Texas reprieve shows up penal flaws: Gary Graham's case highlights the dangers of a state deeply attached to the death penalty

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WASHINGTON - For at least 30 more days, Gary Graham will live. But his stay of execution, granted on technical grounds by the Texas appeals court 18 hours before he was due to die by lethal injection in Huntsville prison on Thursday, has resurrected a host of troubling questions about capital punishment in the US - and in his home state in particular, writes Rupert Cornwell.

Graham is black. He committed his alleged crime in 1981 at the age of 17. He was convicted of fatally shooting a white man in the car park of a Houston supermarket, on the identification of one witness 40 feet away. Eleven witnesses have since sworn he was not the killer. His claim of innocence is backed by Texas' 17 Catholic bishops as well as show business and black personalities. But to no avail. When the stay came on Wednesday, it was unrelated to the fact Graham might not be guilty. It merely allows time for the Texas supreme court to rule in a different capital case, where defence argues that the age of their client, 19 at the time of his crime, should be a mitigating factor.

Gary Graham's case exposed what critics see as a deep flaw in the penal system in a state addicted to the death penalty - the lack of a mechanism to present new evidence that a miscarriage of justice may have occurred.

Under Texas law, such evidence must be submitted within 30 days of the conviction. In granting an earlier one-month stay, the Texas Governor, Ann Richards, agreed Graham's case contained 'significant questions of innocence'. But even she was constitutionally powerless to commute the sentence. In this week's appeals court decision, a single judge on the panel based his vote for a further stay on the possibility that Graham might be innocent. Nowhere, though, civil liberties and minorities' lawyers argue, is such a provision more urgently required than in Texas.

Nearly 2,700 people are on death row across the US, 372 of them in Texas. Since 1982, the state has executed 59 people, and apart from Graham, has 10 more scheduled between now and 7 September. One person is executed roughly every 10 days in the US. That pace is likely to quicken now that the tortuous appeals process, which can last a decade or more, is running out for those sentenced after a 1977 Supreme Court judgment that the death penalty was not 'cruel and unusual' punishment.

The plight of Graham illustrates the racial bias of executions. Most have been in the former slave states of the South. President Clinton, a former governor of one of them, is a supporter of capital punishment. But as Jack Greenberg, former director of the NAACP civil rights group points out, executions are disproportionately of blacks who killed whites.

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