The death row lawyer from Wolverhampton

The Guardian, December 11 1993

The Pope does not often speak up for convicted killers. But earlier this year, he joined Vaclav Havel, Bishop Desmond Tutu, Jesse Jackson, Harry Belafonte, Danny Glover, Kenny Rogers, every Catholic bishop in the state of Texas, the National Association for the Advancement of Coloured People and a world-wide campaign by Amnesty International in pleading for the life of a young black man on Death Row in Texas.

Between them, this small army of celebrities succeeded in snatching Gary Graham back from the hands of the executioner with only 12 hours to spare. It was a case which was reported around the world and which raised legal issues which are still reverberating through the American courts. And behind it all, working round the clock in a small office in downtown Houston, was a mild-mannered English lawyer named Tony Haughton, aged 32, born and raised in Wolverhampton.

Haughton’s journey from the scruffy suburbs of Ashmore Park to the frontline of the struggle against the most energetic executioner in the United States is a chapter of accidents, but his determination to stand and fight is a mark of the injustice which he has encountered there. “I get asked why I represent people like this, as if they are not quite human, but when you actually meet them and talk to them, you see that they are just people. I know it sounds trite but most people I meet on Death Row are very polite and very sorry for what they’ve done and I think to myself ‘There but for the grace of God…”

As a child, Haughton skirted the edge of juvenile delinquency, hanging around on street corners with the ‘Ashmore Park Mafia’, the only black boy in his class, getting into fights and raising hell at Wanderers’ matches and being saved from arrest in a famous pub brawl only because the friends who were holding his arms pulled harder than the police who were pulling his feet. Old friends from those days are unemployed or in jail. He escaped because he was bright and because, when he was 18, he followed his Jamaican father to Texas.

He applied for college in Houston, sailed through his entrance test, decided to become a lawyer because the working hours were better than a doctor’s, sailed through law school in Chicago, worked as a public defender in Washington DC and was all set for a smooth career in criminal law when he was invited to visit the offices of the Texas Resource Centre, a group of Houston lawyers on a shoe-string budget whose whole life is spent fighting capital cases.

Haughton had no intention of getting involved. The hours were too long and the stress was too obvious, the clients were more or less lost causes and, from a lawyer’s point of view, the work was a mess since most of it involved sorting out the mistakes of other lawyers who had handled the cases years ago. Still, his wife came from Houston and he was interested to see what the work was like and, before he knew it, he had agreed to put in some time there during his sabbatical. Two and a half years later, he is still there. He has acted for 25 men on Death Row, seen his marriage collapse under the strain and, more recently, attracted the attention of the Ku Klux Klan and an anonymous correspondent who hacked the headlines out of several magazines to convey his threatening message. But he is addicted to the work.

His first client was the most traumatic. He was a skinny young white man with blond hair and nothing to recommend him. He and his girlfriend had stuffed themselves full of drugs and then gone out to steal more drugs from two dealers, who had ended up being beaten and shot to death at their hands. He was due to die in only 19 days.

Haughton was sure he could not work up an effective defence in such a short time and horrified at the burden on him. He begged and pleaded with a more experienced lawyer friend who agreed to go back to the judge for him and ask for a 60-day delay. The judge listened, said he’d think about it and wasted a week before turning them down. Haughton’s lawyer friend threw his hands in the air and backed out. Haughton then had only 12 days to save his client.

As a working rule, the Resource Centre had advised him always to explore two simple lines of attack: look at the crime and look at the client. So far as this crime was concerned, Haughton could see little room for manoeuvure. Two days into his original trial, the man had undergone a religious conversion and told his lawyer he wanted to confess everything, which he had duly done in excruciating detail. So, Haughton decided to look at his client and went to visit him on Death Row, a low-lying red-brick block on a plateau outside Huntsville, surrounded by high walls and razor wire with guard towers at each corner.

In the visiting area, divided by reinforced glass, Haughton’ s client made him pray with him and then, under gentle questioning, he slowly revealed his history as a victim of sexual and physical abuse which was so horrifying that by the time Haughton picked up his files and drove back to Houston, he felt sure he could save this man. This was the most powerful mitigation; if it had been presented at the original trial, it was highly unlikely that the court would have sentenced him to death.

Haughton now embarked on the most delicate investigation. His client came from a reasonably comfortable family who lived in a nice house with a stream and an acre of land in the foothills of the Pennsylvania mountains. He flew up to see them – an unknown Englishman with black skin and owlish glasses – and then took them quietly aside one by one and invited them to disclose the most secret and painful details of their family’s twisted history.

It took a while but gradually the truth emerged: an elder brother and sister who had systematically raped Haughton’s client as a child; the two occasions when his collar bone was broken before he was three years old, supposedly by falling out of his crib; the unexplained head injuries; his graduation to drugs by the time he was eleven and to raping his younger sisters by the time he was 14; his father’s efforts to have him consigned to a mental institution when he was 16. Haughton unearthed old school and medical records to confirm the stories. None of this had been uncovered by his original defence team, whose investigator had been content to pray in his cell and ask the Lord to defend his client.

Back in Houston, Haughton worked around the clock to produce 100 pages of pleadings which he submitted to the trial judge, who took only an hour to throw them back at him. Haughton was desperate with frustration, sure that the judge had not even begun to consider his arguments. He started moving up the long ladder of appeals, which stretched through the Texas Court of Criminal Appeals, to the district federal court in Houston, the regional federal court in New Orleans and finally up to the Supreme Court in Washington DC. Within 33 hours, Haughton had exhausted the entire system, and not one judge had been moved by his100-page plea. Haughton seriously doubted whether any of them had even read it, and all he had to show for his work was a 30-day delay from the Supreme Court.

His client was now one step away from the death chamber and, although he was resigned to his fate, he did not want to die. He had become a minister and was working as a priest with other prisoners on Death Row. For the first time in his life, he had something to live for. Haughton kept digging for new arguments: he found one of the jurors who said the jury had recommended the death penalty without understanding the relevant law; he found a prison guard who admitted he had pressured the man into making his original confession. But none of this was going to save his life.

Then, towards the end of the 30 days, he stumbled across an unexpected nugget. Talking to some other lawyers, he wondered out loud why the trial judge had been so hostile to his client. He discovered that the judge’s mother had been murdered some years earlier and that the judge had wanted to watch the execution of the killer, who had looked uncannily like Haughton’s client. Haughton stayed up all that night drafting a motion to ‘recuse’ the judge – to remove him from the case. In court the next day, the judge admitted to the facts and went on to disclose that he had not read the 100 pages of pleadings in detail, but he denied that any of this had made any difference to his decisions. Haughton reminded the judge that he should stand down if there was even the appearance of impropriety. The judge refused. The sentence was confirmed. It was over.

Haughton went back to Death Row to see his client one last time. In the now familiar routine, they sat together and prayed. No one from his family had come to visit him. As they strapped him to the re-inforced stretcher and prepared to flood his veins with potassium chloride, he apologised for his crime and forgave his own killers. Haughton could hardly believe the man’s strength.

“For me, it was devastating. I was out for days, trying to deal with it. I was used to winning cases, I had never lost a jury trial, I had done well in front of judges and I felt like this man was executed with the minimum of due process. I would expect someone on a traffic ticket to get more due process. I was just shocked at the system’s complete failure to listen to evidence. And what had this society gained from the death of this young man? I was appalled. But after a while, I got angry and I think that’s what has kept me doing what I do.”

Death penalty work is no route to fame and fortune. The Resource Centre limps along on a mixture of federal aid and private donations. Texas has executed more more men than any other state – 60 in the last ten years – and yet it is one of eight states that still refuses to hire lawyers for Death Row convicts, no matter how penniless they are. Haughton is earning less now than he was in his first year after law school but in a way, the celebrated case of Gary Graham has been his reward.

Graham had been sentenced to die for the murder of a white confidence trickster named Bobby Lambert who was shot to death one night in May 1981 as he walked across the car park of a Safeway supermarket in Houston. Graham was arrested a week later at the end of a 12-day orgy of armed robberies, which he admitted. He was charged with the Safeway murder when one eye-witness picked him out of an identification parade. On the strength of that one witness, he was convicted and sentenced to die. He always denied the crime.

By the time that Haughton met him, the Resource Centre seemed to have pushed his case to the brink of victory. Graham was only 17 at the time of the Safeway killing and they were arguing strongly that it was unconstitutional to execute a juvenile. At the end of a marathon series of hearings, the Texas courts agreed. The judges then destroyed the victory by announcing that they would not backdate their new view: Graham must still die, regardless of his age. In January of this year, with his death set for April 30, Tony Haughton agreed to try one more angle – to go back to Graham’s protestations of innocence and see what he could find.

It took nearly four months of door-stepping and dogged pursuit but at the end of it, he had turned the entire case around. He found four people who swore that Graham had been with them throughout the evening of the Safeway killing and, when he subjected them to lie-detector tests, they all passed, even though he deliberately arranged for them to be tested by former Houston policemen who were liable to be hostile to them. He also found five witnesses to the shooting, each one of whom said that Graham could not have been the killer. At 5’9″, he was too tall and they all agreed that the killer was no more than 5’6″.

None of this information had been discovered or presented at trial by Graham’s original lawyer, who had been paid a pittance from public funds to represent him. The lawyer had hired an investigator, one Mervyn West, who now revealed that he had understood from the lawyer that Gary Graham was guilty. “Since we both assumed he was guilty, I decided not to waste time trying to substantiate his alibi.”

He also discovered that the police had ‘virtually guaranteed’ that their one witness would implicate Graham. Immediately after the shooting, she had given them a description of the killer. They had then shown her half a dozen mug shots, only one of which roughly matched her words. It was Graham. They had then shown her an ID parade of six men, only one of whom had been in the photographs. Graham again.

Along the way, Haughton dug into Graham’s own history and found another horrifying story. He had grown up on a battle ground between an alcoholic father, who used to beat him with a bullwhip and who tried to kill him with a shotgun, and a psychotic mother, who would dump him in the street one night, take him wandering through the ghetto on another, spend the day riding the buses with him or, on occasion, walking hand in hand with him in the street while she was dressed only in her bra. As his parents were shuffled in and out of institutions, he was passed among his relatives, emerging in his early teens as a vicious delinquent with an addiction to opiate cough syrup.

None of this digging had been easy. The District Attorney had refused to hand over the case file, even though Haughton was entitled to have it. He had had to track down one witness who surfaced on a radio phone-in and was then accidentally cut off before he could finish his story or give his name and address. One witness had died, but his widow recalled his saying that the wrong man had been convicted. Others were nervous. One insisted on meeting him at six in the morning. Another was being sworn at by her husband as she tried to tell her story. But the final evidence was compelling. Haughton was no longer tackling technicalities: Gary Graham was innocent.

But the Texas courts were not interested. They said that all new evidence in a criminal appeal had to be lodged within 30 days of the original trial. Haugthon was just too late, they said. It was a familiar line and, in an earlier Texas case, lawyers had complained to the US Supreme Court who had brushed them aside with the suggestion that if a condemned man really was innocent, he wold have to ask the Texas Board of Pardons and Parole to have mercy on him and let him go. Haughton knew that in 16 years, the Board had never let anyone go. They would not even hold hearings to listen to arguments.

By now the issue was attracting publicity, and numerous celebrities were backing Gary Graham. The Governor of Texas stepped in to delay the execution. Ironically for Haughton, the case he had made was now so strong that he lost his role in it. The Resource Centre pulled in more senior lawyers including a retired judge to push their arguments through the federal courts. They launched a two-pronged attack: appealing through the criminal courts to force them to consider the new evidence; and suing the Texas Board of Pardons and Parole through the civil courts to try and force them to hold a full hearing for the first time in 16 years. No one had ever done that before, and the case has now become an elaborate legal set-piece and a temporary barricade between Gary Graham and the death chamber.

Haughton and other Texas Death Row lawyers see some dirty play. In Clarence Brandley’s case, judges were caught plotting with the prosecution to have an innocent black man sentenced to death, while two white men who had confessed their guilt, were never even arrested. In Kerry Cook’s case, the prosecutor killed himself after he was caught lying about his central witness, and an item of clothing which was supposed to have been stolen by the murderer was found sealed in a prosecution evidence bag 17 years after the crime.

Haughton is already working on new cases. “The battle is keeping someone alive against really dishonest forces that badly want him dead. I mean, it’s no fun to have judges deny you without even looking at what you are saying. But this is Texas. 80% of people here support the death penalty. The press here is very conservative and it whips up this Hang’em High mentality. But in a strange way, it helps to be a foreigner. Somehow, I’m less threatening to everyone.”

There are exceptions. At the height of the Graham case, Haughton received a couple of letters from the Ku Klux Klan. One was a warning to Gary Graham: “We say ‘win your freedom’, so we can get our hands on you! Remember when we do that, you were warned. Take our advice, stay in your nice, safe jail cell!” The second was directed to Tony Haughton and its message was simpler. “Niggers beware,” it said.

Haughton shrugs and says he never really encountered racism until he came to the United States. During the Graham campaign, he took the wife of country singer Kenny Rogers to a posh Houston restaurant. The doorman wouldn’t let him in. “He said it was because I was wearing blue jeans. I pointed out to him that there was a woman in the line who was wearing blue jeans and he was letting her in. But she was white. Well, I couldn’t go in. I should have sued them, but what could I prove?”

UPDATE: Lawyers continued to fight for Gary Graham’s life until June 22 2000 when the US Supreme Court voted by a margin of 5 to 4 to allow him to be killed. Less than four hours later, his life was ended.