BIRMINGHAM, Ala. (AP) — An Alabama inmate who has spent almost 30 years on death row for a murder he denies committing has an unusual supporter in his bid for freedom: A state judge who once represented the man’s co-defendant while working as a defense lawyer.
Jefferson County Circuit Judge Tommy Nail told The Associated Press in an interview this week he believes Donnis George Musgrove and another man were wrongly convicted of capital murder in 1988, and he hopes a federal court now reviewing Musgrove’s appeal corrects the error.
“I really think they got a raw deal and I’ve always felt they were not guilty of this offense,” Nail said during an interview in his office.
A judge since 1999, Nail represented David Rogers when Rogers and Musgrove were convicted in the 1986 gunshot killing of Coy Eugene Barron. Both men received the death sentence.
Rogers and Musgrove were best friends and career car thieves, Nail said, but both always denied having any role in Barron’s shooting.
Nail said he believed their claims of innocence then and still believes them today, particularly after learning of “eerie” similarities between their trial and the case of Anthony Ray Hinton, another Alabama death row inmate who was freed recently after proclaiming his innocence for years.
The same judge, prosecutor and forensic expert were involved in the cases against Musgrove and Rogers and Hinton, he said. Each case also involved questionable weapons analysis, defendants with solid alibis and allegations of prosecutorial overreach, he said.
“I would hope somebody would see all of these things and try to correct these things,” Nail said. “But it’s a very tough process.”
Rogers died of natural causes on death row, but Musgrove, 66, is currently asking a federal judge in Birmingham to overturn his conviction and death sentence. He has been on death row for 28 years.
Prosecutors haven’t filed written responses to Musgrove’s claims, and Attorney General Luther Strange’s office declined comment on Nail’s remarks. But the state has defended the conviction since Musgrove’s earliest appeals.
A federal judge has given prosecutors until June 8 to respond to Musgrove’s arguments that he was wrongly convicted.
Barron was shot to death on Sept. 27, 1986. Prosecutors said two men entered his home in the middle of the night and opened fire.
The state’s main witness, Barron’s wife Libby, initially told police she couldn’t identify the killers from the darkened home, and at first she failed to select Rogers and Musgrove out of a lineup, Nail said. She even wrongly identified two plainclothes police officers as the killers, Nail said.
“Then, 10 minutes later when the detective talks to her, they bring her back and she positively IDs both of them,” said Nail, calling the identification “shaky.”
Forensic evidence also was important in the trial.
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. But later testing showed that the shell casing found at the murder scene was planted and not linked to the crime at all, Musgrove’s current attorneys contend.
Jurors heard from a supposed jailhouse informant who claimed Rogers told him about Barron’s killing and implicated Musgrove, but the informant later recanted and said he’d been put up to the testimony by police and the late Bob McGregor, an assistant district attorney who also prosecuted Hinton.
Given all the questions, Musgrove’s federal petition “raises a pretty strong presumption” of innocence, Nail said.
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