#196 Jason Flom with Gary Drinkard

alone a man the size of Dalton Pace. When Gary's half sister, Beverly Robinson and her boyfriend Rex Seegar were dealing with their own significant legal troubles, they tried to trade alleged information about dalton paces murder for leniency, claiming that Gary was the killer. To corroborate those false claims, Beverly wore a wire between her legs while trying to coax the eight words out of Gary, But whenever Gary denied involvement, Beverly would rub her thighs together, making his

denials inaudible. Then the lead detective took it upon himself to testify a trial about Gary's alleged taped confession. It took a literal dream team of lawyers to undo those lies, including the great Brian Stephenson and our returning guest, the eminent attorney Richard Jaffee. However, nothing will ever make up for all that lost time Gary spent on death row. This is Wrongful Conviction with Jason Flop. Welcome back to

Wrongful Conviction with Jason Flam that's me. I'm your host, and today I'm actually almost a little nervous because I have not one, but two people who I just look up to so much. One you'll recognize, Richard Jaffee, is one of the most prolific and successful death penalty lawyers in the country. Richard, Welcome back to rawfle Conviction. Thank you so much. I said great to be here. And with him is someone who he speaks of in the Reverend tones, and he's not the only one. His story

will anger you, but his spirit will inspire you. Gary Drinkard, Welcome to Rona Conviction. Thank you so much. It's wonderful to be here. Let's start at the beginning. First of all, Gary, did you grow up in Alabama? I did. I've been all up in the north and out West, and everything always came back to Alabama for the most part. You know, until this insane fate befail you, things were pretty good. Is that fair to say? Oh? Yeah, everything was going great.

I had just followed acres of land and then rolled into college when we were fixing build a dream home. And then bamn, everything goes crazy. Yeah, and everything really did go crazy. And just to set the stage, we're talking about the afternoon of August when the body of Dalton Pace was found in his Decatur, Alabama home. He had been shot twice in the back and once in the head. Now, Mr Pace ran the junkyard out of his home and was known for carrying large rolls of cash.

He was a guy who didn't trust banks, so he was a logical target for somebody, and all of the cash, except for the contents of his wallet, had been stolen. So Richard, take us back to this crime, because what's going to become clear as we go along is that it was actually totally impossible for Gary to have committed this crime. But somehow or other, long before you even heard about the case, he was convicted anyway and sentenced

to death. This is really an extraordinary case because Gary was thirty five miles away, and when the authorities got there they found a bottle of whiskey and a glass and they didn't even fingerprint these two items. After a couple of weeks, the investigation went nowhere, and suddenly Beverly Robinson, who happened to be Gary's half sister, went to the police and she said, I can help you find who

killed Dalton Pace. She said it's my half brother, Gary Drinkard And they said, well, you got any corroboration to that, and they said, yeah, I'm my boyfriend Rex Seegers, who I live with, and that's it, At which point they said you're gonna have to give us more than that, so they wired her up, sent her over to Gary's home around six thirty or so in the morning, sat there drinking coffee with Gary, wired up with Detective Gary Walker in a van, and like you see on TV,

down the street listening in real time, Beverly Robinson had brought a newspaper of the account and then started reading from the newspaper and asking Gary questions about the crime, as if Gary might have known something. And every time Gary answered the question, the take was not legible because and We found this out later. Beverly's wire was between her legs and she would rub her legs together every time. She would try to get Gary to incriminate himself, and

he never did. She was almost sort of editing the tape for the cops. Gary. When did you first find out that you were considered a suspect? Oh, I had no clue until the police came one morning and busted my door open. They had a search more for marijuana. It was a quarter ounce, and they were looking for everything except marijuana. They threw my wife and myself on the ground handcuffed. They drugged my kids out of the bedrooms. One of them stuck a gun to my son's face,

leaving a bruise. They made my sixteen year old daughter and her friend come out of the back bedroom, wouldn't let him get a dressed. They were in their bra and panties in front of all those polis, and I was just outraged. I didn't find out until two weeks after I had been arrested for the marijuana that I was implicated in a murder. The idea that they were willing to bust up your house and then handle your family in a way that they did for a quarter

rounds a pot. Of course, we know that that wasn't really what they were after, but DU's the idea that it could be used as a pretext to go in and bust up a house and a family like that. That can't go on anymore. Amazingly enough, it was dry in that area of marijuana at the time. Beverly is the one that sold it to me. They knew exactly where to go find it, and I'm really believing that

they gave bit to her to sell to me. Wow. Well, I think it's important to realize that Beverly and Rex had also been busted and both of them were facing serious criminal charges. And Rex was on parole from Oklahoma and he was facing forty years if he screwed up his parole, but as a career criminal, he was looking

at a light sentence in Alabama. So both of them were hugely motivated to try to give them Gary a likely suspect in their mind if they could get Gary to confess to something he wouldn't confess to and didn't do it. Now, Dalton Pace was not a small guy, right. This is a big, strong man who put up a tremendous struggle, and that plays into the story as well. Gary, forget the fact that you had an airtight alibi because you were thirty five miles away and there was a

particular reason why your alibi was so tight. Just explain to the audience what was going on that very day when Mr Case was murdered. I had bought four acres of land, and the neighbor had gave my daughter a picking these dog that was pregnant. She wanted to pickle the litter of the puppies, and she told us when she started having the puppies to call her and she

would come out there and help us birth them. So the night of the murder, which I knew nothing about, we called the lady and she came over to the house with her boyfriend, and she was back with my daughter and helping her birth to puppies as her boyfriend and I were sitting in the living room watching the news. And you were also in no physical shape to burder anybody at the time, right, And I was on strong muscle actres and I was laid up on the couch

from a back injury. Is it fair to say that you couldn't have even driven to thirty five miles much less got out of the car and gone it. Struggled with a big, strong man, I could have actually driven there, but I couldn't have struggled with him, and overcame anything. So Richard, how the hell did they build a with no evidence? And how were they able to convince a jury that he did it when it should have been obvious to anyone that these snitches were incentivized, and in

all likelihood were the actual perpetrators. Well, it's a great question because Gary was appointed for that first trial three local lawyers, but none of them were experienced criminal lawyers, and especially not in the death penalty arena. They didn't call the doctor that treated Gary that would have explained the extent of his condition, the fingernail scrapings that were

on the deceased Dalton pace. They didn't even challenge that they weren't tested, nor that fingerprints that were taken from the whiskey wasn't compared to Rex or to Beverly. They didn't do any of that. What they did was they called Beverly as the chief witness, and they called the detective that had engineered the wired conversation with Gary and

Beverly and here's the kicker. That particular detective told the jury that while he couldn't hear all of what was on the tape, he was able to hear that Gary said to Beverly, the old man grabbed me, and you know, I had no choice but to shoot it, which was never on there. But the lawyers unfortunately left that slide and the jury believed the detective that Gary had confessed when he didn't. You know, juries can be misled fairly easily when people in positions of power views that power.

And that's exactly what happened here. Now, the jury didn't deliberate very long, and yeah, approximately an hour, and the judge had told one of his secretaries and it got back to my mother that if I put on some type of mitigating evidence that he would give me life. While problem well, I wasn't about to get my mother up there begging and crying for my life when I hadn't done anything and I didn't put on any mitigating evidence and I was found guilty and send us to death.

And that was that was devastating because I figured, well, I'm going down there with the worst to the worst. I've gotta be watching my back all the time. I think it's a lot of people's worst nightmare and you were living it. Can you just give us a sense of death row in Alabama? You know, take us inside that cell if you can't. Well. It was a little five by eight concrete cell. I mean most people's bathrooms are larger than that. It was nasty. They would give

you cleaning supplies, but you couldn't keep it clean. There was cockroaches three inches long, rats running around, insane people hollering. We had a man I was on the second tier. There was a man on the first tier. He would holler twenty four hours of day that there were people committing suicide trying to beat the executioner. There were people committing suicide because they weren't so much pain, and the doctors wouldn't help them. Your friends get sent to be executed.

If the winds blowing right, you smell burning fledge. It was unreal. This episode is underwritten by the a i G pro Bono Program. A i G is a leading global insurance company, and for over a decade, the ai G pro Bono Program has provided thousands of hours of free legal services and other support to nonprofit organizations and individuals most in need. More recently, the program added criminal and social justice reform as a key pillar of its mission.

The Pacers Foundation is a proud supporter of this episod so the Ronful Conviction with Jason Flam and of the Last Mile Organization, which provides business and tech training to help incarcerated individuals successfully and permanently re enter the workforce. The Pacers Foundation is committed to improving the lives of Hoosiers across Indiana, supporting organizations that are dedicated primarily to

helping young people and students. For more information on the work of the Pacers Foundation or the Last Mile Program, please visit Pacers Foundation dot org or the Last Mile dot org. I was rereading your chapter in Richard's wonderful book Quest for Justice Defending the Damned. Uh. It's the second edition. The stories are really brilliantly told. You really get a chance to be inside the mind of one of the great courtroom lawyers of our time in life

or death situations. So I think you'll enjoy reading it. But as I was rereading that chapter today, I was thinking about you somehow or other went from I don't know what you want to call the outhouse to the Penthouse in terms of your legal representation, because you ended up having the great Brian Stevenson gets you a retrial. The first attorneys you know at the trial didn't do a good job, and I was fearful that the appeals attorney wouldn't do a good job. So I wrote Mr

Stevenson begging for an attorney to handle my appeals. When I did hear back from him, he appointed Mr Randy Suskin to handle my appeals. I was thrilled Gary got a new trial because of prosecutorial misconduct improper evidence offered against him in his first trial. And now that Brian Stevenson and Randy Suskin had done their part, you got involved. You weren't even really a the Cator lawyer, so you had to basically pull some strings and maneuver yourself into

this case. If I was going to get on, I knew that I would have to get appointed. The problem with getting appointed was said, the judge doesn't know me. I've not practiced there, but John May's, my good friend, did and does practice there. So John was ultimately able to talk the judge into appointing us both with some conditions, and then Steve Wright from the Sun consider from Human Rights called me at home and he offered the services of Chris Adams and the mitigation team of Southern Center.

It was a deal I would never refuse, and boom, we had our team in place. I think for many people listening, they're probably going, well, Okay, now you got this dream team. You have all this evidence. The state has no evidence. This should have been a slam dunk. The first thing that happened in this case right before trial that basically just blew our world was this. We were counting on the perfect alibi that Gary had, which was multiple people besides of course the doctor in his back.

And one of those alibi witnesses testified in the first trial, and her name was Kelly Hargrove. That was Gary's stepdaughter. Well, Kelly was going to be one of three or four alibi witnesses we were going to call, and right before trial we couldn't reach her, and she had moved to Panama City and she would not respond to our couldn't even subpoened her. And we figured out what happened. They had cut a deal with her, meaning that she had

got in trouble in Panama City. She was facing some potential theft charges, and she cut a deal, even though the state never admitted it, and suddenly she became the chief witness for the state. She basically said, I perjured myself in the first trial, and Gary confessed to me, and that was her testimony in the second trial. So they were far from done with their dirty tricks. And in fact, they really pulled the rug out from under

you in a pretty serious way here. So you had to pivot, but that that wasn't the only card you had to play. Oh no, no, no. So where I candidly made a tremendous tactical mistake, and I write about it in the book with clarity and candor, because lawyers need to be conscious of every word they speak. And I asked a question that I never should have asked, and it was what were the scratches that she claimed that she solved twelve days later when she said Gary confessed.

Where were they on Gary? And it was a huge mistake because I didn't take into consideration the obvious is that they would have prepped her and showed her the pictures of the scratches that Gary had that he received when he was arrested and basically jerked onto the concrete from his automobile. They jerked him out about it causing scratches, and she described those scratches as being very red and very fresh and long scratches, and it was what the

pictures showed, and it was an awful moment for me. Fortunately, we got a lunch break and everybody else was eating lunch. I was like underwater, and then I figured it out, like a bell went on right before we went back. Is that there's no way that those were the scratches that she saw, because if she'd seen those scratches twelve days later when she said Gary confessed, they wouldn't have been fresh, they would have been scabbed, and they would

have been in the healing process. There's no way that those scratches would have occurred at the crime scene from Dalton Pace. There's no way. And once I overcame that hurdle, then showing that she was beyond belief was very easy to do, especially since we had Affi David's from all the people she stole from in Panama City that she denied. So the step daughters claims about an alleged confession, we're proven to be totally incredible that live brought to you,

of course by prosecutor conduct. But this wasn't the only person that they had coursed. An alibi witness that was a friend of Gary's daughter. We flew her up from Oregon on our own dime, and when the investigators and the prosecution found out, they intimidated her at the motel where she was staying and basically spooked her, and she

refused to testify. They threatened her with perjury, and that would have been a nice thing to have her because she was another strong alibi witness that they used their power to keep her from testifying. Now comes another state's witness. Beverly gets back on the stand to repeat the lies she told in the first trial, and really the lies that started the whole thing. And of course she denied having an incentive to lie, and Richard proved that her

denials were lies, destroying her credibility. So now Beverly, who bears a great deal of responsibility for Gary's wrongful conviction, was all deflated. And when she off the stand, she does something absolutely nuts. Gary, go ahead, do you speak to that right issue? Was getting off to stand, she looks over me and said I've always loved you, and the judge said, get her out of here, get out of here. I mean, everybody in there could tell she was lying. Everybody could tell she was high, she was

hopped up, like that's like it's like a movie. It's like it's like some of my cousin Vinny ship or something. It's crazy. What were the other key things that you think really turned the jury around. Well, let me start by saying this that in the first trial, the detective detective Gary Walker had said that while listening to the type recorded conversation between Garry and Beverly is half sister,

that Gary confessed. And I already mentioned that, but the tape got enhanced because we insisted the FBI and anstin. They brought the FBI agent to testify in state court, and the FBI agent had to be honest. And as many times as we played the enhanced tape, he never heard Gary confessed because it wasn't on there. And then Detective Walker testified in spite of it not being on there, he insisted, even on my cross with him, he insisted

that Gary basically confessed. And we played that tape at least a half a dozen times and it was very clear that Gary never confessed. It was never on the tape, and he could not have heard what he told the jury in the first trial. On the second trial that he heard. And when that occurred, I think the trial was pretty much over in our favor. I knew we'd put on a good case, and I knew I had a good chance of being found not guilty. But you never never allow your hopes to get up, or you'll

get crushed and it'll devastate you all over again. But when they sent the jury out to deliberate, Richard and the other attorneys went after some coffee. Well, the latch in the courthouse went out. Somebody outside had hit a telephone pole, and a police officer that was setting with me put a gun in my back, and I'm thinking, oh, Lord, decision is going to shoot me before I even get a chance to hear the juror Jesus Christ Again, if you put that in the movie, somebody would go, Now,

nobody's gonna believe that. Sorry, I to take that out. Gary. We talked about the worst moment of your life when you were found guilty. So this is the opposite. Paint the picture for us as best. Can can you take us inside that moment in the courtroom. Well, when they told me to stand up and they pronounced not guilty verdict, everybody in the court room, I believe had tears. I think the old judge he was syd a couple of tears.

That was probably the happiest moment of my life. We interviewed the drawers afterwards and they all said, basically, look, we know he never could have done it, he never should have been charged, and we reached our verdict in less than five minutes. There's no way to quantify the depth of your feelings when someone is basically snatched away from the grips of death. Well, I'm walking out the courthouse and my mother's there, my ex wife's there with

my children, good friends there. My kids are just thrilled to death. And they asked me, what's the first thing I want to do. I said, get some barbecue right away. So, Gary, since getting out, you've been doing some great work with Witnessed Innocence, Kirk Blisworth and the whole crew, raising awareness. You're literally on a mission to abolish the death penalty. I would love to hear more about that. Okay, be

glad to. Witness to Innocence is anti death penalty organization which came to me approximately five years after I was out. The group consists of people that have been exonerated from death row and their family members and support members. We go around the country speaking to anyone that listened to us. We we've got this panel called Accuracy Injustice. We speak to prosecutors, we speak to judges, and we change a

lot of minds. I mean, we've helped abolish we haven't done it ourselves, but we've helped abolish the death penalty in about four states. How can people get involved? We have a website, Witness Innocence dot org that's witnessed Innocence dot org, a great organization. By the way, We have the link in the bio, along with links to the groups that help free Gary. Of course, I'm talking about the Equal Justice Initiative and the Southern Center for Human Rights.

So just scroll down and get involved. And now we come to the part of our show called closing Arguments, where I thank you both for sharing this remarkable story, and I'm just gonna turn my mic off, kick back, close my eyes and listen to anything. Do you have left to say anything on your mind at all, anything we left out, So we're gonna save the best for last, of course, and no offense to the great Richard Jaffey. But that means you, Gary, you're bat and clean up here,

so to speak. So Richard, the mic is yours. This case is the perfect example of every reason why the death penalty should be abolished, because everything that's wrong with

it is present in this case. One, it was a lottery that Gary ended up with the legal team he ended up with for the second trial, in particular the Southern Center for Human Rights, John May's Chris Adams, and and secondly, Gary got a new trial because of prosecutorial misconduct, and then then when a second trial begins, there was more prosecutorial misconduct. The case involved an investigation that was taking snitches words for things without corroborating it and verifying it.

It was truly a travesty that Gary was ever charged in the first place. So when you look at the death penalty and analyze it, this is the perfect example of why it simply doesn't work. It's arbitrary, and it's capricious, and it is snatching people that are good people out of society and wrongfully convicting them and subjecting them to losing their lives. Gary over to you. When I got off out of prison, I knew I had to get a different vocation other than construction because it still had

to hurt back. And I went to college. UH told the teachers what had happened, asked him could I get a job? They said yes. I signed up for respiratory therapy. I was doing good in class. I was doing great in clinicals. Six months before graduation. The hospital will hire you if you're doing good. Nurses warted me because I could feel the patient's pain and they wouldn't hire me. They laughed when they seen that I had been convicted of capital murder. They laughed, said, no hospital in the

country will hire you. That's still on my record witness to innocence. I saw what they were doing. UH saw the potential in the organization, and I said, definitely I would love to be a member. And to me, this is one of the best, most powerful anti death pitalty organizations around. Before this COVID thing, I was traveling probably once a month out just speaking engagement. But now since this COVID thing is going on, I sit at home and I hope somebody will call thank you for listening

to Wrongful Conviction with Jason Flammer. Please support your local innocence projects and go to the link in our bio to see how you can help. I'd like to thank our production team Connor Hall, Jeff Clyburne and Kevin Warns. The music on the show, as always, is by three time OSCAR nominated composer Jay Ralph. Be sure to follow us on Instagram at Wrongful Conviction and on Facebook at

Wrongful Conviction Podcast. Wrongful Conviction with Jason flam is a production of Lava for Good Podcasts in association with Signal Company Number one