June 22, 2000
Eyewitnesses Under Attack
By ASA HUTCHINSON
ASHINGTON -- Opponents of the death penalty are focusing on
Texas as they try to
shift the debate about
capital punishment
from whether it is moral and effective to whether the trial-by-jury foundation of the American
judicial system itself is flawed.
In the case of the convicted murderer Gary Graham, which has riveted
national attention, presidential politics was added to the stakes as opponents argued that Gov. George W.
Bush should exert influence for a
grant of clemency.
Behind the pressure on Mr. Bush is a dangerous
attack on the foundations of our judicial system: on the reliability of eyewitness testimony and the weight it
should be given, and on juries' decisions on the credibility of witnesses.
If the death penalty activists succeed in discrediting eyewitness testimony, will witnesses still find it worth
reliving crimes and possibly angering
defendants' allies by telling their
stories? Will women come forward
when they have been assaulted?
America must not retreat from the
age-old notion that 12 jurors can look a
witness in the eye and, after hearing
contradictory evidence, appropriately
weigh his or her credibility.
In 1981, Bernadine Skillern witnessed the murder of Bobby Lambert,
twice seeing the killer's face directly.
She has never wavered from her testimony that it was Gary Graham. No
alibi witnesses were offered until seven years after the crime, and the
courts determined their testimony
was not credible. If it had been offered
at the time of the trial, the state could
have introduced evidence of robberies
and assaults that Mr. Graham committed during a six-day crime spree at
the time of the murder.
The Graham case has been reviewed by state and federal courts for
16 years.
Claims ranging from ineffective counsel to factual innocence have
all been rejected.
Those who attack the present system cite a recent national study that
found 68 percent of death penalty
cases are overturned on appeal. These
reversals are largely on procedural
technicalities; they do not indicate the
factual innocence of the accused. The
same study did not find any innocent
person ever being executed.
The states and federal government
should allocate more money for DNA
testing and experts to assure every
protection for the accused. But the
attack on our justice system by those
philosophically opposed to the death
penalty should be balanced by a recognition that our system of trial by jury
and judicial review is just.
Asa Hutchinson is a Republican representative from Arkansas and a former federal prosecutor.
