BY FAX: 334-242-0937

Honorable Don Siegelman
Office of the Governor
Alabama State House
Montgomery, AL 36130

Re:      Gary Leon Brown

Dear Governor Siegelman:

On behalf of the American Civil Liberties Union, we urge you to stay indefinitely the execution of Gary Leon Brown, which is currently scheduled for April 5, 2002, and commute his sentence to imprisonment for a term of years or to life imprisonment with eligibility for parole.  As described below, the fact that Mr. Brown was not the main perpetrator of the crime and the other, more culpable defendant received only a life sentence as well as issues of ineffective assistance of counsel merit this extraordinary relief.  

Three men were charged with the murder of Jack McGraw:  Archie Bankhead, James Bynum, and Gary Brown.  According to the two prosecutors who tried this case, Mr. Archie Bankhead was the  moving force and the  main man in this operation.   Despite being considered the ringleader and instigator of the murder, Mr. Bankhead received a sentence of life without parole.  Mr. James Bynum was convicted of the lesser-included offense of felony murder and has since been released on parole even though prosecutors considered him  as least as guilty as Brown and Bankhead.   

Only Mr. Brown received the death penalty.  Importantly, one of the former prosecutors in Mr. Brown s case, Bob McGregor, who is now an Assistant U.S. Attorney in Birmingham, has stated that executing Mr. Brown would be a  gross injustice in light of the sentences of the other two defendants.  Additionally, several of the jurors later said that they would not have sentenced Mr. Brown to death if they had known of the other defendants sentences.  

Since the death penalty was reinstated in 1976, there have been at least six grants of executive clemency to death row inmates based on the disproportionality of sentences between co-defendants.  

Furthermore, Mr. Brown suffered from egregious ineffective assistance of counsel.  Mr. Brown s appointed trial counsel only billed the State for 16 hours of out of court trial preparation time.  It is well known that in order to provide truly effective representation in a capital murder case, defense counsel must devote much energy to the factual investigation prior to trial and to the presentation of mitigating evidence at the penalty phase.  Sixteen hours of out of court preparation time is an insulting and ludicrous amount of time to prepare for a capital murder defense.  

The disparity of Mr. Brown s death sentence with the life sentence of the more culpable defendant in addition to the amount of time Mr. Brown s trial counsel spent on his case outside the courtroom exemplifies the unfair and uneven imposition of the death penalty.  The State is about to execute a man whose sentence would have likely been different had he been awarded all the protections intended by the system of justice and received by some.  The only thing that can remedy this injustice is an act of grace and mercy with which the Governor is empowered.  

Although the ACLU opposes capital punishment in all cases as a barbarous anachronism and in violation of the Constitution, we are ever more convinced that the sentence in this case is unfair and urge you to grant clemency for a defendant facing the death penalty for a crime in which his role was secondary.

Sincerely,

Diann Rust-Tierney
ACLU Capital Punishment Project

Olivia Turner
ACLU of Alabama

Kara Mather*
Pro Bono Counsel
Squire, Sanders & Dempsey L.L.P.

Admitted in Maryland.  Admittance in the District of Columbia Bar pending; supervision by James Dick, a member of the District of Columbia Bar.