Case Summary

GARY DRINKARD
Summary Of The Facts
On 19 August 1993, the body of the victim, Dalton Pace, was found. Authorities estimated his time of death at around 8:00 p.m. the previous night and he is believed to have been robbed of approximately $2,000 cash. Gary Drinkard was arrested nine days later on a possession of marijuana charge. On 1 September 1993, Drinkard was again arrested and this time charged with the capital murder of Dalton Pace. Drinkards first trial began in 1995. He was represented by two lawyers who specialised in debt collection and foreclosures. They failed to test damning prosecution evidence and to present the testimony of two physicians who would have testified that Drinkard had recently suffered a severe back injury that made it physically impossible for him to have committed the crime. On 16 August 1995, Drinkard was convicted of capital murder by the Morgan County Circuit Court. On 22 September 1995, he was sentenced to death. On 18 December 1998, Drinkards conviction and sentence were affirmed by the Court of Criminal Appeals of Alabama. On 21 April 2000, the Supreme Court of Alabama reversed Drinkards conviction and remanded the matter for a retrial. At retrial, Drinkard was represented by experienced criminal defence attorneys Richard Jaffe, John Mays and Jaffes associate, Derek Drennan, as well as lawyers from the Southern Center for Human Rights (SCHR) in Georgia. This team established Drinkards alibi: he had, in fact, been at home at the time of the murder. Drinkard was finally acquitted and released on 25 May 2001, over six years after he was arrested.

1995 Trial
Drinkard faced two considerable obstacles at trial: (1) Because he was unable to afford his own lawyer, the court appointed two commercial lawyers, with very little criminal experience between them, to handle his case; and (2) Two key prosecution witnesses gave damning evidence against him which was not properly tested at trial. The prosecutions case rested upon two key witnesses testimony that Drinkard confessed to Dalton Paces murder and had been planning the crime for some time beforehand. Drinkards half-sister, Beverly Robinson, and her boyfriend, Rex Segars, testified that Drinkard had told them on more than one occasion before the murder that he knew where to get some easy money. They said that Drinkard had described how an old man named Dalton Pace ran a junkyard and always had a wad of cash on him but that he was a big SOB who would have to be killed to get his money. Segars added that, after the murder, Drinkard said that he shot the victim three or four times once in the front and three more times in the back but worried he hadnt killed him. He had asked Segars if

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he could help him get a hot pistol to finish him off. Segars testified that Drinkard had told him he had only managed to steal $2,200. He also told Segars that the victim had grabbed his arm and torn his sleeve. Segars claimed that he saw what appeared to be claw marks on Drinkards sleeve. Segars and Robinson also claimed that Drinkard told them he wasnt worried about getting caught because he had left no evidenc e no fingerprints, no eyewitnesses and no weapon. In fact, even before Drinkards arrest for Paces murder, Robinson had telephoned the police and reported his involvement. Robinson and Segars were themselves suspects in a string of robberies and drug offences and the police had found marijuana plants, cocaine and syringes in the trailer where Robinson and Segars lived. The police offered to drop all charges against Robinson if she testified against Drinkard and if she would wear a concealed tape recorder and secretly record a conversation with him. Robinson talked to Drinkard about a number of subjects, dropping in the murder as a topic of conversation. Drinkard allegedly confessed to the murder during this conversation. The strength of Drinkards confession was compelling and damning evidence. The prosecution did not produce a murder weapon and the taped conversation was not played at trial. There were no eye witnesses and no further evidence of his guilt. However, information which would have undermined the credibility of these two star witnesses was not brought out at trial. In addition, when Drinkards appellate defence team eventually listened to the taped confession, it was distorted and garbled during those portions where the murder was discussed. After the state rested its case, the defence introduced medical records which demonstrated that Drinkard had visited an orthopaedic surgeon on the day of the murder and obtained powerful medication for a back injury. Little was made of these records. Drinkards lawyers called the receptionist of the doctors surgery as a witness to the fact that Drinkard had attended a doctors appointment, but failed to call the doctor himself to provide medical testimony as to the nature of the injury and the effect of the medication. When later called at an appellate trial, the doctor produced compelling evidence as to the sedative effects of Drinkards medication and how he would have been unable to drive, let alone commit a violent crime under its influence. Drinkards trial lasted less than a week. His jury deliberated for just forty -five minutes as to his guilt and even less time when deciding to sentence him to death.

The Impact Of Alabamas Indigent Defence System

That Drinkard received such a poor standard of representation at his initial trial is, sadly, unsurprising given the way indigent defence services are provided in Alabama. Alabama does not have a state-wide public defender system and this has often been blamed for low capital defence standards. Instead, the state uses a mixture of contract, appointment and public defender systems.1 On 9 June 2011, new legislation was introduced which created the Office of Indigent Defense Services (OIDS) in Alabama.2 The intention of the legislation was to improve the standard of indigent defence services across the board in Alabama but also to reduce the associated costs. However, the legislation has been criticised because the Director of the
1

Alabama has 41 circuit courts across its 67 counties. Around 26 of these have contract systems, 6 have a public defenders office and the remaining 9 circuit courts use the appointment system, see below: http://www.annistonstar.com/view/full_story/21675019/article-No-savings-yet-from-Alabama-s-reform--of-itsindigent-defense-payment-system 2 http://comptroller.alabama.gov/pdfs/Act 2011-678 Office of Indigent Defense Services.pdf

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OIDS reports to Alabama's Finance Director, rather than to an independent board (as recommended by the American Bar Association).3 The new legislation has also not changed the fact that judges in Alabama have discretion to override the jury on sentencing. In 2001, the year that Drinkard was acquitted, the Senate Judiciary Committee noted that up to that point about a quarter of death row inmates were cases where juries in Alabama had recommended a life sentence, but the judges had overridden their decisions in favour of the death penalty.4 The Equal Justice Initiative has noted that Alabama is the only state in which judges routinely override jury sentencing (only two other states permit judicial override at all: Florida and Delaware) and that 21 percent of Alabamas death row inmates were sentenced to death through judicial override.5 Judges in Alabama are elected and it is their responsibility to appoint prosecution and defence counsel. Stephen Bright of the SCHR has stated that judges who run for election should not be appointing either the prosecutor or the defence and has cited the example of a judge who ran for election showing on his TV campaign commercials all the people he had sentenced to death.6 In addition to the major obstacles of jury override and elected judges selecting defence counsel, the other serious issue for representation of capital defendants is funding. Postconviction funding in Alabama is capped at $1,500 per defendant.7 This figure is based on a lawyer spending just over 21 hours of time on a case at an estimated fee of $70 per hour.8 Clearly, this is totally inadequate, notwithstanding the fact that many attorneys routinely charge quite a lot more than $70 per hour. Pre-conviction trial support for capital defence attorneys is unlimited, but is still calculated on the basis that the attorney cannot claim more than $70 per hour for their time.9 The problem with this fee structure is that defence lawyers who are available to work on this fee basis are often inexperienced and not specialised in criminal law, let alone capital trials. Drinkards case is emblematic of this as during the trial that resulted in his conviction and death sentence he was represented by two court-appointed lawyers, the first of whom was a collections and commercial lawyer and the second a bankruptcy lawyer. Neither of them had adequate experience to represent a defendant facing capital murder charges. Drinkard has said that, "[t]he preparation was so poor it was unreal...I just had to take what I could get. I'm very angry. It's something hard I have to deal with."10 The new legislation adopted in 2011 makes provision for training programmes for lawyers involved in capital representation,11 but without public defender offices and centralised programmes in place this will not happen. There are some small signs that the capital defence system in Alabama is improving. According to one report, Alabama has more than doubled its indigent defence spending since 2002 and the most populous county, Jefferson County, has opened a public defender office. Montgomery County is also planning to open a public defender office in 2013, with
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http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/Standards/Nation al/DOJStandards.authcheckdam.pdf 4 Hearing of the Senate Judiciary Committee, Subject: Protecting the Innocent: Ensuring Competent Counsel in Death Penalty Cases chaired by Senator Leahy, held in 226 Dirksen Senate Office Building, Washington D.C., reported in the Federal News Service, June 27, 2001. 5 http://www.eji.org/deathpenalty/override 6 See Hearing of the Senate Judiciary Committee, ibid. 7 15-12-23(d) of the Code of Alabama, as amended by Section 6 Act No. 2001-678 (SB440) 8 15-12-23(d) of the Code of Alabama, as amended by Section 6 Act No. 2001-678 (SB440) 9 15-12-21(d) of the Code of Alabama, as amended by Section 6 Act No. 2001-678 (SB440) 10 Congress weighs keeping DNA evidence in death penalty cases, The Dallas Morning News, June 28, 2001 11 4(d)(9) of Act No. 2001-678 (SB440)

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the aim of bringing capital defence in line with national standards.12 Whether other counties in Alabama will follow the same model and whether that will, as hoped, improve the standard of capital defence across the board remains to be seen.

Court Of Criminal Appeals

In December 1998, the Alabama Court of Criminal Appeals denied Drinkards appeal and affirmed his death sentence. Drinkards lawyers raised more than 29 issues on appeal, each asserting that there had been certain flaws in the original trial or the sentencing hearing. However, because Drinkards trial lawyers had not raised an objection when many of those issues came up at trial, the Appeals Court was barred from examining many of the issues in detail. Generally speaking, the failure to object to a matter during trial prevents a defendant from arguing on appeal that the trial court made an error. In cases involving the death penalty, however, the appeal court is permitted to review those matters for plain error. 13 The issues included how the grand jury and its foreperson were selected, prejudicial comments made by the prosecution, the introduction of photos of the victim (which the defence argued on appeal served only to inflame the jury) and, most importantly, the introduction in evidence of only a portion of a taped conversation between Drinkard and Beverly Robinson, Drinkards half-sister and a key prosecution witness. So, what is plain error? The Supreme Court has described such errors as particularly egregious errors which seriously affect the fairness, integrity or public reputation of judicial proceedings, or an error which not only seriously affects substantial rights [of the defendant], but had an unfair prejudicial impact on the jury's deliberations. The Supreme Court has also said that the failure to object at trial weighs against any claim of prejudice an appellant may make. During the murder investigation, Robinson agreed to a police request to covertly record a conversation with Drinkard in the hope that he would admit his involvement in the murder. The recording was garbled, containing a lot of static and background noise, particularly during key parts of the conversation. Nonetheless, Gary Walker, the lead detective, testified that approximately 14 minutes into the conversation, he heard Drinkard say, The old man grabbed at me and then we went for a gun or something. The recording device failed after 17 minutes. Drinkards trial lawyers had not objected to the fact that only a part of the recording was presented in evidence. Instead, they questioned Robinson about the remainder of the conversation, thereby drawing out testimony about stolen property at Robinsons home and Drinkards involvement in an unrelated burglary. Drinkards lawyers objected to the introduction of evidence about the unrelated burglary, but their objection was overruled. On appeal, Drinkards lawyers argued that the prosecution should have elicited testimony regarding the entire conversation which included, they said, exculpatory statements. On considering this issue, the Court of Criminal Appeals found that there was no plain error Robinson testified that nothing more was said in the conversation that pertained to the

12 13

http://sixthamendment.org/alabama-reforms-spark-expanded-use-of-public-defender-model/ Rule 45A, Ala.R.App.P states: In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant .

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murder and, in any event, nothing prevented Drinkards lawyers from questioning Robinson or Walker about the entire conversation. Drinkards appeal lawyers also argued that the introduction of evidence about his involvement in the unrelated burglary was improper. Again, the Court of Criminal Appeals dismissed this argument on the basis that by questioning Robinson about the remainder of the conversation, Drinkards trial lawyers had opened the door to the introduction of evidence about the burglary. The introduction of evidence about Drinkards involvement in an unrelated burglary was, however, ultimately the basis upon which the Supreme Court of Alabama reversed his conviction and ordered a retrial.

Supreme Court of Alabama

On 21 April 2000, the Supreme Court of Alabama reversed the conviction by the Court of Criminal Appeals of Alabama and ordered that Drinkard be retried. The Supreme Court based its ruling on its finding that the trial court had wrongly allowed the prosecution to introduce evidence of Drinkards involvement in a burglary which was not relevant to the murder of Dalton Pace. Such evidence was admitted by the tri al court during the prosecutions questioning of Beverly Robinson, who had agreed to testify against Drinkard as part of her plea bargain with the state (see section 2 above). During her cross-examination by the defence, Robinson testified that, while wearing the police wire tap, she had tried to get Drinkard to confess to killing Pace by expressing concern that the police might suspect Rex Segar of the murder. The defence then asked Robinson to confirm that Drinkard had replied that the police were just looking for stolen property found at Robinson and Segars home. On re-examination, the state immediately began asking questions about Drinkards involvement with such stolen property. In spite of the defences objections to these questions, the trial court allowed Robinson to proceed with her testimony that Drinkard had assisted Segar and her with burglaries, by informing the pair when certain people would not be at home. In examining this issue, the Supreme Court considered whether Drinkard and his defence team had opened the door to the admission of such evidence. The prosecutions argument had been that it had not set out to discuss Drinkards involvement with the stolen property, but that it was entitled to do so when the defence chose to ask Robinson questions which would cause her to mention the stolen property. Drinkards team had thus improperly injected the issue of the theft in the trial, the prosecution argued. Firstly, the Supreme Court held that, given that the state had presented part of the conversation between Robinson and Drinkard, the defence had a legal right to ask about other parts of that conversation. Secondly, it found that the defence had only elicited information from Robinson about stolen property, but at no time had the defence injected the issue of theft into the trial, let alone Drinkards involvement. Thirdly, even if Robinsons cross-examination had revealed that her conversation with Drinkard had referred to his involvement in the theft, the prosecution would only have been allowed to ask Robinson for information on the theft which was covered in that conversation or information which was part of that conversation but which related to the part of the conversation brought out by the defence. When the prosecution asked Robinson to testify about Drinkards role in helping her and Segar commit burglaries, it was addressing a background issue which related neither to the relevant conversation, nor to the part of the conversation brought out by the defence.

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The Supreme Court considered certain other exceptions which could allow the defence to introduce evidence of a defendants prior criminal activity, such as the need to prove a defendants identity or to rebut certain special defen ces, but it concluded that none of these applied in this case. The defence also argued before the Supreme Court that Drinkards trial court hearing had been unfair because: (i) There had been racial discrimination in selecting the Morgan County grand jury foreman; and (ii) Prospective jurors had been struck off based either on their gender and race, or on presumptions about their suitability which were incorrectly documented. Drinkard was unsuccessful in both these arguments and the Supreme Court upheld the Court of Criminal Appeals ruling that the trial courts indictment had been valid. In any event, however, the Supreme Court ruled that a retrial was necessary because evidence had been improperly introduced at the trial court hearing. In its judgement, the Supreme Court recalled that the use of evidence of prior bad acts in this case the burglaries are generally not permitted as they are presumed to lead the jury to form conclusions about the defendants character, which are unrelated to the issue at trial in this case the murder of Dalton Pace. In introducing the evidence of Drinkards involvement in thefts which were not connected to the murder, the trial court had made an error which might have unfairly prejudiced the jury against Drinkard. The Supreme Court therefore ordered a retrial.

Retrial
Drinkard was acutely aware that, even if successful on appeal, he would need a strong attorney and legal team, experienced in capital trials, to ensure a different outcome at his retrial. He repeatedly pleaded with his appeal attorneys to help him secure a good trial attorney and, in his own words, he wrote and wrote and wrote again to anyone who might be able help him. One person who Drinkard wrote to repeatedly during his incarceration was Richard Jaffe, an experienced Birmingham criminal defence attorney renowned for his successful record of securing exonerations for prisoners on death row. According to Jaffe, what caught his attention was that in each of his brief letters to him, Gary Drinkard declared I am an innocent man.14 Following the Supreme Court of Alabamas reversal of Drinkards conviction and death sentence, Drinkard again wrote to Richard Jaffe asking him if he would appeal to the Decatur trial judge to be appointed as Drinkards trial counsel. In Alabama, the trial judge decides which defence counsel to appoint and initially Judge Haddock, the same judge who had appointed an insolvency lawyer to defend Drinkard in his original trial, was not prepared to appoint Jaffe. After much persistence, the judge relented and Richard Jaffe was appointed as lead counsel, along with John Mays, a senior criminal defence attorney from the Decatur area, and Richards associate , Derek Drennan. An important issue for any attorney defending a capital murder charge in Alabama is that it is one of only three States in the US where the judge has discretion to overrule a jurys sentencing decision. Having a strong mitigation plan and strategy is, therefore, as important as a robust defence in the main proceedings. Drinkard secured the help of attorney Christopher Adams and mitigation investigators at the SCHR. The investigative work carried out by the SCHR would prove to be invaluable to the defence.
14

Richard S. Jaffe, Quest for Justice: Defending the Damned, New Jersey: New Horizon Press, 2012, p.231

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Preparation for the re-trial itself was fraught with difficulties, the worst of which was that the defence could not locate Drinkards step-daughter, a key alibi witness. Only a week before the trial, the prosecution served a statement that the police had obtained from Drinkards step-daughter. In it, her story had changed entirely from the first trial and she now said that Drinkard had not been home that night at all. Fortunately for Drinkard, the investigation work carried out by the mitigation team gave the defence enough material to impeach the credibility of Drinkards step-daughter. Not only was she facing criminal charges for drug possession in Florida, she had also stolen from previous employers. While she denied that she had been offered a deal by prosecutors, according to Jaffe, her explanation beggared belief . The prosecutions next key piece of evidence was the alleged confession by Drinkard to his half-sister, Robinson, during their taped conversation. Important ground was made in relation to this alleged confession. Through the cross-examination of an FBI forensic expert, Drinkards defence team was able to establish that the distortion was distortion in the transmission, not the recording. Therefore, what the jury heard on the recording was exactly the same as what Detective Walker heard at the time that the tape recording was made. This enabled the jury to come to their own conclusions about whether Drinkard had confessed and they did not need to rely on the evidence of Detective Walker. Furthermore, it became clear that the distortion was occurring at key points of the conversation. As Drinkards half-sister was wearing the wire between her legs, the explanation offered to the jury was that she was intentionally muffling the wire at critical times. At this stage of the retrial, the defence had managed to make significant inroads into the prosecutions evidence, highlighting the deficiencies in the police investigation and the credibility of their witnesses and reducing the prosecutions case to the word of Drinkards half-sister and boyfriend. Such evidence would have to prevail against the defence case, which hopefully would feature Drinkards remaining alibi witnesses, who had assisted with the birthing of his dog that night, and medical evidence as to his severe back-injury and the near knock-out effect of the medication he had been prescribed. When the defence opened its case, the first witness they intended to call was the friend of Drinkards step-daughter who had been present at the house for the birth of the puppies that night and could provide an alibi for Drinkard. However, it soon transpired that the police had sent investigators to the witnesss house, after which time she became convinced that she would be charged with perjury if she gave evidence. Ultimately, she decided that she would not give evidence and the alibi defence now hung on the testimony of Willodene Brock who had assisted with the dog birthing and could testify to Drinkards whereabouts on the night of the murder. This time round Brock was not so easily shaken by the prosecutions cross -examination. Her evidence was firm and credible and buttressed by her boyfriend, who was also delayed in attending a dance that night due to the dog birthing. They were clear that Drinkard was at home in his living room at the time that Dalton Pace was murdered. Ultimately, it took the jury a little over an hour to deliberate and reach the verdict that Drinkard was not guilty. Drinkard would now be set free after seven years on death row.

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Aftermath
The cost to Gary Drinkard of his wrongful conviction and incarceration cannot be overstated. While he was incarcerated, Drinkard and his wife separated and he was unable to participate as a father during important years of his childrens lives. He also lost the land that he was developing at the time of his arrest. Following his release, Drinkard retrained as a respiratory therapist. Despite his stellar grades and promise in the new profession, no hospital would employ him due to his past arrest for capital murder. Drinkard now spends his time working with Witness to Innocence (WTI) an organisation dedicated to empowering exonerated death row survivors to be the most powerful and effective voice in the struggle to end the death penalty in the US. As a valued member of the WTI board and the WTI Speakers Bureau, Drinkard speaks to organisations and colleges throughout the South and the rest of the country, using his own experience to try and draw attention to the problems with the capital system.

Sources
http://www.annistonstar.com/view/full_story/21675019/article-No-savings-yet-from-Alabamas-reform--of-its-indigent-defense-payment-system http://comptroller.alabama.gov/pdfs/Act 2011-678 Office of Indigent Defense Services.pdf http://www.americanbar.org/content/dam/aba/uncategorized/Death_Penalty_Representation/S tandards/National/DOJStandards.authcheckdam.pdf Hearing of the Senate Judiciary Committee, Subject: Protecting the Innocent: Ensuring Competent Counsel in Death Penalty Cases chaired by Senator Leahy, held in 226 Dirksen Senate Office Building, Washington D.C., reported in the Federal News Service, June 27, 2001. http://www.eji.org/deathpenalty/override 15-12-23(d) of the Code of Alabama, as amended by Section 6 Act No. 2001-678 (SB440) 4(d)(9) of Act No. 2001-678 (SB440) Congress weighs keeping DNA evidence in death penalty cases, The Dallas Morning News, June 28, 2001 http://sixthamendment.org/alabama-reforms-spark-expanded-use-of-public-defender-model/ Richard S. Jaffe, Quest for Justice: Defending the Damned, New Jersey: New Horizon Press, 2012.

Case Review produced by Linklaters.

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Chronology

GARY DRINKARD
19 August 1993 Body of victim, Dalton Pace, is found. Authorities estimate his time of death at around 8:00 p.m. the previous night and he is believed to have been robbed of approximately $2000 cash. Drinkard is arrested and charged with possession of marijuana. Drinkard is again arrested, but this time charged with the capital murder of Dalton Pace. First trial begins - Drinkard is represented by two lawyers who specialise in debt collection and foreclosures. The defence fail to present medical testimony proving that Drinkard had suffered a severe back injury that made it physically impossible for him to have murdered Dalton Pace. First trial comes to an end; Drinkard is convicted of capital murder by the Morgan County Circuit Court. Sentencing hearing for the first trial imposes the death penalty. Alabama Court of Criminal Appeals affirms the conviction and the death sentence. Drinkard is denied a rehearing. Drinkard writes to Richard Jaffe, Alabama defence attorney asking for his representation and declaring himself to be an innocent man. Alabama Supreme Court holds that the evidence presented at the initial trial is inadmissible, reverses the conviction and remands the matter for a re-trial. Retrial begins. Richard Jaffe, John Mays and lawyers from the Southern Center for Human Rights in Atlanta represent Drinkard. They conduct a full mitigation investigation, have the tape recording of Drinkards alleged confession reviewed by the FBI and establish that he had been at home at the time of the murder. Drinkard is acquitted on retrial and released.

28 August 1993 1 September 1993 August 1995

16 August 1995 22 September 1995 18 December 1998 15 January 1999

21 April 2000

2001

25 May 2001

Chronology produced by Linklaters.