Brown, Gary Leon v. Alabama

BY ARICKA FLOWERS, MEDILL NEWS SERVICE

On May 26, 1986, Gary Leon Brown of Birmingham, Alabama made a decision that would change his life forever. At the age of 27, Brown decided to rob an acquaintance with three other friends. But that robbery turned into a murder.

Brown and his friends -- Archie Bankhead, James Bynum and Jimmy Davenport -- had spent the day fishing and drinking alcohol near Locust Fork, Ala., about 30 miles north of Birmingham, according to court testimony. They then spent the evening at Chuck and Willie's Lounge in Birmingham playing pool and drinking some more. While there, the men talked about visiting Jack David McGraw, then 60, at his Pinson, Ala. home to get money. Brown and Bynum were said to know McGraw fairly well and during the men's trial, prosecutor Bob McGregor said the men had visited McGraw in the past, "allowing [McGraw] to pay them for certain acts."

They said they were "going to go over to a queer's house to do a job," Davenport later told police.

Davenport drove the men to McGraw's home and waited in the car as the others knocked on the door. McGraw let the men in, but told them he could not "party" with them since he had work early the next morning. As McGraw walked the men out to their car, Bankhead grabbed McGraw and put him into a headlock while Bynum and Brown began beating him. Davenport later testified that he saw Brown make a "slashing" motion near McGraw's neck. McGraw and Bankhead struggled to the ground, and the men then picked McGraw up and dragged him into his mobile home. Davenport remained in the car.

Once inside, the men continued to beat and stab McGraw. Brown admitted to stabbing McGraw repeatedly in the back with a small pocketknife, but blamed Bankhead or Bynum for the fatal neck wounds. Brown also said Bankhead told them they would have to kill McGraw because he had seen their faces. McGraw suffered at least 74 stab wounds. "What they did to him was absolutely savage," McGregor said. "He was almost decapitated."

Once McGraw was dead, the men gathered up small appliances and the $67 that was in McGraw's wallet and headed back to Bankhead's house, where they burned their bloody clothes and divided McGraw's possessions. According to the testimony of Bankhead's wife, the men then joked about the killing. She said she heard Brown say that he "kept stabbing and stabbing and stabbing and stabbing" and heard both Bankhead and Bynum say they cut McGraw's neck.

A few days later, police approached Brown about the slaying. He told them the men's activities of the day minus their deadly visit to McGraw's home. The police then drove Brown to Bynum's house and kept Brown outside as they questioned Bynum. Bynum told the officers that Brown inflicted all the wounds and hit McGraw on the head with a skillet. The police then arrested Brown, telling him Bynum had named Bankhead as the ringleader. Brown then gave a second statement that reflected Bynum's. Brown gave a third statement to police when they learned Bankhead was arrested. In the last statement, Brown admitted that he stabbed McGraw in the back repeatedly with a small knife and participated in the robbery.

Brown was convicted of murder and robbery in 1988. The jury, by a vote of 10-2, suggested to the judge that Brown receive the death penalty. The judge in turn accepted its recommendation and ordered Brown to die in the state's electric chair.

Bankhead was also convicted and sentenced to death, but his conviction was reversed on appeal. He was retried, convicted and sentenced to life in prison without parole. Bynum was convicted of the same crimes and sentenced to life in prison. He was paroled in 1997. Davenport was never charged for his involvement in the crime because he cooperated with police.

Brown appealed his case to the Alabama Court of Criminal Appeals in 1988 and the state's Supreme Court in 1989. In his appeals, he claimed his trial lawyer, Russell T. McDonald, did not represent him properly. Both courts upheld his conviction and sentence.

In 1989, he was denied a writ of certiorari by the U.S. Supreme Court. In 1990 and again in 1995, the state Supreme Court denied his petition for review. He then petitioned to federal court for a writ of habeas corpus, but it was denied. On June 29, 2001, the 11th Circuit Court of Appeals affirmed.

In his federal habeas appeals, Brown sought review of the state courts determination that his trial attorney was competent, arguing that the lawyer had failed to question the jurors during voir dire to identify those who were biased in favor of the death penalty, and had failed to investigate and present evidence of Brown's drug and alcohol abuse and its effects upon his mental state at the time of the crime.

"That was one of the things we contended in state and federal court," said Thomas M. Goggans, who currently represents Brown. "There was a wealth of information and evidence as to the affect of his substance abuse and his state of mind. Our contention was that information should have been presented."

On April 4, 2002, Brown was granted a stay of execution, nine hours before he was scheduled to die, upon the recommendation of U.S. Supreme Court Justice Anthony Kennedy until the Court decided whether to grant a writ of certiorari.

Brown's petition for certiorari challenged the fairness of Alabama's sentencing procedures and the method of execution used in Alabama. Brown argued that the judge should not be the sole decision-maker in death penalty cases. In Alabama, the jury can recommend to the judge that the convicted criminal be sentenced to death, but the judge makes the final decision.

As Brown was seeking Supreme Court review, the Court still had on its docket the case of Ring v Arizona, which sought a determination if judges should have the sole power to put someone to death or declare a crime heinous enough for a harsher sentence.

The other issue Brown raised was the constitutionality of the use of the electric chair. Alabama and Nebraska are the only two states that still use the electric chair for executions. Brown claimed the use of the chair violates the 8th Amendment, which bans the use of cruel and unusual punishment.

Although legislation is pending in Alabama that would change the method of execution there to lethal injection, the law has not passed yet. Goggans said he is unsure if the Court would wait until that legislation passes before putting Brown to death.

Meanwhile, Goggans said, "Gary takes things a day a time."