issue. Id. at 603. See also, e.g., Robinson v. State, 548 S.W.2d 63, 64 (Tex.Crim.App.1977); Earvin v. State, 582 S.W.2d 794, 798-99 (Tex.Crim.App.1979); Brasfield v. State, 600 S.W.2d 288, 293 n. 3 (Tex.Crim.App.1980); Keeton v. State, 724 S.W.2d 58, 61 (Tex.Crim.App.1987).

The Supreme Court's opinion in Jurek affirmatively reflects that the defendant was “22 years old at the time” of the offense, id. at 2954, and, in upholding the death sentence and the Texas scheme, quotes the portion of the Court of Criminal Appeals' opinion stating that in answering the second issue the jury can consider “ ‘the age of the defendant.’ ” Id. at 2957. Jurek thus squarely answers the question of whether “youth” is adequately taken into account by the second special issue. If Penry compels a different result, it would have been a new rule for purposes of Teague, as Saffle makes clear. Indeed, if Jurek may not apply to the very type of case that was then before the Court, it has been overruled. But, as noted, the Supreme Court has not so treated it. Moreover, Penry itself involved a twenty-two-year-old defendant, id. at 2941, and the opinion contains no suggestion whatever that this fact was one which could not be adequately taken into account in answering the statutory special issues.FN25

FN25. Nor can we accept the notion that twenty-two is not youthful for purposes of any constitutionally mandated rule that the capital sentencer must be able to take into account the defendant's “youth” at the time of the offense. Texas clearly regards those in their early twenties as youthful for this purpose. See, e.g., Lackey v. State, 819 S.W.2d 111, 129 (Tex.Crim.App.1991) (describing as a mitigating circumstance “youthful age (23) at the time of the offense”); Trevino v. State, 815 S.W.2d 592, 622 (Tex.Crim.App.1991) (“There is also mitigating evidence of appellant's youth; appellant was twenty-one years old at the time of the offense”); Madden v. State, 799 S.W.2d 683, 684 (Tex.Crim.App.1990) ( “Appellant, however, introduced substantial mitigating evidence. He was only twenty-one years old at the time of this offense”). The salient factors which make “youth” mitigating-principally inexperience with resultant diminished judgment and self-control-are all generally present among those in their early twenties, albeit to a lesser degree than in those still younger. And this, indeed, is the approach taken by Graham's counsel, as reflected in his statements in closing argument (see note 28 infra; see also text at note 9 call supra). We do not believe that for this purpose a categorical distinction is proper based on some specific age, such as eighteen, which is often the age of majority (in Texas minors are those under eighteen who have never been married; Tex. Probate Code § 3(t)) or the minimum age for purposes of engaging in certain conduct (cf. U.S. Const.Am. XXVI). The Supreme Court rejected such an approach in holding that the Constitution does not forbid the death sentence for offenses committed at age sixteen or seventeen. Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 106 L.Ed.2d 306 (1989). Moreover, such an approach would be at war with the concept of individualized capital sentencing which underlies Penry. It is common knowledge that individuals develop and mature at different rates, and it will frequently be the case, for example, that one eighteen and, say, two months, is actually less “mature” and more “youthful” than another who is seventeen and eight months.

Since Penry, the Texas Court of Criminal Appeals has continued to hold that the second special issue provides an adequate vehicle for the jury to take into account the defendant's youth. See Ex parte McGee, 817 S.W.2d 77, 80 (Tex.Crim.App.1991); Lackey v. State, 819 S.W.2d 111 (Tex.Crim.App.1991); Trevino v. State, 815 S.W.2d 592, 622 (Tex.Crim.App.1991). We, too, appear to have recognized this. See DeLuna v. Lynaugh, 890 F.2d 720, 722 (5th Cir.1989) (evidence that defendant was twenty-one when offense committed would not bring him within Penry ).

As the panel majority and dissent each correctly recognized, youth is mitigating because insufficient experience has not allowed judgment and self-control to fully develop, but the limitations attributable to youth are all necessarily transitory. Graham, at 898, 899. Therefore, whatever is mitigating about youth tends to lend support to a “no” answer to the second special issue, and its tendency to do so is essentially proportional to the degree to which the jury concludes such factors were influential in the defendant's criminal conduct. The greater the role such attributes of youth are found to have played in the defendant's criminal conduct, the stronger the inference that, as his youth passes, he will no longer be a danger to society. Thus, the second special issue affords an adequate vehicle by which the jury can give effect to the mitigating aspect of youth.

We reject the contention that the second special issue is inadequate for this purpose because the jury may believe that youth mitigated the defendant's culpability though not his future dangerousness. But youth is not mitigating with respect to conduct not attributable to it. Thus, Penry says that evidence of a defendant's background and character is relevant because “ ‘defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse.’ ” Id. at 2947 (quoting Justice O'Connor's concurrence in California v. Brown, 479 U.S. 538, 107 S.Ct. 837, 841, 93 L.Ed.2d 934 (1987)) (emphasis added). See also Boyde v. California, 494 U.S. 370, 110 S.Ct. 1190, 1199, 108 L.Ed.2d 316 (1990) (same). FN26 To the extent that Graham's criminal conduct was a product of his youth he was for that reason not only less culpable but, to the same extent, also less likely to be dangerous when no longer young. To the extent Graham's criminal conduct was not attributable to his youth, his youth neither reduced his culpability nor his future dangerousness. Nothing in the present record suggests that the jury here might have viewed the matter in any other light. FN27

FN26. It is true that a hypothetical juror might conclude that death is always an inappropriate penalty for capital murder committed by a seventeen year old simply because the offender was seventeen, and regardless of whether the offense was to any extent attributable to his youth. However, such a conclusion is not based on individualized consideration of the offender but merely on a characteristic which is precisely the same for him as for every other human being who attains that age, and as such amounts to no more than disagreement with the Texas law which allows execution of seventeen year olds for capital murder.

FN27. Moreover, to say that the second special issue is for this reason inadequate to take youth into account, is necessarily to also say that it is inadequate to take into account any other mitigating factor which is not wholly coterminous and synonymous with future dangerousness. Yet, as previously indicated, that would be contrary to the core holding of Jurek, and would in effect render Jurek and the Texas statute it upheld a dead letter. We do not read Penry as going that far.

Finally, the evidence here, and the manner in which the case was approached and tried in this respect, do not suggest any special factor or circumstance militating against application of what we conceive to be the appropriate general rule, namely that the mitigating force of the defendant's youth at the time of the offense may be adequately taken into account in answering the second special issue. In marked contrast to Penry, there is here nothing to suggest that defense counsel desired to have the mitigating force of youth presented or considered in any other manner than as a basis for a negative answer to the second special issue.FN28 Cf. Lowenfield, 108 S.Ct. at 552 (even where absence of objection is not a waiver it may reflect posture and understanding of trial participants).

FN28. Counsel in essence argued that Graham's youth explained his May 13 to 20 crime spree and that he would grow out of it: “A young man, hasn't even reached 20 years old. He goes on a rage for 7 days, 7 days out of his life. He is not going to ever forget.... Gary Graham, 17 years old, went on a rage for 7 days,” and: “... what you are called upon to do is predict whether some time in the future Gary Graham could become a person fit to return to society. At least he is alive. See, when you are 17 or 20, you are young, hot-to-trot. You are going to set the world on fire one way or the other, right or wrong. When people come in their middle 20's and middle 30's, a change a little bit from your more radical stands to a more somewhat upright posture because you have had not only time to think, but to see what is in the world. Most of the crime is committed by young people. By the time you get to 25 or 35, it's different. 35 and above.... because there is something about human nature that not only changes you, but slows you down as you live. If you live. If you live....”

The only dissatisfaction counsel expressed with the charge or special issues was by pre-trial motion asserting that the special issues left too much standardless discretion to the jury. See note 11, supra. Nothing in the evidence indicates any basis for believing that the offense charged was any more (or less) a product of Graham's youth than any of his other criminal conduct shown by the evidence, and neither side ever suggested otherwise either at trial or in this court.

We reject Graham's contention in this court that his case is like Penry because here the prosecutor's argument (especially in respect to “direction” and “seeds of our past”) amounted to an implied assertion that Graham's youth itself favored an affirmative answer to the second special issue. We disagree. The clearly most reasonable understanding of this unobjected to argument is that it is no more than the mere assertion that Graham's criminal conduct was the most reliable predictor of the direction his future would take. There is absolutely nothing in the argument which implies that this is any more likely so because the events of May 13-20, 1981 occurred while Graham was seventeen as opposed to, say, thirty-five (nor even that this was as likely so as it would have been if Graham had been thirty-five in May 1981). The prosecutor was not required to concede that just because of Graham's youth he would not in the future be a danger to society. And, there is nothing inconsistent in the assertions that, on the one hand, some youthful criminals may pose a danger to society even after they mature, and, on the other hand, that criminal acts by youths are less likely to be predictive of future such behavior on their part as a mature adult than are similar acts by those who are already mature adults. Moreover, we are aware of nothing to suggest that Texas has ever treated youth in this connection as anything other than a factor tending to favor (albeit not necessarily to require) a “no” answer to the second special issue. We reject Graham's contention that, in light of Penry, the mitigating force of his youth could not adequately be given effect in answering the special issues.

Other circumstances

Although the mitigating factor primarily at issue is youth, Graham also contends that under Penry the testimony of his stepfather, Samby, and his grandmother, Chron, constituted mitigating evidence which could not adequately be given effect in answering the special issues. We disagree.

With one exception to be noted, the testimony of Samby and Chron simply constituted rather mild evidence of normal, good-though not exceptionally good-character on Graham's part: he had respect for and was nice to his mother and stepfather, cared about and was close to his mother, gave his grandmother no problems or trouble, was never violent, never had weapons, would willingly help out around the house, went to school and to church, “loved the Lord,” worked and contributed to the support of his two children.

It appears to us that the principal mitigating thrust of all this evidence is to suggest that the events of May 13-20 were aberrational and atypical of Graham's true character and that he thus had potential for rehabilitation, and would not be a continuing threat to society. As such, the mitigating force of this evidence can adequately be given effect under the second special issue.

This evidence does not seem different in kind from that before the Supreme Court in Jurek, where the defendant's father testified that “the petitioner had always been steadily employed since he had left school and that he contributed to his family's support.” Id. at 2954. Nor does this sort of character evidence seem other than wholly typical of what might be expected in a vast number of cases. As noted, were evidence of this kind held to invoke Penry, then Jurek and the Texas statutory scheme would for all practical purposes be wholly eviscerated.FN29 Further, this sort of evidence is different in kind from that involved in Penry, as its relevance to each of the special issues, and particularly the second, is entirely in the direction of a negative answer, and it has no tendency to reduce culpability for the particular crime charged in any way not encompassed within one or more of the special issues. Unlike Penry type disability evidence, which can reduce culpability where it is inferred that the crime is attributable to the disability while other similar offenders have no such “excuse,” good character evidence provides no variety of “excuse.” Further, absent some unusual indication of an essentially permanent adverse change in character (e.g., brain damage), to the extent that the testimony is convincing that the defendant's general character is indeed good it will also, to essentially the same extent, be convincing that he will not continue to be a threat to society.

FN29. We observe that since Penry, the Texas courts have held that this kind of evidence is not Penry evidence and does not mandate departure from the Jurek format. See, e.g., Ex parte Baldree, 810 S.W.2d 213, 216-17 (Tex.Crim.App.1991) (evidence that defendant “has been caring, kind, and nonviolent to others ... is ... reflective of his character and bears upon his propensity, or lack thereof, for committing future violent acts” and thus is adequately covered by the second special issue without further jury instructions); Richardson v. State, 1991 WL 99949 (Tex.Crim.App. June 12, 1991, No. 68934) (“evidence of appellant's religious devotion is Franklin evidence and could be properly addressed by a jury answering issue number two”); Mooney v. State, 817 S.W.2d 693 (Tex.Crim.App.1991) (same). See also Trevino v. State, 815 S.W.2d 592, 622 (Tex.Crim.App.1991). In Boyd v. State, 811 S.W.2d 105, 111-112 (Tex.Crim.App.1991), the court considered evidence that appellant “was a good worker and was promoted,” “was always polite, nice and helpful,” “always behaved in a respectful manner,” and helped his sister “with her asthma” and his mother “when she hurt her ankle.” Id. at 111. In rejecting a Penry claim, the court said that this evidence “was given full effect within the second special issue” and “[t]o hold otherwise would be tantamount to declaring the capital sentencing scheme facially unconstitutional.” Id. at 112 (footnote omitted).

There remains only to consider the brief portion of the testimony of Chron that Graham's mother was frequently hospitalized, commencing when he was approximately three, with what Chron characterized without elaboration as a “nervous condition” or “mental illness.” In an appropriate context, evidence of this general kind might well form part of a proper Penry presentation. We conclude that it does not do so in this case, however. There was no evidence of any effect this had on Graham, or of any reaction on his part to it, and no attempt was made to even explore that subject. Further, the entire context in which this testimony was presented, from the point of view both of Chron's testimony as a whole and of all the defense evidence at the sentencing hearing, suggests that there was no adverse effect on Graham. There was no suggestion that he was unhappy, withdrawn, moody, difficult to control or the like, or that he had any mental or psychological problems. The entire thrust of the defense evidence, both from Samby and Chron, was the exact opposite, namely that Graham was a good, stable, nonviolent, ordinary youth. There is no substantial evidence that Graham's criminal conduct was “attributable to a disadvantaged background, or to emotional and mental problems,” as Justice O'Connor used those terms in Penry. Id. at 2947. See also Boyde, 110 S.Ct. at 1199. In this respect, the evidence as a whole is simply not comparable to that in Penry or Eddings.

In sum, not only Graham's youth but also his other mitigating evidence could adequately be taken into account in answering the special issues, particularly the second. FN30. We have focused throughout on the second special issue because it is with respect to it that Graham's evidence had the most apparent and strongest mitigating relevance, and because that is the issue addressed in Jurek. We do not imply, however, that Graham's evidence lacked mitigating relevance to the first (or even to the third) special issue; it does have such relevance, and that relevance strengthens our conclusion that the special issues were adequate in this case; but whether such relevance to issues other than the second would alone suffice to take this case out of Penry's scope is another matter.

Conclusion

As directed by the Supreme Court, we have further considered our previous affirmance of the district court's denial of habeas relief in light of Penry. We conclude that our prior disposition is consistent with Penry, and remain convinced that it was proper. Accordingly, we reinstate our prior mandate affirming the district court's dismissal of Graham's habeas petition.

AFFIRMED.

REAVLEY, Circuit Judge, with whom POLITZ, KING, DAVIS, and WIENER, Circuit Judges, join, dissenting:

The Supreme Court directed this court to reconsider Graham's petition in the light of Penry, not to modify Penry or to shape Penry for a comfortable fit with Jurek. In Penry, Justice O'Connor wrote for the Court that the jury must be able to fully consider and give effect to all “evidence that mitigates against the death penalty” and is relevant to a defendant's background, character, or the circumstances of the crime. 109 S.Ct. at 2947, 2951. If youth is an important mitigating factor-and the Court has said that it is FN1-then Penry requires that the sentencing jury be allowed to decide that the death penalty is an inappropriate penalty for Gary Graham. That decision could not have been given effect in his case, and the writ should be granted.

FN1. See panel opinion; 896 F.2d at 897-98. In Eddings v. Oklahoma the Supreme Court said: “All this does not suggest an absence of responsibility for the crime of murder, deliberately committed in this case. Rather, it is to say that just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must background and emotional development be duly considered in sentencing.” 102 S.Ct. at 877. The panel majority stated the Penry rule as follows: “a jury sentencing a capital defendant who provides evidence about his character, his background, or the circumstances of the offense that is relevant to personal culpability beyond the scope of the statutory questions must receive instructions that allow the jury to give effect to such evidence.” 896 F.2d at 896. The en banc majority, after 21 months, produces an exclusion to the Penry rule and holds that no instruction or jury decision is needed for transitory circumstances of mitigation. This court says that any circumstance relevant to whether the defendant is rehabilitable may be adequately treated by the answer to the second issue. Contrary to what the Supreme Court wrote, the Fifth Circuit explains Penry as an atypical case where the mitigating evidence either had no substantial relevance, or no adverse relevance, to the second special issue of future dangerousness. I believe my colleagues have gone beyond and contrary to the directions of the Supreme Court and have usurped the role of our superiors.

Graham was 17 years old, legally a minor, when he committed the crime. It is beyond dispute that this fact was a mitigating circumstance, material to the “moral culpability” of the defendant. The jury's sentencing role is to consider such factors and determine whether the defendant is indeed personally and morally culpable. But “culpability” at the punishment phase is not simply a question of guilt or “blameworthiness,” but rather a question of “deathworthiness.” See Lackey v. State, 819 S.W.2d 111, 129 (Tex.Crim.App.1991) (en banc). To say that evidence mitigates a defendant's culpability is not to say that he is any less guilty or deserving of blame, but that he is less deserving of death. See Penry, 109 S.Ct. at 2950 (a juror could believe that “Penry lacked the moral culpability to be sentenced to death”).

The special issues of the Texas statute demonstrate how evidence can be relevant to a defendant's culpability. The guilty defendant may be less deserving of death because the evidence shows that he did not act deliberately, or that he does not pose a continuing threat to society, or that his conduct was not unreasonable in response to provocation by the deceased. Indeed, much evidence is mitigating only because it is relevant to one or more of these issues. See Franklin v. Lynaugh, 487 U.S. 164, 108 S.Ct. 2320, 2333, 101 L.Ed.2d 155 (1988) (O'Connor, J., concurring) (evidence of the defendant's good conduct in prison had no relevance to his character outside of the special issues). But the message of Penry is that some evidence may make the defendant less deserving of death for reasons “beyond the scope of the special issues.” Penry, 109 S.Ct. at 2948. The evidence of Penry's mental retardation and history of abuse may not have made his crime less deliberate or his continuing threat to society less probable, but it may nevertheless have made him less deserving of death because it may have made him “less able than a normal adult to control his impulses or to evaluate the consequences of his conduct.” Id. at 2949. Presented with the special verdict questions, and “in the absence of appropriate jury instructions, a reasonable juror could well have believed that there was no vehicle for expressing the view that Penry did not deserve to be sentenced to death based upon his mitigating evidence.” Id. at 2950.

This case presents the same dilemma. The jury found that Graham's youth did not make his crime less deliberate or his future threat to society less probable. But a reasonable juror could also have determined, if given the opportunity, that Graham did not deserve a death sentence because, at the age of 17, he was less able to control his impulses or evaluate the consequences of his conduct, or because of other relevant reasons. The majority seems to overlook the fact that “there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant.” Id. at 2951. In this case, as in Penry, “in the absence of instructions informing the jury that it could consider and give effect to the mitigating evidence of [Graham's youth] by declining to impose the death penalty, ... the jury was not provided with a vehicle for expressing its ‘reasoned moral response’ to that evidence in rendering its sentencing decision.” Id. at 2952. Under Penry, the jury should have been allowed to weigh that factor in deciding whether Graham deserved to be sentenced to death.

The majority of this en banc court insists upon crafting its own exclusion and following Penry only where there is a “major mitigating thrust of the evidence ... substantially beyond the scope of all the special issues.” It even declares that youth is mitigating only with respect to conduct attributable to age, and that the mitigating factor of youth at the time of the offense may be adequately taken into account by a Texas jury in answering the issue of future dangerousness. But the Supreme Court requires the sentencer, before assessing the death penalty, to consider all mitigating evidence, not only mitigating factors that contributed to particular criminal conduct. And the Court does not weigh the “thrust” of the mitigating evidence as between special issues and the decision to sentence to death.

Youth, like mental retardation or crippling circumstances in the defendant's background, may be related to deliberateness or to future dangerousness, but those facts of a defendant's life may also affect an entirely different “thrust” and decision. They may reach the much broader ultimate question: Is death the appropriate response to this human being, considering his moral culpability as a person? Graham's jury was not told that it could consider evidence in this light or that it could give mitigating effect to it in imposing sentence.

The majority opinion is heavy with scholarship and fine legal argument. It undoubtedly alleviates problems in reviewing the cases of Texas prisoners on death row. I fully appreciate the problems. The Texas Court of Criminal Appeals is struggling with them too. See Black v. State, 816 S.W.2d 350 (Tex.Crim.App.1991); Ex parte Harvey Earvin, 816 S.W.2d 379 (Tex.Crim.App.1991); Lackey v. State, 819 S.W.2d 111 (Tex.Crim.App.1991). This does not justify the failure to follow the dictate of the Supreme Court. I would follow that dictate unless the Court, which alone has the authority, chooses to modify our instructions.

PATRICK E. HIGGINBOTHAM, Circuit Judge, dissenting:

The ultimate question in this case is whether the mitigating value of Graham's youth and family circumstances-age seventeen at the time of the offense-is fully expressed by the jury in its answer to two questions: did Graham act deliberately and does Graham present a future danger. The majority opinion, after first concluding that any deficiency in the two questions must be substantial, holds that the answer is yes. I am unpersuaded that the jury's assessment of Graham's moral culpability is fully, or substantially as the majority has it, exhausted by concluding that he acted deliberately and presents a future danger. A jury's reasoned response could be that although Graham acted deliberately, and is likely to do so again, when Graham's tender years and family circumstances are entered in the account of moral culpability, a death sentence is not warranted.

It was true before Penry that “[t]he state may not by statute preclude the sentencer from considering any ... relevant mitigating evidence.” FN1 That did not necessarily mean, however, that the state could not limit the effects of mitigation. There was a powerful argument that, given Jurek, the Eighth Amendment allowed the state to limit the effects a sentencer might give to mitigating evidence. Justice Scalia made the argument in Penry, but his was the dissenting view.

FN1. Eddings v. Oklahoma, 455 U.S. 104, 113-115, 102 S.Ct. 869, 876-877, 71 L.Ed.2d 1 (1982). I intend no criticism of the majority's able struggle, but I am not persuaded that we have the freedom to define again the jury's sentencing role in Texas. I say “again” because two decisions of the Supreme Court control this case. The first is that the state, without fettering effect, must give the jury the means for expressing its reasoned moral response.FN2 The second decides that Graham's youth and family circumstances are relevant to the core decision for the jury-his moral culpability.FN3

FN2. Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). FN3. Stanford v. Kentucky, 492 U.S. 361, 109 S.Ct. 2969, 2978, 106 L.Ed.2d 306 (1989); see also Thompson v. Oklahoma, 487 U.S. 815, 108 S.Ct. 2687, 2698, 101 L.Ed.2d 702 (1988).

The state may insist upon the jury's “reasoned” moral decision, but the contribution of Graham's youth to his moral culpability, beyond the issues of deliberateness and future dangerousness, has no intrinsic measure or objective weight. There is a point at which we must accept that the moral culpability of a particular person for a particular crime is what the jury says that it is. With all deference, this quintessential blackbox decision yields to no logical or explainable divison whether youth has some residual “mitigating force after the Texas questions have been answered.” It is not a “legal” question at all, but is rather like asking judges not to reason but to look to the sky, presumably, and react. Such discrete Rorschach-like inquiries do not produce or draw upon normative rules. That we are asked to perform such tasks is a powerful signal that something is wrong. The wrong is not difficult to locate. As Justice Harlan put it in McGautha:

Those who have come to grips with the hard task of actually attempting to draft means of channeling capital sentencing discretion have confirmed the lesson taught by the history recounted above. To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty and to express these characteristics in language which can fairly be understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability (emphasis supplied). FN4. McGautha v. California, 402 U.S. 183, 204, 91 S.Ct. 1454, 1466, 28 L.Ed.2d 711 (1971). Furman repudiated McGautha, but Justice Harlan's wisdom is validated with each encounter of dead ends in the resulting conceptual puzzle. And a puzzle it is.

For example, the Supreme Court in Cabana v. Bullock FN5 upheld the death sentence while observing that “the jury may well have sentenced Bullock to death despite concluding that he had neither killed nor intended to kill.” FN6 This despite the fact that in Enmund v. Florida FN7 the court held that the Eighth Amendment forbids the death penalty for “one ... who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing takes place, or that lethal force will be employed.” FN8 I would have supposed that whether an accused intended to kill lies at the heart of moral culpability; that the finding of intent to kill would be left with the sentencer. Stated another way, if a state's procedures must allow a defendant's mitigating evidence to find expression in its verdict it is puzzling to allow a state appellate court to supply the critical finding of intent to kill, a finding missing from the jury's verdict. It is a long road from McGautha to Penry, but the resulting jurisprudence is perverse in that it insists on a reasoned moral response of the jury, an assignment we jurists have failed.

FN5. 474 U.S. 376, 106 S.Ct. 689, 88 L.Ed.2d 704 (1986). FN6. 474 U.S. at 384, 106 S.Ct. at 696. FN7. 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982). FN8. 458 U.S. at 797, 102 S.Ct. at 3376.

The solution must be left to the Supreme Court, at least in cases as this one where we are left no meaningful latitude. In any event, this case is already so postmarked by the predictable scattering of judges required to react, not reason.