Alabama death row inmate: Another innocent man?
Donnis George Musgrove has been on death row for 27 years but says he is innocent. Botched ballistics evidence and a questionable eyewitness identification may help him get a new trial.
Birmingham, Ala. — Anthony Ray Hinton, who spent 28 years on Alabama's death row for two murders despite his claims of innocence, walked free earlier this month after prosecutors admitted they couldn't prove his guilt.
Another inmate who maintains he was wrongly convicted in a separate killing is now challenging his death sentence in a case with eerie similarities to Hinton's, down to allegations of botched ballistics evidence, a questionable eyewitness identification and the judge and prosecutor who handled both trials.
Donnis George Musgrove, who been on death row for 27 years but says he is innocent, is asking a federal judge to overturn his case — the first step toward what his lawyers hope will be freedom for a man they contend was wrongly convicted during a trial fraught with unconstitutional errors, cooked-up evidence, prosecutorial misconduct, inept defense work and outright lies.
Experts have proven that a shell casing used during the trial to link Musgrove to the Sept. 27, 1986, slaying of Coy Eugene Barron had nothing to do with the crime, the defense claims, and police pressured Barron's wife to identify Musgrove as the shooter even though she first told police she saw nothing.
The Jefferson County prosecutor at Musgrove's trial used bogus evidence to win the conviction against an overmatched defense lawyer, just as he did to Hinton a few years earlier, the defense contends.
"We believe there were constitutional errors in his trial and they were so great he deserves a new trial," said Cissy Jackson, an attorney for Musgrove. "He was wrongly convicted."
While the state attorney general's office hasn't yet responded to Musgrove's arguments in court and declined comment this week, it has defended the conviction for nearly 30 years and once got the Alabama Supreme Court to reverse a lower state appellate court that overturned the case.
Musgrove's claims come at a time when capital punishment is under scrutiny in Alabama. Just in the weeks since Hinton was freed, another man who spent years on Alabama's death row also was released.
A ruling by a state judge cleared the way for the release on April 16 of William Ziegler, initially convicted in a 2001 killing in Mobile. A judge overturned Ziegler's conviction in 2012, and Ziegler was released after reaching a deal to plead guilty to a reduced charge of aiding and abetting a slaying in return for his release after more than 15 years behind bars.
Hinton was convicted of killing two workers during robberies at two fast-food restaurants in Birmingham in 1985. A survivor at a third restaurant robbery picked Hinton out of a photo lineup, turning investigators' attention toward him.
The only evidence linking Hinton to the killings were bullets that state experts at the time said had markings that matched a .38-caliber revolver that belonged to Hinton's mother, and the defense said Hinton was working at a locked warehouse 15 miles away at the time of the slayings.
A defense analysis during appeal showed that bullets did not match the gun, but the state wouldn't re-open the case. A breakthrough came last year when Hinton won a new trial after the U.S. Supreme Court ruled his trial attorney was "constitutionally deficient."
Faced with Hinton's claims of innocence, the Jefferson County district attorney's office this month moved to drop the case after their forensics experts agreed that the crime-scene bullets couldn't be matched to the gun.
Musgrove and co-defendant David Rogers were convicted of capital murder on Feb. 11, 1988, a few years after Hinton. Just as in Hinton's case, the two were tried before Jefferson County Circuit Judge James Garrett, who has since retired, by then Assistant District Attorney Bob McGregor, who has since died.
Police in north Alabama arrested Musgrove and Rogers — both convicted car thieves who had fled a state work-release center — following an auto chase weeks after Barron's slaying.
Barron's wife Libby initially told police she couldn't identify the men who entered their darkened home late at night and shot her husband in the bedroom, and at first she failed to select Musgrove out of a lineup, according to the defense. But the woman quickly identified Musgrove and Rogers after meeting privately with the detective, Musgrove's lawyers contend.
Prosecutors said a 9 mm shell casing found at the scene of Barron's slaying was linked to a pistol Musgrove used in an assault three months earlier, and jurors heard from a supposed jailhouse informant who claimed that Rogers told him about Barron's killing and implicated Musgrove.
But the informant, Billy Don Springer, later recanted in a sworn statement that said he'd been put up to the testimony by police and McGregor, the assistant district attorney who had prosecuted Hinton earlier.
The defense says in court documents that later scientific tests prove the 9 mm casing used as evidence against Musgrove was planted at the scene and wasn't tied to the crime at all. And besides, Musgrove's lawyers contend: Witness testimony and phone records showed he was in Florida, hundreds of miles away, at the time of the killing.
Add it all up, the defense claims, and Musgrove should be set free.
"To successfully plead actual innocence, a petitioner must show that his conviction resulted from a constitutional violation," Musgrove's lawyers wrote in court documents submitted to U.S. District Judge David Proctor, who is considering the case. "Here, the evidence shows decisively that Mr. Musgrove is innocent of the crime for which he was sentenced to death."
The challenge comes too late for help Musgrove's co-defendant Rogers, who died in prison.
While McGregor also is dead, he self-published a book in 2009 depicting both Hinton and Musgrove as cold-blooded killers. The book, titled "Whiskey Bent and Hell Bound," has a gun and a bottle of whiskey on the cover. The book depicts prosecutors as "white hats" and defense lawyers as "black hats" taking up for "bad men and blood spillers."
McGregor, whose zealous tactics were attacked by lawyers for Hinton and Musgrove, described Hinton's case as a favorite cause of "anti-death-penalty gangsters." Hinton, he wrote, "just radiated guilt and pure evil" — words that seem ironic now that Hinton is free based on a claim of innocence.
In the book, the prosecutor described Musgrove and Rogers as being "thugs" employed by a drug dealer who wanted Barron killed over suspicions he stole 40 pounds of marijuana.
"This act of ultimate violence was somewhat out of character since both were professional car thieves by trade," McGregor wrote. "But no one doubted that they were capable of murder if the price was right."
The man mentioned by McGregor as the alleged drug didn't testify against Musgrove and Rogers and was never prosecuted in the slaying.
"They had two guys on death row. That was all they needed," said Jackson, Musgrove's lawyer.