t    thought of and decided to place Shane in the freezer at her trailer.  Id., p. 26.  

t    created the story that Shane ran away and they found his body.  Id., p. 40. 

t    informed the local public school, right after Shane’s death, that she decided to remove her children to begin home schooling them.  Id., p. 2.   

t    said “I’m the one who spanks them [the children] a little harder than what they need.”  Id., p. 12.  

Most importantly, Ms. Coffman’s first statement on February 9^th culminated in a confession to having killed Shane.  Id., p. 18.  She indicated she lost control.  Id., pp. 13-20.  She said she did not mean to do it.  Id., p.19.  Her critical statements were as follows:

t    when confronted with “you killed him didn’t you?”she responded “I know.”  Id., p. 18. 

t    she had to be responsible because she was the only one messing with Shane, doing things to him, that day.  Id., pp. 27, 34.

t    “I’m the only one that did it, yes.”  Id., p. 34.   “Nobody touched that boy but me that day.”  Id., p. 35.   

t    “I know it was wrong to do what I did to Shane,” (Id., p. 30);  “I know in my heart what I did was wrong (crying) ....” and, “I know what I did was terribly, terribly, wrong.”  Id., p. 39. 

t    “I know I’ll get the death penalty (crying).  I know that.”  Why?  “Because I deserve that.”  Id., p. 39.

B.      Ms. Coffman Enters a Plea Bargain  

Upon charges being filed, Ms. Coffman and Mr. Gilson entered into a joint defense agreement.  Months later, Ms. Coffman  moved to sever the parties. She broke the joint agreement and entered a plea of guilty.  Her plea was entered after the judge indicated he would not sentence Coffman to death.  Appx., pp. 78-79.  Her attorney, Robert Perrine, stated the arrangement was for Ms. Coffman to enter a “blind” guilty plea, in which she would appear to face all possible sentencing options.  “The true nature of our understanding, however” stated Mr. Perrine, “was that Judge Lucas would impose a sentence less than death in exchange for her guilty plea to Murder in the First-degree.”  See Appx., pp. 81-82.  Judge Lucas acknowledged by affidavit that, based on case facts he learned at a pretrial hearing, he had decided Ms. Coffman’s “was simply not a death penalty case.”  Appx., p. 80.   The arrangement for Ms. Coffman’s guilty plea was made while Mr. Gilson’s counsel, Debbie Maddox, was out of town in Stillwater on a different murder trial.

Ms. Coffman’s plea was entered August 20, 1997.  Her sentencing, however, was deferred until after she testified at Mr. Gilson’s trial.  She ultimately received a life without parole sentence.  Juror Nancy Hawkins states: 

I had the impression at the time of Mr. Gilson’s sentencing that Ms. Coffman would receive a death sentence.  Had I known she was going to receive life in prison, I would have voted the same for Mr. Gilson.  

Appx., p. 32, para. 4. 

Counsel for Mr. Gilson is aware that a multitude of family members and friends have forwarded letters to the Pardon and Parole  Board on his behalf.  All of these letters question the fairness of imposing the death penalty upon Mr. Gilson under the facts and circumstances presented.   It is hoped these letters supporting Mr. Gilson will be given consideration by the Board.

II.      The Comparative Disproportionality to Ms. Coffman’s Life Sentence Supports Clemency.

Mr. Gilson’s jury could not reach agreement on what criminal conduct he was guilty of having committed.  This is demonstrated by the  split verdict as to whether he was the committer or the permitter.  It is also demonstrated by a juror’s account of the trial.  See Appx., p. 135.  Juror Timothy Grizzle states that “me and most of the jurors felt we didn’t know whether Mr. Gilson or Bertha Jean Coffman caused Shane Coffman’s death.”  Id.

We are in the unheard of situation of not even knowing what conduct the State intends to sanction with the ultimate penalty of death.  Clearly, some jurors believed Mr. Gilson simply “permitted” the offense.   The offense of permitting required “willfulness.” Written instructions provided to the jury stated that “Willful is a willingness to commit the act or omission referred to, but does not require any intent to violate the law, or acquire any advantage.”   See also Carla Mullins, “Guilty of Something:  Gilson v. State and the Death Penalty for Omission in Oklahoma,” 54 Okla.L.Rev. 647 (2001).  Appellate attorney Matthew Haire addresses for this panel the topic of the problematic features of application of Oklahoma’s capital child abuse murder statute in Mr. Gilson’s particular case.  See Appx., Section 3, Attached DVD of Matthew Haire. 

It was never established that Mr. Gilson ever intended to injure Shane Coffman.  Ms. Coffman attests to this herself.  Further, “permitting” was defined to mean “to authorize or allow for the care of a child by an individual when the person authorizing or allowing such care knows or reasonably should know that the child will be placed at the risk of abuse.”  Emphasis added.  Thus, to be found guilty of permitting, Mr. Gilson was not required to be aware any abuse was occurring.  The execution of Mr. Gilson would expand application of Oklahoma’s child abuse murder doctrine to the extreme.  This panel can recommend some modification in Mr. Gilson’s circumstances to avoid that extreme. 

Furthermore, Ms. Coffman, the more apparent committer of the offense, was given a life sentence.   Jurors who sentenced Mr. Gilson to death, and who did not know at the time that Ms. Coffman was going to receive a life sentence, now feel that Mr. Gilson’s death sentence is unfair.  See Appx., pp. 132-36.  One juror states her belief that Ms. Coffman, as the biological mother, had more responsibility than Mr. Gilson for her son’s death.  Appx., p. 132.  And some of the jurors state or otherwise indicate that had they known Ms. Coffman would receive a life sentence, they would have voted for the same for Mr. Gilson.  See, e.g.,  Appx., pp. 132, 135.  Importantly, it only takes the vote of a single juror in Oklahoma to mandate a life sentence for the defendant – i.e., death verdicts must be unanimous. 

Further support that Ms. Coffman was likely responsible for causing Shane’s death is the fact that neglect and abuse (both physical and sexual) of the Coffman children had been going on for a long, long time before Don Gilson entered the picture.  See Appx., pp. 58-65.  Ms. Coffman’s past boyfriend Russell Whitley, a pedophile, had sexually molested the Coffman children, boys and girls, on an ongoing basis from 1992 to 1994.  According to a 1994 DHS report, as well as other documents, the Coffman children were reportedly having sexual relations or otherwise sexually molesting each another.  See Appx., pp. 6-74.  This is the situation into which Mr. Gilson, with a severe mental handicap, entered.

At least four of Mr. Gilson’s jurors feel it is unfair that Don received the death penalty when Ms. Coffman received a life sentence.  See Appx., pp. 132-36.  Two jurors state they would be relieved if Mr. Gilson’s sentence was commuted.  Id.,  pp. 132, 135.  The jurors’ affidavits support Mr. Gilson’s respectful request for clemency.

III.    Mr. Gilson’s Permanent Brain Damage Sustained Prior to the Offense Supports Clemency

Don Gilson suffers from extensive, irrevocable brain damage.  This damage was sustained 1½ to 2 years prior to his forming a relationship with Ms. Coffman.  Expert evaluations and assessments of Mr. Gilson’s brain damage reveal mental deficits which are causally connected to his involvement in the instant circumstances offense and which landed him on Oklahoma’s death row.

The 1993 Auto Accident

On March 12, 1993, Mr. Gilson sustained near fatal injuries in a deadly auto accident.  He was temporarily paralyzed, and suffered prolonged unconsciousness.  Treating doctors doubted he would survive. 

The force of the impact caused severe head injuries, including multiple, extensive facial and cranial fractures.  Mr. Gilson’s skull was literally bashed.  He sustained frontal temporal skull fractures and multiple basilar skull fractures.   He also suffered contusions of the right frontal lobe and a portion of the left frontal lobe of his brain.  CT scans and MR images document this damage.

As stated by one expert, Mr. Gilson suffered “extremely severe frontal lobe and contre-coupe” injuries, resulting in permanent organic brain damage.  See Appx., p. 87.  Dr. Hopewell summarized the damage as a “classic pattern of diffuse frontal lobe and more severe right hemisphere damage resulting in severe executive and personality dysfunction.”  Id., p. 102.  Dr. Hopewell also observed minor contusive changes to the left frontal lobe, noting even “minor” injuries to such areas can have “major consequences in terms of functional changes.”  Id., p. 88.  He further noted Mr. Gilson’s brain had “bulged” through a bony defect at the right orbital roof.  Id.    In 1999 a radiologist evaluated the CAT scans and additional MRI scans that had been taken.  His evaluation supported Dr. Hopewell’s findings.  See Appx., pp. 105-07.  The Radiologist’s findings were substantial:

[S]evere brain trauma with involvement of approximately 40% of the volume of the right frontal lobe and 1/3 of the volume of right temporal lobes of the brain.  This is very significant in terms of damage to the brain and residual behavioral and other consequences resultant therefrom.

Id., p. 106. 

These expert findings have been verified most recently by Neuroradiologist  Linda Anne Hayman.  See Appx., pp. 110-13.  As reflected in her Affidavit, Dr. Hayman is experienced in review and analysis of radiological scans of the brain and assessment of neurological damage and injury to the brain.  Dr. Hayman concurs with the previous experts that Mr. GIlson has significant brain damage.

Effects of the brain damage on Gilson’s behavior

Without doubt, Don Gilson’s brain damage had repercussions on his personality and  behavior.  Dr. Hopewell described the effects as severe executive and personality dysfunction, stating “the result is decreased ability to self-regulate behavior or inhibit impulses - referred to as ‘disinhibition syndrome.’”  Appx., p. 95.  Thus, Mr. Gilson “will often act before thinking,” as seen in schizophrenics.  Id.  A third expert, Neurologist Jay Rosenblum, confirmed the existence of a direct causal relation between Gilson’s brain damage and his behavior at issue.  Appx., p. 109.     Dr. Rosenblum described Mr. Gilson’s damage, neurologically, as “very significant, and noted  serious concerns regarding “the temporal lobe ... which is intermittently involved with rage,” and “the frontal lobe [which] is intermittently involved with higher brain functions such as inhibition, memory, and judgment.”  Id. Dr. Rosenblum opined that with Mr. Gilson’s level of damage, “I would expect severe behavioral abnormalities.”  Id.

In partial contrast to the opinions of Drs. Hopewell and Rosenblum, a 1996 assessment by Psychologist Philip Murphy determined the effects of Mr. Gilson’s brain damage would likely cause him to be submissive.  Specifically, Dr. Murphy determined that “[t]he most significant finding from this testing was his level of interpersonal dependence or submissiveness.  This index was highly elevated above normal and would indicate that, especially in new or unusual circumstances, he would become very submissive to another person.”  Appx., p. 84.  Dr. Murphy further states that “[p]ersonality temperament assessment found that his personality is best described as withdrawn, anxious, dependent and submissively resigned.”  Id.

The effects described by Dr. Murphy would likely make Mr. Gilson more vulnerable  to anyone -- such as a distressed woman with six children whom she is unable to clothe, shelter, and feed -- striving to take advantage of him. 

          Dr. Hayman’s most recent evaluation of Mr. Gilson’s injuries sheds further light on the subject.  From reading Mr. Gilson’s CT and MRI scans Dr. Hayman is able not only to pinpoint precisely where damage to the brain has been sustained, but also determine the physiological and behavioral effects that invariably result therefrom.       Mr. Gilson clearly suffers permanent damage to various parts of his brain.  Appx., p. 111.  Most notably, he has significant damage to two major circuits running through the frontal lobe regions.   Id., p. 112.  Damage to each one of these pathways carries with it a distinct set of functional deficits, i.e. - specific deleterious effects on behavior.  Thus, in Dr. Hayman’s opinion, Mr. Gilson would be expected to exhibit multiple, mixed mental deficits.  These deficits range from poor organizational skills, inability to plan ahead, immobility, lack of motivation, inability to change tasks, and deficits in abstract thinking -- to disinhibition, poor impulse control, and lack of feelings of empathy toward others.   Id., p. 112-13. 

Dr. Hayman’s opinion as to expected functional and behavioral effects is borne out by the observations of numerous of Mr. Gilson’s family members and friends.   These acquaintances have attested to the brain injuries’ effects on his behavior post-accident.  See Appx., pp. 119-131.  Mr. Gilson’s mother observed “definite changes in Donald’s behavior and thinking.”  Id., p. 119.  He became withdrawn, developed new and peculiar habits, had memory loss and suffered repeated headaches.  Id.  His hygiene deteriorated and he was less aware of his surroundings.  Id., p. 120.  He sometimes seemed to be off in never-never land.” Id., 128.  Many other acquaintances describe Mr. Gilson has having become more withdrawn and less personable and sociable.  He no longer carried on conversations with friends like he had in the past.   His former employer stated Mr. Gilson, after the accident, became “more impulsive and his emotions ran higher. Id., p. 123.  

The changes in Mr. Gilson’s personality and behavior are also described by numerous family members and friends in the many letters sent to this Board.   Most of these descriptions are consistent with the experts’ respective opinion.  Again, it is hoped that these letters will be given consideration.  

Regardless of his role in Shane Coffman’s death, Mr. Gilson’s brain damage contributed to his involvement with Ms. Coffman and his behavior with the Coffman family.   As his stepfather and others have stated, absent the brain impairment Don most likely would never have gotten himself entangled with a woman such as Ms. Coffman, and her children, in the first place.  Id., p. 121.  Moreover, with his depleted mental capacity, Mr. Gilson found himself enmeshed in a deeply dysfunctional family replete with a long history of not only neglect but also emotional, physical, and sexual abuse - a situation which most of us are not equipped, and indeed require specialized training and knowledge, to handle.  Though well-meaning, with intentions to help fix Ms. Coffman’s problems and provide support for her and her children, Mr. Gilson situated himself into a  predicament which he, especially with his mental deficits, was simply not equipped to handle.

Mr. Gilson’s jury never heard the evidence of his extensive brain damage.   The jury should have learned of this evidence at Mr. Gilson’s mitigation proceedings.  Juror Frederick Penrose states had this evidence been presented,  “I would certainly have considered it.”  See Appx., p. 133.  Juror Penrose further states he would have been “influenced”  by “evidence of Mr. Gilson’s head injuries.”  Id., p. 133-34.  He memorably discusses how head injuries and the behavioral consequences thereof is of special relevance to him, in that his father suffered a serious head injury in World War I, and returned home from the war a different person.  Id.   

In Mr. Gilson’s case, because his trial counsel failed him, his jurors never learned about his near fatal auto accident and the resultant extensive brain damage which has effected his life, personality, and behavior.  This powerful mitigating evidence goes a long way in explaining Mr. Gilson’s instant offense. 

IV.    Conclusion