Justices toss out man's conviction 19 years later

By Steve Korris | Jun 20, 2008

CHARLESTON – Nineteen years after Cabell County jurors convicted Gary Allen Gibson of conspiracy in a prison killing, the West Virginia Supreme Court of Appeals has set aside his conviction.

All five Justices agreed June 12 that Gibson's trial judge improperly ordered defense witnesses to wear prison clothes and shackles.

The judge allowed inmates who testified against Gibson to take the stand in civilian clothes, without shackles.

The Justices held in an unsigned opinion that "it would be illogical to conclude that the witnesses' contrasting appearance did not appreciably impact the jury's assessment of the witnesses' credibility."

They affirmed Circuit Judge David Pancake, who in 2006 set aside Gibson's conviction on charges that he conspired to kill inmate Danny Lehman at Moundsville penitentiary.

Lehman died in 1986, of stab wounds. Inmate Gary Gillespie claimed he killed Lehman in self defense, acting alone.

Cabell County prosecutors suspected a conspiracy, however, and grand jurors indicted five inmates on conspiracy charges.

The Supreme Court opinion does not explain why a murder in Marshall County led to proceedings in Cabell County.

At trial in 1989 before Judge L.D. Egnor, Gibson planned to call seven Moundsville inmates as witnesses.

Egnor ordered all seven "bound and shackled for security reasons." The order did not require prison clothing, but all seven wore prison clothing on the stand.

Four inmates testified they were with Gibson in a different area during the attack, and one testified that he stood near the murder and Gibson did not.

The state countered with testimony from inmates Ervil Bogard and Wallace Jackson, who received transfers to other facilities in exchange for their testimony.

Egnor ordered the Department of Corrections to furnish Bogard and Jackson with "one noninstitutional shirt and pair of pants for trial."

Jackson testified that Gibson and others talked about killing Lehman. He said Gibson stood less than 15 feet from the murder.

Bogard testified that a day before the murder, inmates asked him to make sure no one from Lehman's gang jumped in to help him.

On the night of the murder, Bogard said, he watched inmates lure Lehman to the spot where Gillespie, Gibson and others waited.

Jurors convicted Gibson. He filed a habeas corpus petition in Marshall County, and a judge there directed him to seek relief in Cabell County.

Gibson complied, and Pancake set aside his conviction.

Attorney General Darrell McGraw appealed, without success.

"The critical evidence regarding whether Defendant was a co-conspirator in the murder of Danny Lehman was provided by a procession of incarcerated witnesses who testified on behalf of both Defendant and the State," the Justices wrote. "Thus, this case was largely a credibility battle, and the jury's verdict hinged on whose version of events the jury chose to believe.

"Accordingly, this Court cannot understate the impact on the jury of the glaring disparity in the witnesses' physical appearance."

The opinion doesn't say what the victory means to Gibson, besides clearing his name.

He pleaded guilty to a charge of voluntary manslaughter in 1978, and he pleaded guilty to burglary charges in 1982 and 1985.

The third plea led to a sentence of life imprisonment.

His attorney, Lee Booten II of Huntington, did not respond to a request for comments.

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