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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.

Drinkard’s 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, Drinkard’s conviction and sentence were affirmed by the Court of Criminal Appeals

of Alabama.

On 21 April 2000, the Supreme Court of Alabama reversed Drinkard’s conviction and

remanded the matter for a retrial. At retrial, Drinkard was represented by experienced

criminal defence attorneys Richard Jaffe, John Mays and Jaffe’s associate, Derek Drennan,

as well as lawyers from the Southern Center for Human Rights (SCHR) in Georgia. This

team established Drinkard’s 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 prosecution’s case rested upon two key witnesses’ testimony that Drinkard confessed

to Dalton Pace’s murder and had been planning the crime for some time beforehand.

Drinkard’s 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 hadn’t 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 Drinkard’s sleeve. Segars and Robinson also claimed that Drinkard told

them he wasn’t worried about getting caught because he had left no evidence – no

fingerprints, no eyewitnesses and no weapon.

In fact, even before Drinkard’s arrest for Pace’s 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 Drinkard’s “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 Drinkard’s 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.

Drinkard’s lawyers called the receptionist of the doctor’s surgery as a witness to the fact

that Drinkard had attended a doctor’s 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 Drinkard’s medication and how he would have been unable to drive, let

alone commit a violent crime under its influence.

Drinkard’s 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 Alabama’s 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

defender’s 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-its-

indigent-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 Alabama’s 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. Post-

conviction 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. Drinkard’s 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

3http://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 Drinkard’s appeal and

affirmed his death sentence.

Drinkard’s 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

Drinkard’s 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, Drinkard’s 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.

Drinkard’s 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 Robinson’s home

and Drinkard’s involvement in an unrelated burglary. Drinkard’s lawyers objected to the

introduction of evidence about the unrelated burglary, but their objection was overruled.

On appeal, Drinkard’s 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 http://sixthamendment.org/alabama-reforms-spark-expanded-use-of-public-defender-model/ 13 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 Drinkard’s lawyers from questioning

Robinson or Walker about the entire conversation.

Drinkard’s 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, Drinkard’s trial lawyers had ‘opened the door’ to the introduction of

evidence about the burglary.

The introduction of evidence about Drinkard’s 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 Drinkard’s involvement in a burglary which was not relevant to the

murder of Dalton Pace.

Such evidence was admitted by the trial court during the prosecution’s 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 Segar’s home. On

re-examination, the state immediately began asking questions about Drinkard’s

involvement with such stolen property. In spite of the defence’s 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 prosecution’s

argument had been that it had not set out to discuss Drinkard’s 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. Drinkard’s 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 Drinkard’s involvement. Thirdly, even if

Robinson’s 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 Drinkard’s 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 defendant’s prior criminal activity, such as the need to prove a

defendant’s identity or to rebut certain special defences, but it concluded that none of

these applied in this case. The defence also argued before the Supreme Court that

Drinkard‘s 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 court’s 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 defendant’s character, which are unrelated to the issue

at trial – in this case the murder of Dalton Pace. In introducing the evidence of Drinkard’s

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 Alabama’s reversal of Drinkard’s

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 Drinkard’s 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 Richard’s 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 jury’s

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 Drinkard’s step-daughter, a key alibi witness. Only a week

before the trial, the prosecution served a statement that the police had obtained from

Drinkard’s 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 Drinkard’s 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 prosecution’s 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, Drinkard’s 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 Drinkard’s 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

prosecution’s evidence, highlighting the deficiencies in the police investigation and the

credibility of their witnesses and reducing the prosecution’s case to the word of Drinkard’s

half-sister and boyfriend. Such evidence would have to prevail against the defence case,

which hopefully would feature Drinkard’s 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

Drinkard’s 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 witness’s 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 Drinkard’s

whereabouts on the night of the murder.

This time round Brock was not so easily shaken by the prosecution’s 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 over-

stated. While he was incarcerated, Drinkard and his wife separated and he was unable to

participate as a father during important years of his children’s 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-Alabama-

s-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.

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.

28 August 1993 Drinkard is arrested and charged with possession of marijuana.

1 September 1993 Drinkard is again arrested, but this time charged with the capital

murder of Dalton Pace.

August 1995 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.

16 August 1995 First trial comes to an end; Drinkard is convicted of capital murder

by the Morgan County Circuit Court.

22 September 1995 Sentencing hearing for the first trial imposes the death penalty.

18 December 1998 Alabama Court of Criminal Appeals affirms the conviction and the

death sentence.

15 January 1999 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.

21 April 2000 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.

2001 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 Drinkard’s alleged confession reviewed by the FBI and

establish that he had been at home at the time of the murder.

25 May 2001 Drinkard is acquitted on retrial and released.

Chronology produced by Linklaters.