AUGUST 27, 1992:
THE LINEUP
EXCEPT FOR MY MOM, I’d had little communication with my family. I trusted that my sons’ mothers knew me well enough to defend me to the boys, and I would learn much later that that had been the case. I was focused on making sure the truth got told so that I could go home. I thought that would be soon. Carter had assured me he’d told the truth to the grand jury and that he thought that would be enough for the state to dismiss the charges and let me go home. I waited and waited for the doors to open, for my name to be called and for someone to tell me to pack up my belongings.
The day after our grand jury testimonies, Carter was moved to another jail. With him gone, I was moved to a different cell at Caldwell. My new cellmate, Angel, had been there for a while and oozed practical jailhouse savvy. Angel was white, with a wrinkled, almost leathery face. His hair was cropped close to his scalp. He was sitting on the top bunk, reading a book, when I arrived. He didn’t acknowledge me until I made the misstep of placing what little property I had on the bunk beneath him.
“I sleep on the bottom bunk, son,” Angel said. “I just get up here to read.” He shot me a disarming smile. “An old man like me can’t be jumping down and up here every night.”
I smiled back at him. It didn’t take long for Angel to open up about the ins and outs of life at Caldwell.
If Angel didn’t tell me everything he knew, it must have been close. I learned the tendencies of the various jailers. I listened closely as he described his personal survival strategy. It might have been titled “Getting What You Want.” I liked him for his directness, assuming that that was what I was getting. I had just begun to feel comfortable with Angel when his tone shifted from jovial to serious.
“Say, Graves, you didn’t do this crime with that dude, did you?”
He was smooth. He wanted me to confide in him. I wanted nothing more than to prove my innocence.
But Angel was facing charges of racketeering; he was looking at sixty years or more. He was hoping to cut a deal with the DA, and if he got something out of me, that would be his chance. So Angel started sharing information with me about how things were done at Burleson County Jail. Helpful information. He opened up about his family, and before I knew it, we were talking like old friends. I don’t think he’d counted on me being innocent, though.
“Nah, I didn’t do it,” I replied. “The guy doesn’t really know me. For some reason, he just said my name.”
“That’s good to hear, son. You don’t seem like that kind of guy, the kind that would go in and kill innocent children.”
I told him I had children of my own. He told me he had grandchildren.
“You know what you ought to do, Graves?” he asked, turning serious. “You should write an affidavit with everything you did, starting the day before the crime. You ought to show it to the prosecutor.”
My eyes lit up. Angel knew his way around the system. It seemed like a good idea.
I gave the affidavit my full attention. Angel made it easy for me, maybe too easy, as all he had to do was reach up to the top bunk to get pen and paper for me to start writing. I tried hard to remember everything I had done in the hours before, during, and after the time of the crime. While I had already given all this information to the Rangers and the grand jury, they hadn’t seemed to listen to what I was saying. Maybe if I wrote it down and sent it to the DA, it would have more impact and finally be accepted as the truth.
After about thirty minutes of thinking and writing, I was satisfied that I had included a good amount of detail. Later I learned that the minutia is often what separates life from death in a capital case, and I had barely scratched the surface. I knew nothing about trace evidence, hair and fiber analysis, or the high value of a one-second discrepancy in a crime-scene timeline. But I also didn’t know that my case would barely be investigated, once Carter had incriminated me. So, unaware of the recklessness of what I was doing, I asked to see the head jailer, Officer Burkhalter, who was almost cartoonish in his appearance.
“What’s up, Graves?” he said.
“Sir, I just wrote out an affidavit,” I said. “I’m trying to get it to the prosecutor.”
“All right,” he said flatly. “Give it to me and I’ll get it to him today.”
Thinking I had just possibly saved myself, I later learned this would turn out to be one of so very many disappointments. I never heard about the affidavit again.
Not long after, some Texas Rangers arrived at my cell door. They were there to conduct a lineup, they said. I still didn’t have an attorney, and I still didn’t think I needed one. From what little I knew about attorneys in criminal cases, they usually suggested that you take a plea deal no matter your innocence (which I was not about to do) and wanted a bunch of money up front (which I did not have). Granted, this was all learned conjecture from street talk around town growing up, but it contributed to my uninterest in legal representation. Despite or perhaps because of all this, I agreed to the lineup. In my naïveté, I thought it might work in my favor.
I didn’t know much about lineups at the time. As it turned out, on the night of the Somerville murders, a witness had seen two men buying a can of gasoline at a local quick shop. Law enforcement was seeking a positive identification. I immediately sensed that something was off. I was astonished to see that the others in the lineup were merely boys. Most were between fifteen and seventeen years old and looked like the kids I used to play baseball with in high school. I was in my late twenties. It wasn’t hard to see that I would stand out.
Each person in a lineup takes his place under a number. There were seven us, and they’d saved spot 4, the middle spot, just for me. Worse, I had to clink and clank my way to the designated spot in prison chains. A Ranger finally removed my handcuffs, but not before I’d made my first impression on the witness behind the glass. I’d wanted to believe that this was an opportunity for me to establish my innocence. Once in the actual lineup, however, it became clear that this was an effort to identify me, not an unbiased procedure meant to confirm the identity of someone the witness may have seen before.
I didn’t believe there wasn’t much else I could do, so I complied with their demands. The instructions were simple: Turn your head to the left. Turn to the right. Look straight ahead.
“All right, guys,” I heard a Ranger say. “You can all go. Except for you, Graves.”
I let out an audible puff of exasperation. It felt no different than when the Ranger had delivered the bad news about the lie-detector test a week prior. Still, some part of me remained hopeful. I knew I wasn’t at that gas station. I knew it wasn’t me.
“Graves, I have some bad news for you,” one of the Rangers said. “That person behind the glass just picked you out of the lineup.”
The sense of vertigo I’d previously experienced returned with a vengeance. How is this happening? My shock was palpable. I was also scared and angry. After having cooperated with the Rangers 110 percent, they’d put me in there as the only adult among a bunch of teenagers. I’d arrived in jail clothing while the others had on regular street clothes. There was one spot left open for me, position number 4, right in the center, which I would later learn is the “guilty” spot, the position most often chosen by witnesses. As I’d taken my place, still in handcuffs, I didn’t know that the witness was already behind the one-way mirror, watching me the whole time. The resentment that had been building inside me since my arrest erupted in that moment.
“What? C’mon, man!” I exclaimed. “I’ve been cooperating with you all this whole time. Shit, man! I want a lawyer. I’m tired of this.”
“Graves, you want a lawyer?” a Ranger responded, as if he’d caught only a few of my words.
Every time I participated in one of the state’s games, I’d come up empty-handed in proving my innocence. “Yeah, I want a lawyer!” I shouted. “Not one of you will believe anything I have to say!”
The Rangers didn’t seem to care about my fate, but
they did hear me when I spoke this phrase.
“Graves says he wants a lawyer!” one of them yelled.
“Well, all right then,” another replied. “Take him back to jail.” It was as if I had finally said the magic words, and in legal parlance, that’s exactly what I had done. I didn’t know it then, but as soon as an accused in a criminal case asks for a lawyer, the police may no longer legally question him or her alone. It doesn’t mean they always follow the rules, but it did ring clear that they all at least knew the rules, and I had just invoked the lodestar. I would spend plenty of time while on death row reading about the power of the Sixth Amendment to the Constitution, the one that guarantees the criminally accused the right to be represented at trial. There was a whole lot of “case law” defining what exactly that meant in terms of when my rights were invoked.
Up to that point, I’d believed that the system would sort itself out on my behalf. But it was becoming increasingly obvious that the Rangers weren’t interested in the truth. They just wanted to find some way, any way, to get me to say that I was guilty. A confession would be the last nail in my coffin. With that, they would be able to get their conviction and move on.
When it finally dawned on me that the police were trying to build a case against me despite my innocence, I was furious. I thought about my mom and her emotional state. I thought about my children. I was also more determined than ever to prove them wrong. I wasn’t about to let them railroad me. I was going to fight for my life.
Growing up in the ’70s in Texas exposed young black men like me to casual racism at an early age, and now I had to wonder if I was experiencing the institutional version of it. I remembered being slapped in the face as a kid by my white teacher in the fifth grade because I was laughing at a classmate. Black children knew without being told that white people and authority figures saw us as inferior. I found that not to be universally true when I started having white friends, and my own judgment, but it was a fact of life for nearly everyone in Texas. Generally, up North, you handle race relations differently. You see, you’ll pretend whites don’t think of blacks as inferior. But they do, just like everywhere else. So you end up keeping it buried under the surface, like a splinter. Now down South, where I’m from, people are more open about their biases. That clear discrimination doesn’t feel good, but it does have one advantage. Although we know we’ll never be equals in one another’s minds, it’s the honesty that allows us to be real friends despite the imbalance in our relationships. When it came to the criminal justice system, I believed the system would work for everyone regardless of their race, something I attribute to my government teacher in eighth grade. She taught me to believe that America’s criminal justice system was the best in the world. I held on to that belief, and it cost me dearly in these early stages of my case.
The continuing mind games were cruel, but somehow their tactics hardened my resolve. I wasn’t going to lie on myself or anyone else, no matter what anyone promised me. I decided then that even if I had to die for the truth, I’d do it. So many people had come before me and pled out to crimes they hadn’t committed out of fear in the face of long prison terms, due to lack of resources, and because of a lack of support from family. I didn’t care about any of that. I felt determined to stand up for what was right, even if I had to lose my life doing it. I was fired up and ready to take on the criminal justice system, against all the odds. That sense of purpose was invigorating.
I wasn’t, at the time, aware of the spiral I had entered. I was “the accused,” and this tilt of bias against me would color my every step through the legal system. Starting with my arrest, through an interrogation process engineered to get me to confess, to the lie-detector test I’d been told I’d failed, to the lineup designed to prejudice the viewer against me, it was a downhill slide from the get-go. Multiple studies have shown eyewitness testimony to be the most controversial and flawed of all evidence offered at criminal trials. Now I unfortunately had a much better understanding of why.
So, it was time to get a lawyer.
I racked my brain for a thought on who might help me. My former boss, Roy Allen, was the first name that came to mind. Roy’s family owned a machine shop where I’d once worked, and over time he had become a close friend. We started out on the company softball team together; I was at third base and he was the coach. The thought of Roy gave me comfort. I summoned my resolve, understanding that things might finally start going my way if I could get a lawyer. I returned to my cell from the lineup at the Burleson County Courthouse and asked to use the phone, preparing to make a collect call. A jailer passed a bruised, off-white machine into my cell. It had a long extension cord that allowed the jailers to pass it from cell to cell for outgoing calls; no incoming calls were permitted. I dialed the familiar numbers of home, knowing I was costing my family a fortune we didn’t have, knowing no one would ever refuse my calls.
“Hey, Mom?”
“Hey!” she exclaimed, happy to hear my voice. “What’s up, Son?” I had called my mom every day since my arrest, and she’d always been a champion at lifting my spirits.
“I need you to call Roy Allen,” I said. “Tell him to get me a lawyer.”
“A lawyer?” My mom couldn’t seem to believe what I was saying. She had thought, like me, that this whole ordeal would be resolved within a few days. I could sense the worry in her voice.
“Yeah,” I responded. “These damn people don’t want the truth. They’re playing games.” I told her about the lineup.
“They picked you out of a lineup for what?” she asked, obviously confused.
I told her about the gas can and how a woman had claimed she saw me that night.
“How the hell can I be in two places at once?” I asked her. “These folks are full of shit. I want a lawyer.”
She assured me that she would call Roy in the morning.
As it turned out, I wasn’t the only one with news about the case. “Listen, Son,” she said. “The police came down here and took Chee Chee’s car somewhere and searched it. They said they were looking for a knife.”
I wondered aloud why they would bother my aunt. Investigators had told my mom that they knew I was driving Chee Chee’s car. Then it became clear: the affidavit I wrote on Angel’s recommendation had come back to bite me. I was relieved, at least, that the prosecutor had actually received what I wrote. My mom and I went back and forth for a minute about the car. It wasn’t long before I had to go. Time on the phone was precious, and I wasn’t the only inmate at Caldwell that needed to call home.
“I’ll call you tomorrow to hear what Roy has to say,” I told my mom.
“Keep your head up, Son!” she replied. “Don’t you worry. The truth will come out. Just keep saying your prayers.” She told me that she loved me. But she couldn’t hide her worry.
My cell had never felt colder or emptier. Angel lay on the bottom bunk with a book in his hands, but I was alone in my frustration. My body felt weak. I couldn’t eat, and homesickness consumed me. For the first time, I let myself consider that they might keep me there forever.
I had done six months in prison back in 1987 for selling forty dollars’ worth of marijuana to an undercover narcotics officer. I’d voluntarily turned myself in to the police after hearing they’d come to my mom’s house looking for me. I’d taken responsibility because I’d knowingly put myself in that position. But I also knew I’d never been in that kind of trouble before; I figured I’d get a fine or maybe a few months of probation. Instead, I was overcharged and ended up pleading out to a marijuana and cocaine charge to get ten years “shock” probation: 180 days in jail and a criminal record. I was twenty-two then. Of no particular significance to me at the time, the DA on my case was Charles Sebesta. Four years later, this same DA was accusing me of another crime. This time the situation was far different. I was older and more mature. My boys were the focus of my life. The charge was capital murder, which in Texas carries a sentence of death. And I was innocent.
&nbs
p; AUGUST 26, 1992:
A FAMILIAR FACE IN COUNTY JAIL
AFTER THE PREVIOUS DAY’S EVENTS, I wasn’t interested in breakfast when it came. I had lost a few pounds since my arrest, due to both anxiety and the horrible fare. The food was bland—cold toast and two overcooked eggs. I offered it to Angel.
“Graves, you need to eat something.”
“Angel, I’m cool,” I assured him. “I just don’t have an appetite.”
Maybe I would eat at lunch, which at Caldwell consisted of a bologna sandwich and a few chips. I told Angel I was burned out. He nodded in understanding. Somewhere along the line he must have adapted to the jail food. He ate both of our meals.
One of the jailers came soon after with welcome news.
“It’s recreation time, gentlemen.” It was Steve Jennings, one of the few officers in that place who treated inmates with respect. “Get your clothes on. I’ll be back in a few minutes to start pulling you guys out.” It was the first such opportunity at Caldwell for a while now. Angel and I rushed to get dressed. We wore jail suits and tennis shoes. A few minutes later, Jennings returned to pull us out. He was workmanlike, clearing cell after cell until each was emptied. Angel and I were the last to go.
The severity of the Texas summer hadn’t let up. I stepped outside to waves of September heat that hit my body with force.
There wasn’t much to do during recreational time. The rec area consisted of a small patch of half-living grass, nothing like the beautiful baseball field I daydreamed about. Before being framed, I was mostly interested in two things, apart from my sons: baseball and women. I could always close my eyes and disappear into memories of a Texas diamond with perfectly mowed grass and carefully raked dirt, or an old girlfriend who comforted me like heaven and had the soft skin of angels. But that day, the oppressive heat stifled my imagination, and it took all my energy just to focus my eyes around the yard. A surprisingly casual and unimposing chain-link fence encircled the outdoor space, which is why it was hard for Caldwell to organize prison rec time: they first had to find a regular police officer to stand guard on the other side of the fence. Getting an officer to come and stand out there in the Texas weather was a task in and of itself, and it often delayed our emergence into daylight.
Infinite Hope Page 5